Nguyen v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT THE COURT 1 The appellant arrived in Australia on 2 December 1999 on a student visa valid until 3 February 2002. She claims that in March 2000 she met Van Tri Nguyen, who had become an Australian citizen on 22 February 2000, and that on 4 February 2001 they were married in a civil ceremony. She applied on 14 May 2001 for both a permanent and temporary partner visa. Her husband was her sponsor. 2 A child was born on 21 August 2002 and was named Tommy Nguyen. The child's birth certificate shows both the appellant and her sponsor as the parents. 3 On 6 March 2003 a delegate of the first respondent refused to grant the visas sought. The appellant lodged an application for review with the Migration Review Tribunal ('the MRT') on 24 March 2003. On 15 April 2005 the MRT handed down a decision affirming the decision of the delegate not to grant the visas. 4 According to the appellant, after Tommy's birth she became aware that her sponsor had previously been married and never divorced. They separated as a result. The Child Support division of Centrelink, on 25 October 2002, assessed a monthly payment of $21.67 payable by the appellant's sponsor to the appellant after an application from her asking it to calculate and collect child support payments on her behalf. 5 The appellant claimed a genuine relationship with her sponsor had existed at the time of their marriage ceremony. She relied on the relationship as a de facto spouse relationship, whatever the legal status of their marriage. 6 According to the decision of the MRT, material in the departmental file showed a very different picture. The MRT decision records that, according to the file: '13. On 31 July 2002, departmental officers conducted a home visit site at premises in Cabramatta. The nominating spouse, who was present at the premises, advised Departmental officers that he had never had a spouse relationship with the applicant, was not aware of where she was living and was not the father of her (at that time unborn) child. 14. The departmental case officer wrote to the visa applicant in relation to this site visit. In her reply, the visa applicant stated that she and the nominating spouse had moved house and that she had given birth to their first child, Tommy, on 21 August 2002. A birth certificate contained on file names the visa applicant as the child's mother and the nominator as the child's father. 15. On 6 November 2002, the visa applicant's representative wrote to the Department to advise that the visa applicant and nominator had separated. Contained on file is a copy of consent orders granting sole custody of Tommy to the visa applicant. Also contained on file is information received by the Department indicating that the nominator had married the visa applicant whilst still being married to another person.' 7 The decision also records: '18. The Tribunal wrote to the visa applicant on 14 May 2004 inviting her to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. This information was that the nominator may have been married to another person when he married the visa applicant and that he had provided a statement declaring that he and the visa applicant had never had a sexual relationship, had never lived together and that he was not the father of the visa applicant's child. The review applicant provided comments on 28 May 2004 and attached further documents in support of the application, including Family Court orders, bank statements, child support statements and receipts for household purchases. … 31. Following the hearing, the Tribunal received information that the nominating spouse had been convicted of offences in relation to his bigamous marriage to the visa applicant and two offences under s243(3) of the Migration Act, namely the nomination of a non-resident (including the visa applicant) for permanent residence when there is no intention of a genuine relationship. During the investigation of the offences, the nominating spouse had allegedly admitted that his first marriage and his marriage to the visa applicant were both fake marriages, that he had not lived with either of the women he had sponsored and that he had been paid $10 000 by each of the women to sponsor them for permanent residence. … 35. On 8 February 2005, the visa applicant's representative provided submissions to the Tribunal, which in part state that: "On 4 February 2001 my client married [Nguyen Van Tri] at a Civil Ceremony at 23 Irene Street Picnic Point New South Wales witnessed by two persons…During the period 4 February 2001 and beginning June 2001 my client and [Nguyen Van Tri] lived together as man and wife at 3/4 Bold Street, Cabramatta New South Wales….During the period 4 February 2001 and June 2001 my client was encouraged by [Nguyen Van Tri] to apply for a Sponsor (Partner) Visa on the basis that she could stop studying and care for him when he became ill. My client was encouraged to provide [Nguyen Van Tri] with ten thousand dollars ($10,000.00) to assist him to sponsor my client on the basis that without it he would not qualify as a sponsor…On 14 May 2001 my client applied for such a visa. About August 2001 my client borrowed $10,000.00 and gave it to [Nguyen Van Tri] because it was apparent that they did not have sufficient monies to live properly. During the period July 2001 and September 2002 the marriage became rocky because my client had been informed by a person that [Nguyen Van Tri] was not genuine and did not want a wife and children. [Nguyen Van Tri] behaviour during the marriage supported my client's suspicions."' 8 The MRT's decision to affirm the decision of the delegate not to grant any partner visa dealt with three principal issues. First, it found that at the time of application the appellant was not in a married relationship with her sponsor because he was already married and was unable to enter into a valid marriage with the appellant on 4 February 2001. The MRT took into account information on the departmental file that 'on 17 August 2004, the nominating spouse pleaded guilty to one offence of bigamy under s94 of the Marriage Act 1961, on the basis that he had married the visa applicant whilst already being married. The nominating spouse was sentenced for this offence on 27 October 2004'. 