Mansour v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2019-11-15|Before: Yates J

The Application for extension of time and leave to appeal filed on 11 October 2016 be dismissed.
The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for extension of time and leave to appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court). The Federal Circuit Court summarily dismissed the applicant's application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).

Background 2 The applicant is a citizen of Lebanon. On 5 October 2005, he applied for a subclass 820 visa (Partner - Temporary Class UK) (the temporary visa application) and a subclass 801 visa (Partner - Permanent Class BS) (the permanent visa application) on the basis of his relationship with his sponsor. In this connection, the applicant and his sponsor were married on 4 September 2005 under a marriage that is recognised as valid for the purposes of the Migration Act 1958 (Cth) (the Act). The applicant had arrived in Australia some months earlier, on 13 April 2005, as the holder of subclass 300 visa (Prospective Marriage), sponsored by another person. 3 The temporary visa application was refused by a delegate of the relevant Minister at the time (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister)) on 14 February 2006. The essential reason for this refusal was that, notwithstanding the marriage that had taken place, the delegate was not satisfied that the applicant was, in fact, the spouse of the sponsoring partner, within the meaning of reg 1.15 of the Migration Regulations 1994 (Cth) (the Regulations). As this decision meant that the applicant was not, therefore, the holder of a (temporary) subclass 820 visa, he could not then satisfy the requirements for a (permanent) subclass 801 visa (the granting of which required the applicant to hold the temporary visa). His permanent visa application was refused accordingly. 4 The applicant sought review by the Migration Review Tribunal of the decision to refuse the temporary visa application. The Migration Review Tribunal's Decision Record helpfully sets out the following general background: There is a two stage process for partner visas. The visa applicant must hold a provisional visa, a Partner (Temporary) (Class UK) visa, in order to be granted a permanent visa, a Partner (Residence) (Class BS) visa. The grant of the provisional visa enables a visa applicant to remain in Australia on a temporary basis. The temporary visa can be replaced by the grant of a permanent visa in a range of circumstances, normally once at least 2 years has passed since the application was made, and the decision-maker is satisfied that the relationship is continuing. The Partner (Temporary) (Class UK) visa class contains the following subclasses: Subclass 820 (Spouse), and Subclass 826 (Interdependency). The only subclass in respect of which any claims have been advanced is Subclass 820. The visa applicant did not seek the visa on the basis of an interdependent relationship and there is no suggestion that the visa applicant meets key criteria for the other subclass. The criteria for a Subclass 820 visa are set out in part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria to be satisfied at the time of application are that the applicant is not the holder of the a Subclass 771 (Transit) visa and that he or she meets one of the alternate requirements set out in cl.820.211(2), (3), (4), (5,), (6), (7), (8) or (9): cl.820.211(1) of Schedule 2 to the Regulations. In the present case, only cl.820.211(2) is relevant to the visa applicant's claimed circumstances. Clause 820.211(2) requires that at the time of application the visa applicant be the spouse of an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is not prohibited by cl.820.211(2B) from being a sponsoring spouse. The visa applicant must be sponsored by the spouse, or where the spouse has not turned 18, by a relevant parent or guardian. The primary criteria to be satisfied at the time of decision are that the visa applicant continues to meet the requirements of cl.820.211(2), (3), (4), (5), (6), (7), (8) or (9) except where the sponsoring spouse has died, or the relationship or relevant domestic violence has occurred or where the visa applicant and sponsor have legal obligations to a child: cl.820.221(1) of Schedule 2 to the Regulations. The issue in the present case is whether the visa applicant is the spouse of the sponsor at the time of application and the time of decision. 5 After discussing the evidence before it, and making certain findings (which need not be repeated here), the Migration Review Tribunal reached the following conclusion: The Tribunal is not satisfied that, at the time of the visa application, the visa applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and that their relationship was genuine and continuing and that the visa applicant and the sponsor were living together or not living separately and apart on a permanent basis. The Tribunal is therefore not satisfied that at the time of application the visa applicant was the sponsor's spouse within the meaning of r.1.15A of the Regulations. Accordingly, the visa applicant does not satisfy cl.820.211(2). As none of the other subclauses of 820.211 are relevant to the visa's applicant's circumstances, the visa applicant cannot meet cl.820.221(1) and cannot be granted a Subclass 820 visa. It follows that the visa applicant does not meet the criteria for a Class BS visa, which requires the visa applicant to be the holder of a Subclass 820 visa. 6 The Migration Review Tribunal therefore affirmed the decision not to grant the applicant's temporary visa application. The applicant did not seek judicial review of the decision, which was made on 24 November 2006. 7 Subsequently, the relevant Department came to the view that there was an error in the delegate's decision (made on 14 February 2006) to refuse the applicant's permanent visa application. According to the primary judge, the error was that the original notification provided to the applicant of the refusal decision did not state the relevant legislative criterion which led to that decision. On 3 September 2015, some nine and a half years later, the applicant was notified that a new decision had been made to refuse that application. The reason for this refusal was that the applicant did not meet the legal criteria set out in cl 801.221 of Sch 2 to the Regulations. Essentially, the applicant was not the holder of a subclass 820 visa and did not otherwise satisfy the criteria for a subclass 801 visa. The applicant then sought review of this refusal decision by the Tribunal. 8 When the matter came before the Tribunal, the applicant sought to agitate the merits of his temporary visa application. However, this matter had already been determined by the Migration Review Tribunal many years before on 24 November 2006, adversely to the applicant. The only issue properly before the Tribunal was whether the applicant met the legal requirements for a subclass 801 visa - the permanent visa. The Tribunal concluded that the applicant did not meet those requirements. In summary, the applicant did not meet the requirements of sub-cls 801.221(2), (2A), (3), (4), (5) or (6) of Sch 2 to the Regulations because he was not the holder of a subclass 820 visa, and he did not meet the requirements of sub-cl 801.221(8) of Sch 2 to the Regulations because he had not held a subclass 820 visa that ceased on notification of the decision of the Minister to refuse him a subclass 801 visa. The Tribunal therefore affirmed the decision under review.

