SZOXP v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: MCKERRACHER J DATE OF ORDER: 6 MARCH 2015 WHERE MADE: BRISBANE

1. The applicant be granted an extension of time to file a notice of appeal in terms of the draft notice of appeal.
2. The appeal be listed for hearing before a Full Court of this Court in the appeals period commencing on 4 May 2015 or as soon as possible thereafter.
3. The costs of the application be costs in the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION NSD 1277 of 2014

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: MCKERRACHER J DATE: 6 MARCH 2015 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time within which to lodge an appeal from a judgment of the Federal Circuit Court of Australia. That judgment was given on 26 March 2014. The Federal Circuit Court allowed the Minister's application for judicial review of a decision of the Migration Review Tribunal in favour of the applicant. The application is opposed due to the considerable period of time which has elapsed since delivery of the judgment and the contention on the part of the Minister that the applicant has sat on his rights. The Minister also argues that the merits of the appeal are so weak that leave should not be granted. 2 In my view, leave should be granted. The delay is considerable, but there is a reasonable explanation. There is no particular prejudice. As to the merits of the appeal, the point is certainly arguable and there is no authority directly on point. As it is a matter which the Minister correctly describes as being of importance to the Minister and in light of the absence of precedent, I propose ordering that the matter be listed before a Full Court comprising three judges pursuant to s 25(1AA)((b) of the Federal Court of Australia Act 1976 (Cth). The appeal should be listed for hearing in the Full Court sittings in Brisbane commencing on 4 May 2015 or as soon as possible after those sittings. My reasoning is as follows.

OVERVIEW 3 The application involves s 5CB(2)(c)(ii) of the Migration Act 1958 (Cth) (Act). Section 5CB(2) provides: 5CB De facto partner … De facto relationship (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but: (a) they have a mutual commitment to a shared life to the exclusion of all others; and (b) the relationship between them is genuine and continuing; and (c) they: (i) live together; or (ii) do not live separately and apart on a permanent basis; and (d) they are not related by family (see subsection (4)). … (emphasis added) 4 The applicant applied for a visa on the basis that he was in a de facto relationship with his then fiancé. At that stage they had not lived together, but intended to do so after their marriage. They have now married and cohabit. The question for the appeal is whether or not it could be said that the applicant and his fiancé did 'not live separately and apart on a permanent basis' for the purposes of the Act. The Tribunal concluded that it could not be said that they were living separately and apart on a permanent basis because they intended to live together once they were married. The Federal Circuit Court disagreed, taking the view that if they had never lived together, it could not be said that they were going to resume cohabitating to which it considered the Act is directed. The text of the Act itself, which is the starting point, does not refer to a resumption of cohabitation. 5 While the text is crucial, history also shows that there are competing policy considerations. On the one hand, the Government is anxious to avoid shams and has imposed a rigorous regime in order to be satisfied that a de facto relationship is genuine. On the other hand, there could be those in a genuine relationship who believe that they should not live together until they are married.

THE CIRCUMSTANCES 6 The applicant is a Chinese citizen. On 24 October 2012, he applied for a Partner (Temporary) (Class UK) visa under the Act. To qualify for that visa he needed, relevantly, to be a de facto partner of a person who is an Australian citizen at the time of his application: Migration Regulations 1994 (Cth), Sch 2, reg 820.211. By his application, he identified his de facto partner as Ms Yang, who is an Australian citizen. The Minister's delegate refused to grant the visa on the basis that the applicant and Ms Yang were not in a de facto relationship and, therefore, did not meet the criteria for the visa. 7 The applicant sought review in the Tribunal. The Tribunal concluded on 15 March 2013 that the applicant and Ms Yang had a mutual commitment to a shared life to the exclusion of all others and that their relationship was genuine and continuing. It also found, and this was not contentious, that the applicant and Ms Yang had never lived together, but they intended to do so once they were married. The Tribunal concluded that in those circumstances, the applicant and Ms Yang were in a de facto relationship as defined in the Act. 8 In the Federal Circuit Court her Honour held that as a matter of law the applicant could not satisfy the criterion because he and Ms Yang had never lived together. The Federal Circuit Court set aside the Tribunal decision and the matter was remitted for reconsideration according to law. 9 The applicant then proceeded to a rehearing before a differently constituted Tribunal. He was unaware that the Tribunal would be unable to grant his visa in that rehearing. His expectation was that it would be able to 'make a ruling on compelling or compassionate grounds', as disclosed in his affidavit in support. However, on 26 August 2014, the Tribunal affirmed the refusal to grant a visa, noting that it was bound by her Honour's construction of s 5CB(2)(c) of the Act in the Federal Circuit Court. 10 The applicant sought review of the August 2014 Tribunal decision in the Federal Circuit Court. On taking legal advice, however, that application has been adjourned and the applicant has filed and pursued this application for an extension of time to appeal from the decision of the Federal Circuit Court. 11 It is common ground that the applicant met the requirement of paras (a), (b) and (d) of s 5CB(2) and, as her Honour noted in the Federal Circuit Court, those findings were not challenged in the proceedings brought by the Minister.