9 Secondly, the MRT concluded that despite the appellant's assertions that she married her sponsor in good faith and was committed to the relationship, in fact the sponsor had no commitment to that relationship. The MRT relied, in part, upon the fact that 'The evidence of the nominating spouse in support of his guilty pleas was that he was paid to sponsor the visa applicant. Although the visa applicant has denied this, the fact that her representative has referred to a payment of $10,000 by the visa applicant to the nominating spouse tends to support the nominating spouse's statement that there was never a genuine intention to marry'. 10 Thirdly, as well as finding 'that the relationship was never genuine, at best because the nominating spouse never intended to have such a relationship with the visa applicant', the MRT observed that it was 'common ground that the relationship is no longer continuing at the time of decision'. 11 An application for judicial review was filed in the Federal Magistrates Court on 30 June 2006. Various attacks were made, in the grounds for the application, on the decision of the MRT and the conduct of the proceedings before it. They included the contention that the MRT was not permitted to rely upon information in the departmental file to conclude there was no valid marriage between the appellant and her sponsor. 12 The application for judicial review before the Federal Magistrates Court was heard by Smith FM who did not find it necessary to deal with the reasons given by the MRT nor 'to examine the numerous grounds of jurisdictional error on the part of the Tribunal which are asserted in the application which was filed in the Court'. It was unnecessary to do so because Smith FM concluded that the application for judicial review was not competent and should be dismissed for that reason. The foundation for that conclusion was that the time limits prescribed by s 477 of the Migration Act 1958 (Cth) ('the Act') had not been complied with by the appellant. 13 Section 477 of the Act prohibits the Federal Magistrates Court from allowing an application for judicial review which is not brought within 28 days of actual notification of the relevant decision or, pursuant to leave granted to bring such an application, within a further period of 56 days. The effect is that an absolute bar arises after 84 days. 14 In the present case the decision of the MRT was made on 15 April 2005. It is accepted by the appellant that notification of the decision was received on that day. Section 477 of the Act was introduced by the Migration Litigation Reform Act 2005 (Cth). Transitional provisions enacted in connection with the amendment had the effect that, in a case such as the present, the 84 day period was deemed to commence on 1 December 2005. It therefore expired on 24 February 2006. The application for judicial review filed on 30 June 2006 was made more than four months after final expiry of any time in which it was possible to commence the proceedings. 15 If s 477 applied according to its terms there was no discretion to extend time and the application for judicial review was bound to be dismissed. Arguments were advanced to Smith FM to the effect that for various reasons s 477 did not bar the application before him. Those arguments were rejected. 16 The proceedings in this Court were commenced by an application filed on 14 November 2006 seeking an extension of time in which to appeal against the judgment of Smith FM. A draft notice of appeal has been filed. 17 A further procedural hurdle must also be negotiated. It seems clear that Smith FM dismissed the application for judicial review (as he was asked to by the first respondent) under Rule 44.12(1) (a) of the Federal Magistrates Court Rules. Rule 44.12(2) indicates that such a judgment is an interlocutory one. In addition, there is much authority that 'dismissal of a proceeding as incompetent is interlocutory for the purpose of appeal rights' (see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 per Lindgren J at [6] and the cases there cited). Accordingly, leave is required to file an appeal in this Court (Federal Court of Australia Act 1976 (Cth), s 24(1A)). No application for leave to appeal has been made, although at the hearing of the application for an extension of time counsel for the appellant indicated such leave was sought, if necessary. 18 The period in which an appeal might be commenced in this Court whether as of right (Order 52 r 15) or by an application for leave to appeal (Order 52 r 5) expired on 10 November 2006. Strictly speaking, the appellant requires both an extension of time in which to seek leave to appeal and, if an extension of time is granted, leave to file an appeal, before any appeal is properly before the Court for consideration. 19 Despite the unsatisfactory state of the proceedings, in order to come directly to the substance of the appellant's case we would treat the application filed on 14 November 2006 as an application for an extension of time in which to seek leave to appeal, and that application in company with the draft notice of appeal as an application for leave to appeal. We would dispense with compliance with so much of the Federal Court Rules as was necessary to permit such a result. 20 It is conventional to pay regard to the apparent strength of an intended appeal to evaluate both whether an extension of time should be granted and whether leave to appeal should be granted. Both an extension of time and leave to appeal are opposed, although counsel for the first respondent very properly accepts that neither procedural bar would be used to defeat an appeal that deserved attention on its merits. 