The Federal Circuit Court 9 The applicant sought judicial review in the Federal Circuit Court of this decision. The grounds of his application were expressed as follows: 1. My application was lodged on 5 October 2005. The Department refused my application and then re-opened the case and then refused the application again on 3 September 2015. The Tribunal's decision is unfair because the Department ruined my life since 14 February 2006. 2. I ask the Honourable Court to consider this matter as at 2006 because at the time my relationship was genuine even my then wife was pregnant and miscarried and I believe that the department fell into error of law by refusing our application during which time we had genuine relationship. 3. I wish to submit more information when I receive copy of my file. 10 The applicant's application for judicial review was listed for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At the hearing, the primary judge dismissed the application for judicial review, finding (at [17] - [19]): 17. In relation to Ground 1 of the application, on the material before the court, the Tribunal's review was conducted in accordance with the statutory regime and there is nothing to establish that the Tribunal's hearing was unfair within the statutory regime. Whilst the applicant may well be unhappy with the result of the decision on 14 February 2006, this Court's jurisdiction, as was the Tribunal's, is confined to considering the relevant criteria in respect of the particular BS Partner (Residence) Subclass 801 visa, the subject of the renotified decision. Ground 1 fails to identify any arguable case of jurisdictional error. 18. Ground 2 is in substance an endeavour to re-agitate the decision in 2006 which is not the subject of the review by the Tribunal. Ground 2 fails to identify any arguable jurisdictional error in relation to the decision of the Tribunal. 19. Ground 3 simply identifies a desire to submit information. In the course of the hearing, the applicant produced a doctor's certificate that was marked "MFI1". The doctor's certificate was not before the Tribunal and went to the merits of the 2006 visa decision which was not the subject of the renotification. Ground 3 fails to identify any arguable jurisdictional error. 11 The present application is directed to this judgment.