EXPLANATION FOR DELAY 12 In his affidavit in support of this application, the applicant confirms that he and Ms Yang were married at the Villawood Detention Centre in November 2012. They have been living together at Jamboree Heights since March 2013. They also had Buddhist wedding ceremony on 22 May 2013. 13 According to the applicant, he had no money to pursue an appeal from the Federal Circuit Court, and was not allowed to work under his visa. Although his wife had some money in savings, she was living off her savings because she had lost her job in July 2012 and had not yet found a new job. She later found a new job (in about June 2014). 14 Any notice of appeal should have been filed by 17 April 2014: r 36.03 of the Federal Court Rules. 15 The advice the applicant was given following the Federal Circuit Court decision by counsel was that his matter would 'go back to the [Tribunal] and that the [Tribunal] would make a new decision'. The applicant said 'I did not know that the [Tribunal] would not be able to grant my visa or change the decision. I thought that the [Tribunal] could consider my circumstances, my wife's circumstances (including her health) and make a ruling on compelling or compassionate grounds'. When he attended the second Tribunal hearing in Brisbane on 14 August 2014, he did not understand that the Tribunal could not make any different decision because of the Federal Circuit Court's judgment on 26 March 2014. On 28 August 2014, the Tribunal decided that a partner visa should not be granted as it was bound by the Federal Circuit Court's interpretation of s 5CB(2)(c). 16 The applicant filed an application in the Federal Circuit Court seeking review of the second Tribunal decision but on retaining Mr Black of counsel, who now appears for him, he was then advised that he should consider trying to appeal against the Federal Circuit Court judgment of 26 March 2014. 17 Some guidance as to the relevant discretionary factors to be considered in determining whether or not to grant an extension of time pursuant to r 36.05 of the Federal Court Rules can be found in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J (at 348-349). In that decision a number of factors were identified including: the length of delay; any explanation for the delay; any prejudice to the respondent or other parties which may be occasioned by extension of time were granted; and the prospects of success of the appeal if an extension of time were granted. These factors have been recognised and applied consistently since Hunter Valley. 18 In this instance, the length of the delay approaches eight months and is clearly substantial. The applicant admits that he received a copy of the decision of the Federal Circuit Court shortly after it was made and was informed of his appeal rights. At that stage, he said he had insufficient funds to file an appeal and, more importantly, was unaware of the binding nature of the decision in the sense that he thought the Tribunal could still 'make a ruling on compelling or compassionate grounds'. The Minister points out that the applicant does not state what steps he took to verify this assumption. In my view, someone in the applicant's position and in the circumstances of this application could be expected to rely on legal advice as he understood it. 19 The Minister correctly submits that a lack of financial resources and mistaken understanding of the Tribunal's jurisdiction are not compelling reasons, taken alone, to warrant the Court exercising its discretion to extend time. The Minister accepts that he has suffered no prejudice, although as recognised by the Full Court in Parker v The Queen [2002] FCAFC 133 (at [6] quoting Hunter Valley (at 348-349)) the mere absence of prejudice is not enough to justify the grant of an extension of time. 20 A more recent authority in relation to extension of time and on which the applicant relies is ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 where Justice Katzmann said (at [88]): 88 The Court's discretion under s 11 of the ADJR Act is a broad one. There are no preconditions to be satisfied before it can be enlivened. Nevertheless, the discretion is to be exercised judicially and in accordance with the objects of the statute. Wilcox J summarised the applicable general principles, which his Honour drew from the case law, in the frequently cited judgment in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Hunter Valley Developments). I do not suggest, however, that these considerations are exhaustive. Indeed, his Honour was at pains to point out that they were not. Those principles are: (a) There is no need to show special circumstances but the Court cannot ignore the statutory period. The starting point is that the legislature has prescribed a period. An extension of time will not be granted unless the Court is "positively satisfied that it is proper to do so". Any applicant for an extension must provide an acceptable explanation for the delay and establish that it is "fair and equitable in the circumstances" to extend time. (b) Any action the applicant has taken apart from the proceedings is relevant to the question of whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that she or he contests the finality of the decision (that she or he has not "rested on his [sic] rights") and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the "need for finality in disputes" but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 71 FLR 256; 47 ALR 528. (c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension. (d) Still, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application. (e) It is proper to take into account the merits of the substantive application. (f) Considerations of fairness as between the applicants and other persons otherwise in a similar position are relevant to the way in which the discretion should be exercised. Here, his Honour referred to Wedesweiller again. I note that in Wedesweiller, at 261-262; 534, Sheppard J expressed the view that, but for the fact that there were pending before the Court about 190 similar applications, all arising out of similar incidents as those in the case before him, he would have thought that an application brought almost 12 months after the expiry of the prescribed time, was too late to be entertained. (g) Decisions affecting only the immediate parties are to be distinguished from those involving public administration, where the public interest may well dictate refusal of an extension, even after only a short delay. 21 Her Honour also said (at [89]): I accept ActewAGL's submission that "the basal principle guiding the Court's discretion is the justice of the case" or, as Kenny J put it in Dickson v Whiddett [2001] FCA 585 at [34] the period may be extended "where the justice of the case requires it". But each of the matters to which Wilcox J referred in Hunter Valley Developments bears on the question of where the justice of the case lies. 22 The argument for an extension is not overwhelming. Without a good arguable point, I doubt that 'the justice of the case' would warrant the extension being granted. 23 On balance, however, although the applicant was understandably confused and misguided as to the workings of the system, I do not consider that he intended to sit back and do nothing about pursuing his rights. He has pursued a number of applications. The explanation is imperfect, but there is at least a quite detailed, and I consider, genuine explanation. Further, there is, in my view, some merit in the proposed appeal.