21 The grounds of appeal set out in the draft notice of appeal are as follows: '1. His Honour erred in law in that he denied the Appellant procedural fairness in not granting the adjournment sought on behalf of the Appellant to enable the submissions of the Respondent, served and filed out of time, to be properly and fairly considered by Counsel and Instructing Solicitor and to be advised to and instructions sought from the client. 2. His Honour erred in law in that he denied the Plaintiff procedural fairness in that by refusing the adjournment referred to at paragraph 1, and requiring the parties to proceed after standing the matter down for 1 hour, the Appellant was denied the right to have an interpreter present throughout the entirety of the hearing. 3. His Honour erred in law in failing to take into account properly or at all the relevance and impact of the Commonwealth's international law obligations in the setting of restrictive timelines under the provisions of section 477 of the Migration Act 1958 so that those timelines are in breach of those international law obligations both in and of themselves and as expressed through domestic law, namely the Sex Discrimination Act 1984 (Cth), the Racial Discrimination Act 1975 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 4. His Honour erred in law in failing to take into account properly or at all the relevance and impact of the provisions of the Commonwealth's international law obligations in the setting of restrictive timelines under the provisions of section 477 of the Migration Act 1958 and the inconsistency thereby created insofar as the obligations required of solicitors in accordance with section 486I.' 22 Before turning to an evaluation of these grounds, for the purpose of the applications for extension of time and leave to appeal, it is convenient to deal with the reasons given why the present appeal was not filed within time. Smith FM's judgment was delivered on 19 October 2006. As we have indicated, the time limited by the Federal Court Rules to commence an appeal (whether by seeking leave or as of right) therefore expired on 10 November 2006, which was a Friday. The application and draft notice of appeal were filed on 14 November 2006. 23 Where leave to appeal is required and is not sought within 21 days an order must be sought that compliance with that limitation be dispensed with (see O 52 r 5(2), O 1 r 8). Although such an order is made in the exercise of a very wide discretion, casual disregard of the requirements of the Rules is inappropriate. Some good reason should therefore be shown to dispense with the requirement to file an application for leave to appeal within 21 days. Had an appeal as of right been available against the judgment of Smith FM (as the appellant's legal advisers appeared to think) Order 52 r 15(2) would have required that 'special reasons' be given to justify the initiation of an appeal out of time. 24 The explanation offered is set out in an affidavit sworn by Ms Scanlan, solicitor for the appellant, which was also filed on 14 November 2006. It says: '1. I am Solicitor to Thi Phong [sic] Anh Nguyen, the Appellant in this matter. 2. Appended to this Affidavit and marked Annexure 'A' is a true copy of the decision the subject of this appeal, delivered by His Honour Federal Magistrate Smith in Sydney on 19 October 2006. 3. [Only the last line of paragraph 3 appears as follows] to explain the decision and to take her instructions. 4. On 2 November 2006 I accompanied the Applicant to her immigration agent's office to discuss the decision and to explore options other than an appeal. 5. On 10 November 2006 I had a conference with the Applicant and her interpreter to discuss the costs in relation to an appeal and to take her instructions in relation to filing and serving a Notice to Appeal. 6. Immediately subsequent to the meeting referred to in paragraph 5 I instructed counsel to proceed to draft an appeal and supporting affidavit. 7. I attended Court in Parramatta at 10.00 a.m. on 13 November 2006 until 11.40 a.m. 8. On my return to the office at about 2.15 p.m. I received an email from counsel that contained the draft Notice to Appeal and supporting Affidavit. 9. I settled the documents referred to at paragraph 8 and attempted unsuccessfully to fax the Application to the Federal Court at about 4.40 p.m. 10. As at about 7.29 p.m. I was unable to find a witness.' 25 At the hearing of the appeal Dr Scutt, counsel for the appellant, accepted responsibility for the delay in furnishing documents to her instructing solicitor. The short period between receiving instructions to prepare those documents and sending them to Ms Scanlan (which included a weekend) does not seem to have been the major cause of the problem. It appears from Ms Scanlan's affidavit that instructions to file an appeal were not given and received until the very last day permitted under the Rules to initiate an appeal. 26 In Jess v Scott (1986) 12 FCR 187 there was an extensive discussion of the meaning and application of the test of 'special reasons' in O 52, r 15(2). The Court said: 'It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.' In that case an extension of time was granted in circumstances where a defaulting solicitor gave a full and satisfactory explanation to the Court and offered to pay personally the respondent's costs of an application for an extension of time. The Court rejected any narrow or pedantic approach to the exercise of the discretion. 27 In the present case the preferable course is to deal with the matter by reference to the prospects of any appeal rather than by considering whether such delay as occurred justifies refusing an extension of time. 28 The allegations made in the proposed first two grounds of appeal must be assessed in the light of the procedural course which the proceedings took before Smith FM. 29 In its response filed in answer to the application for judicial review the first respondent objected to the competency of the application. That issue was listed for separate hearing on 18 September 2006 by order made on 26 July 2006. The same order directed that the appellant file any written submissions on or before 7 September 2006 and that the first respondent file any written submissions on or before 12 September 2006. Both parties failed to comply with this timetable. Written submissions by counsel for the appellant were apparently faxed to the Federal Magistrates Court about 5.30 pm on 8 September 2006. An addendum dated 9 September 2006 was filed on 12 September 2006. Further material by way of written submission was provided on 19 September 2006 (after the hearing and presumably with leave). The first respondent's written submissions were filed on 14 September 2006. They were served under cover of a letter dated 15 September 2006. 