The present application 12 The present application is brought under r 35.14 of the Federal Court Rules 2011 (Cth). The applicant requires leave to appeal from the Federal Circuit Court's judgment because that judgment is interlocutory in nature. An application for leave to appeal should have been filed within 14 days after the Federal Circuit Court's judgment had been pronounced. The present application was filed 18 days after the time by which an application for leave to appeal should have been filed. In his affidavit accompanying this application, the applicant does not give any explanation for the delay. 13 The grounds of the present application state: 1. His Honour failed to accept that the Tribunal fell into error of law and failed to accept that my circumstances were compelling at the time the Tribunal made a decision to refuse my partner visa. 2. I am looking forward to receive [sic] the judgment to argue my case. 14 The applicant's draft notice of appeal contains three grounds, expressed as follows: 1. His Honour failed to accept that the Tribunal fell into error of law even though I was not the holder of 820 visa but I established that my circumstances were compelling at the time the Tribunal made a decision to refuse my partner visa. 2. I presented my argument to the Tribunal on 17 February 2016 and proved that the Department made an error by refusing my application. 3. I have not yet received the full judgment to properly argue my grounds. 15 On 17 October 2016, the following order was made: 5. No later than ten (10) business days before the hearing date the applicant file and serve a written outline of submissions upon which the applicant seeks to rely in support of the application, and in support of any appeal were the Court to grant an extension of time and/or leave to appeal, so that the Court is able to assess in the application whether there is any utility in granting the extension of time and/or leave to appeal. 16 The applicant has not complied with that order. However, at the hearing of the present application he produced a written outline of submissions making reference, in particular, to the Full Court's recent decision in Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49 (Mohammed). The Minister raised no objection to the applicant relying on these submissions, even though previous notice of them had not been given. 17 The submissions raise two principal matters. First, the applicant contends that he was denied procedural fairness because he was not informed that a certificate had been issued to the Migration Review Tribunal under s 375A of the Migration Act 1958 (Cth) (the Act) in respect of certain documents. Secondly, the applicant contends that the Full Court decision in Mohammed covers the present application. I will deal with each of these matters in turn, before considering the grounds of the application and the proposed grounds of appeal identified in the draft notice of appeal.

The certificate 18 Section 375A of the Act provides: (1) This section applies to a document or information if the Minister: (a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and (b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal. (2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies: (a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and (b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. 19 The certificate in the present case certified that: … the disclosure, otherwise than to the Migration Review Tribunal, of any matter or information contained in folios 42 and 43 of Departmental file CLF2005/84805 would be contrary to the public interest because they contain personal information relating to individuals other than the review or visa applicant. 20 The certificate continued: The document or information referred to in the paragraph above must only be disclosed to the Migration Review Tribunal. 21 The first thing to note is that the certificate was addressed to the Migration Review Tribunal in connection with its review of the refusal to grant the applicant a subclass 820 visa. As I understand the position, neither the existence of the certificate nor the information in the documents covered by the certificate were disclosed to the applicant in the course of that review. The documents are in evidence before me. Copies of them have been provided to the applicant by means of an affidavit which was filed on 23 June 2017. The documents contain information regarding the movement records, and home address, of the applicant's other sponsor for the subclass 300 visa to which I have previously referred: see [2] above. As such, the information could have had no bearing on the decision whether the applicant met the criteria for, and was entitled to, a subclass 820 visa sponsored by a different person. 22 As I understand the position, neither the existence of the certificate nor the information in the documents covered by the certificate were disclosed to the applicant in the course of the review before the Tribunal, many years later, in relation to the new decision to refuse the applicant a subclass 801 visa. I cannot see what possible relevance the certificate or the information could have had for that review. Certainly there is nothing in the Tribunal's reasons in its Decision Record to show that the Tribunal had any regard to this information for the purpose of determining the review then before it or, indeed, to indicate that the Tribunal had, or was even aware of, that information or the certificate that had previously been directed to the Migration Review Tribunal. Therefore, even though the certificate and the information covered by it were not disclosed to the applicant in the course of the Tribunal's review in relation to the new decision, that circumstance could not possibly result in the Tribunal's decision being affected by jurisdictional error.