THE FEDERAL CIRCUIT COURT DECISION 24 Before her Honour, the Minister submitted that the Tribunal (in its first decision of 15 March 2013) had misconstrued the meaning of s 5CB(2)(c)(ii) of the Act by finding that there was no requirement that the parties to the relationship must have previously lived together. Her Honour accepted that submission, and in doing so placed reliance on a judgment of this Court by Justice Hill in Li v Minister for Immigration, Local Government & Ethnic Affairs (1992) 33 FCR 568. It is common ground that the decision in Hill was dealing with a different statutory provision. In particular, the decision focussed on a regulation which defined the term 'spouse' as meaning: (a) a person who has entered into a marriage recognised as valid for the purposes of the Act, where: (i) the marriage has not been ended by divorce or the death of one of the parties; and (ii) the parties are not living separately and apart on a permanent basis … (emphasis added) 25 The factual circumstances in Li were different. In that case the applicant held a visa as the 'spouse' of her husband, who held a different visa. The applicant and her husband had lived together but were separated as a result of political circumstances. Initially they intended to 'resume cohabitation in the future'. However, the husband later decided to separate permanently from the applicant and he conveyed that intention to the department. The applicant's visa was then cancelled. The applicant in Li complained before Justice Hill of a denial of procedural fairness because she was not given an opportunity to be heard as to her view about the status of the relationship before the cancellation. That argument was rejected because his Honour concluded that once one spouse formed the intention to end a relationship, that rendered the separation permanent. His Honour said (at 576): The applicant and her husband were not, of course, physically living together; they were separated as a result of the exigencies of the Chinese political situation. However, that separation, at least when it began, was not "permanent" (an expression used in the present context in the sense of "indefinitely continuing": cf Commissioner of Taxation (Cth) v Applegate (1979) 38 FLR 1, per Franki J (at 4), per Northrop J (at 11), and per Fisher J (at 16)) in that it would seem there was the intention that they would resume cohabitation in the future. The intention relevant must of necessity be the intention of both husband and wife. If the parties to a valid marriage live separately, the question whether that separation is permanent depends upon their mutual intention. It will not be to the point that the wife hopes or even intends that the separation will be but temporary; if the husband has a different intention, the separation then will indeed be permanent. (emphasis added) 26 In the Federal Circuit Court decision, the subject of this application, in considering the 'permanent basis' aspect her Honour focussed on the first two sentences of the passage above and placed emphasis on the word 'resume'. Her Honour also drew upon the Oxford English Dictionary definition of 'resume', as meaning 'to begin again or continue'. Her Honour also noted (at [30]): The only oral submission made by counsel for SZOXP, Mr [X], was that the [Tribunal] committed jurisdictional error. Mr [X] did not elaborate orally on that submission. At the heart of Mr [X]'s written submissions appeared to be a contention that "live" in s.5CB(2)(ii) of the Act ("do not live separately and apart on a permanent basis"), is framed "in present terms and prospective terms and not in retrospective terms". I understand such contention is intended to support SZOXP's submission that the [Tribunal] was correct to find that it was not necessary for SZOXP and Ms Yang ever to have lived together in order to satisfy the meaning of de facto relationship as referred to in s.5CB of the Act. 27 Her Honour held (at [34]): I accept the submission of counsel for the [Minister] that a proper construction of s.5CB(2)(c) of the Act requires either that the parties to the relationship live together, or, if separated and living apart, such state is not permanent. Plainly, the legislation contemplates that a couple who are living together may be separated temporarily for many reasons. However, in such circumstances, it must be their intention to 'resume' cohabitation. SZOXP and Ms Yang had never lived together and had no such intention to do so until they were married. 28 On that basis, her Honour found that the Tribunal decision involved jurisdictional error, and set aside the decision and remitted the matter for reconsideration according to law.