30 In an affidavit sworn for the purpose of supporting the application for extension of time in the Federal Magistrates Court Ms Scanlan deposed that the first respondent's written submissions were received in her office at about 2.30 pm on 15 September 2006 but that she had been away and did not receive them until the morning of 18 September 2006, the day of the hearing. She complains that Smith FM was only prepared to stand the matter down for one hour so that those submissions could be considered. She also complains that the delay in commencing the proceedings had the consequence that the appellant did not have the services of an interpreter available after the luncheon adjournment, the interpreter having been arranged for the morning only. The overall complaint is that the proceedings should have been adjourned for hearing on another day, but were not. 31 We do not consider that there is any substance in these complaints. The matters to be dealt with by Smith FM on 18 September 2006 were questions of law. The obstacle which the appellant faced was unmistakeable. The objection to the matter proceeding was that the application was not competent in the light of s 477 of the Act. The submissions filed for the first respondent were concise and straightforward. They did not raise any new matter. In our view there was nothing which required an adjournment for longer than the period granted in light of the fact that the applicant was represented by highly qualified counsel who had already made extensive written submissions about the problem, specifically to deal with the jurisdictional objection taken by the first respondent. 32 At the hearing of this appeal the complaints were repeated but Dr Scutt was unable to point to any prejudice to the appellant as a result of the course taken by Smith FM. Suggestions were made by Dr Scutt that the matter may have been 'taken to the High Court' or that a challenge to the 'constitutionality' of s 477 may have been mounted but it appeared in answer to questions from the bench that both of those possibilities (if that is how they were intended to be understood) had been considered but not pursued before the hearing before Smith FM on 18 September 2006 and neither was pursued after the judgment of Smith FM. No application has been made to the High Court. No challenge to the 'constitutionality' of s 477 has been made in the present appeal. The arguments advanced on the appeal are those put to and rejected by Smith FM. The passage of further time has made no difference to the matters upon which the appellant relies. We would reject any suggestion of a lack of fairness in the course taken by Smith FM. 33 The remaining grounds are also without substance. They were addressed to Smith FM and were correctly rejected in our view. The first respondent's objection to the competency of the application before the Federal Magistrates Court turned upon the operation of s 477 of the Act. The appellant, in answer, contended that s 477 was modified in its operation by 'international law obligations' and also because of the operation of s 486I of the Act. 34 The first argument may be reduced to the following: (a) generally, in court proceedings, there is a discretion to extend time; (b) it would be potentially discriminatory for the Act not to permit a discretionary extension of time; (c) Section 477 should therefore be read, conformably with 'international law obligations', as though it was subject to a discretion to extend time. 35 It is to the law of Australia that regard must first be paid in the case of any suggestion of a conflict between domestic law and international law obligations (see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 81 ALJR 304. In our view there is no merit in the proposition that the provisions in s 477 should be read as modified by reference to the suggested international law obligations. Dr Scutt was unable to draw to our attention any provision in an Australian statute which gave effect, as a matter of domestic law, to the suggested international law obligations in any way which could bear upon the meaning, effect or operation of s 477. Nor was any gap in domestic law identified which might be filled by the suggested international law obligations. The argument put to us was simply an invitation to disregard the language of the Act as a whole and s 477 of the Act in particular. 36 The second argument concerns section 486I of the Act. It deals with the certification required to be given by lawyers when filing documents commencing migration litigation. It provides as follows: '(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. (2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.' 37 As we understood the argument on this point it was to the effect that the burden cast upon legal practitioners and their exposure to possible costs orders may place them in an 'invidious position' if an extension of time is not available. This contention does not support the construction of s 477 advanced by the appellant. In our view s 486I is irrelevant to the operation of s 477. 38 There is no matter for serious consideration which arises from the grounds set out in the draft notice of appeal or from any of the arguments put to us by the appellant, either in writing or orally. If an extension of time were granted or if leave to appeal were granted the appeal would be futile. 39 We will accordingly refuse an extension of time in which to seek leave to appeal. The proceedings will be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.