The decision in Mohammed 23 In Mohammed, the primary judge (in the Federal Circuit Court) held that a decision to refuse the applicant, Mr Mohammed, a subclass 801 visa was affected by jurisdictional error on the ground of legal unreasonableness. The appeal to this Court was dismissed by a Full Court. The salient facts are these. 24 As in the present case, Mr Mohammed applied for a (temporary) subclass 820 visa and a (permanent) subclass 801 visa on the basis of his marriage to his sponsor. The applications were refused because Mr Mohammed did not satisfy the requirements for a subclass 820 visa and was unable, therefore, to satisfy the requirements for a subclass 801 visa. 25 Mr Mohammed sought merits review of the decision in the Migration Review Tribunal. The Migration Review Tribunal affirmed the decision under review. However, in doing so the Tribunal applied Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; 116 FRC 557 (Boakye-Danquah). The effect of doing so was that, when applying discretionary considerations potentially relevant to the grant of the temporary visa application, the Migration Review Tribunal limited its consideration to those circumstances existing at the time that Mr Mohammed made his visa application. Mr Mohammed did not seek judicial review of the Migration Review Tribunal's decision. 26 Subsequently, Mr Mohammed was notified that the Department had identified an error in the earlier decision concerning his application for a subclass 801 visa and that a new decision had been made on that application. As the Full Court recorded at [8] of its reasons: 8 … In that new decision, a different delegate of the Minister also refused Mr Mohammed's application for a Permanent Partner visa but this time on the grounds that he neither held, nor had held, a Temporary Partner visa … (Emphasis added) 27 This explanation suggests that the reason given for the original refusal of Mr Mohammed's application for a subclass 801 visa was not that he had not held or did not hold a subclass 820 visa, but because he did not satisfy some other criterion or criteria for the visa, or that there were, at that time, other disqualifying circumstances. 28 Mr Mohammed sought review of the delegate's new decision in the Tribunal. The Tribunal affirmed the decision. Mr Mohammed then sought judicial review of the Tribunal's decision. However, after the Tribunal's decision was given, but before Mr Mohammed's application for judicial review came on for hearing in the Federal Circuit Court, the Full Court gave judgment in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32; 241 FCR 121 (Waensila). The effect of Waensila was to overturn Boakye-Danquah. As the Full Court in Mohammed expressed the outcome (at [11]): 11 … The effect of the decision of the Full Court was that, relevant to the present case, it had been an error of law for the Tribunal to have confined its consideration of the criteria which had been dispositive of Mr Mohammed's earlier unsuccessful application for a Temporary Partner visa to those applying as at the time of a review applicant's original application. 29 In light of the decision that had been given in Waensila, the Minister consented to Mr Mohammed amending his extant application in the Federal Circuit Court to enable him to seek judicial review of the Migration Review Tribunal's earlier decision (see [25] above), with all necessary extensions of time being granted. The Minister also consented to the Federal Circuit Court thereupon setting aside the Migration Review Tribunal's earlier decision and remitting that particular matter to the Tribunal for redetermination according to law. The appropriate orders were made by the Federal Circuit Court when Mr Mohammed's judicial review application came on for hearing. This, however, left for determination Mr Mohammed's application for judicial review of the Tribunal's decision concerning the new decision to refuse his application for a subclass 801 visa. Put simply, the original decision to refuse Mr Mohammed a subclass 820 visa was remitted to the Tribunal for redetermination, but the new decision in respect of his application for a subclass 801 visa (which was based on the fact that Mr Mohammed did not hold a subclass 820 visa) remained for judicial review. 30 Although the primary judge rejected the grounds of review that Mr Mohammed advanced, she reasoned that it was legally unreasonable for the Tribunal to refuse Mr Mohammed a subclass 801 visa on the grounds that he did not have a subclass 820 visa, in circumstances where the Minister had acknowledged that the earlier Migration Review Tribunal decision in relation to the subclass 820 visa was affected by jurisdictional error. In essence, her Honour found that, at the time the Tribunal had come to consider the decision concerning the application for the subclass 801 visa there was, in legal effect, an outstanding review application by Mr Mohammed for a subclass 820 visa. In law, the latter application had to be determined before the Tribunal could determine, in the context of considering the application for the subclass 801 visa, that Mr Mohammed did not hold, and had never held, a subclass 820 visa. Her Honour said (Mohammed v Minister for Immigration & Anor [2018] FCCA 2893 at [31]): 31. It seems to me that, in the circumstances, the only reasonable approach was for the Tribunal to adjourn the hearing in relation to the subclass 801 permanent partner visa application until after the Tribunal had validly determined the subclass 820 temporary partner visa application. That is so, even though the Tribunal did not know, and could not have known, that the existing Tribunal decision in relation to the subclass 820 temporary partner visa application was no decision at all. That is, the Tribunal's decision on the subclass 801 permanent partner visa application was unreasonable in a legal sense and must be set aside. 31 On appeal, the Full Court reasoned that to focus upon whether the Tribunal had failed to grant an unsought adjournment might not address the correct question; a conclusion on legal unreasonableness may be reached on an outcome focused analysis in the absence of a specific error being capable of being ascertained. The Full Court said that it was unnecessary for the primary judge to have identified a particular error (and even less so fault) on the Tribunal's part to in order to reach the conclusion of legal unreasonableness. 32 Nonetheless, the Full Court held that the primary judge did not err in her ultimate conclusion. Indeed, the Full Court held that, because the earlier Migration Review Tribunal decision concerning the application for the subclass 820 visa had been set aside, it became the duty of the primary judge to approach Mr Mohammed's judicial review application on the basis that, in law, the Tribunal still had Mr Mohammed's valid and as yet undetermined application for a subclass 820 visa before it when it made the decision to affirm the delegate's decision to refuse Mr Mohammed's application for a subclass 801 visa. The Full Court said that, in those circumstances, the further orders made by her Honour setting aside the Tribunal's decision in respect of the subclass 801 visa application were inevitable, and involved a routine application of the law that where a decision is no decision at all, it cannot stand as a foundation for further decisions. The Full Court thus dismissed the appeal with costs. 33 It will be appreciated that, while there are some similarities between the present case and Mohammed (in that both cases involve a joint application for a subclass 820 visa and a subclass 801 visa, where the application for the 801 visa was refused because the applicant was not the holder of a subclass 820 visa), there are also stark differences. 34 In Mohammed it was accepted that the Migration Review Tribunal's decision affirming the refusal of Mr Mohammed's application for the subclass 820 visa was, for a particular legal reason, affected by jurisdictional error. As a consequence, the Migration Review Tribunal's decision, on that visa application, was set aside. In the present case, there is no such acceptance. The Migration Review Tribunal's decision affirming the refusal of the applicant's application for the subclass 820 visa stands. In Mohammed, the Tribunal's decision in respect of Mr Mohammed's application for the subclass 801 visa was legally unreasonable because, at the time the decision was made, Mr Mohammed's application to review the refusal decision in respect of his application for the subclass 820 visa was, in legal effect, undetermined. The same circumstance does not pertain in the present case. At the time the Tribunal made its decision in respect of the new decision to refuse the applicant a subclass 801 visa, his application for a subclass 820 had been determined adversely to him many years beforehand. He was not, and never had been, the holder of a subclass 820 visa. Therefore, the decision in Mohammed is distinguishable from the present case in fundamental ways and is of no assistance to the applicant.

Proposed Grounds of Appeal 35 The first proposed ground of appeal recognises that at the time of the Tribunal's decision, the applicant was not the holder of a subclass 820 visa. The alleged error appears to be that the primary judge failed to accept that the Tribunal fell into error because it (the Tribunal) did not find that "compelling circumstances" existed for the grant of a subclass 801 visa or, possibly, a subclass 820 visa (the allegation is unclear). There are three matters which stand in the way of that ground succeeding. First, it was not raised as a ground of judicial review in the Federal Circuit Court. Secondly, the only matter before the Tribunal was a review of the delegate's new decision to refuse the applicant's application for a subclass 801 visa. As I have said, the applicant's application for a subclass 820 visa had been refused many years beforehand. Thirdly, in relation to the applicant's application for a subclass 801 visa, the only question before the Tribunal was whether the applicant met the legal criteria for that visa. He did not. In circumstances where the applicant did not meet the legal criteria for a subclass 801 visa, the Tribunal did not have any residual discretion to grant the applicant such a visa. 36 The second proposed ground of appeal does no more than cavil with the outcome of the Tribunal hearing. There is no discernible error in the Tribunal's decision. 37 The third proposed ground of appeal does no more than presage the possibility that the applicant might advance further grounds of appeal. Beyond the matters I have discussed above, no further matters have been raised by the applicant which would disclose appealable error in the Federal Circuit Court's judgment. 38 At the hearing of the application, I invited the applicant to respond to the Minister's submissions, which had been served on the applicant some time ago but which were updated, without changing their substance, in oral argument. The Minister also addressed the two issues raised in the applicant's written submissions handed up at the hearing. 39 The applicant said that his wife (his sponsor) was pregnant at the time he applied for the subclass 820 visa and that he "did have a good reason, a strong reason then". He said he knew that the decision to refuse that application was wrong. 40 He also said that his circumstances did not allow him to appoint a lawyer. He said that he has been in Australia for 14 years and that all his family are here. He said that he lived with his family. He continued: I have got used to the country. My father passed away about two years ago and he was buried here, so I do have - part of me is implanted in this country. That's why it's difficult for me to leave and leave my family and it is hard for my family. It's hard especially for my mother and sibling for me to live abroad. I hope of the court to be fair to me and give me my entitlement, my right. 41 None of these matters is a reason why the present application should be granted.

Conclusion 42 Having regard to the proposed grounds of appeal, and the various matters put to me by the applicant, I am not satisfied that the appeal which the applicant wishes to bring has any reasonable prospects of success. I am unable to see any reasonably arguable appealable error in the judgment of the Federal Circuit Court or any reasonably arguable jurisdictional error on the part of the Tribunal. Therefore, it would be futile to grant the applicant leave to appeal. It follows that it would also be futile to extend the time in which such an appeal can be brought. 43 For these reasons, the applicant's Application for extension of time and leave to appeal filed on 11 October 2016 will be dismissed. The applicant is to pay the first respondent's costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

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