THE MERITS 29 There is nothing on a literal reading of the text which requires that the parties have previously lived together. A deal has been clarified in recent times by the High Court about the importance of focussing on the text: Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 (at [39]); see also the other recent High Court cases extracted and discussed by Buchanan J in Maritime Union of Australia v Assistant Minister for Immigration and Border Protection [2014] FCA 993 (at [68]-[73]). 30 I accept the argument, at least for present purposes, that if it was intended that s 5CB(2)(c)(ii) could only be satisfied if the parties had previously lived together, it would have been a simple matter for the legislature to say so. It is arguable, given the other requirements of this section, going to the question of the genuineness of the relationship, that subpara (2) should not only be limited to circumstances of resumption of cohabitation, which imposes a gloss on the text. On its face, there does not appear to be difficulty in language or in principle with the proposition that two people who have never lived together but genuinely intend to do so within the near future may be said to be a couple who 'do not live separately and apart on a permanent basis…'. The 'mutual commitment' and 'genuine and continuing' nature of the relationship are well covered by other paragraphs in the section. On the other hand, from a policy perspective, it must be acknowledged that the Minister may look for hard indicators of those somewhat intangible concepts. 31 In Li, the true gravamen of Hill J's assessment at 576 extracted above was directed not to the question of resumption of cohabitation, but rather, the mutuality of the intention of the parties. The resumption issue (again, not in the text of the legislation) was examined as a consequence of the lack of mutuality of commitment to the relationship. As the relationship was concluded, those involved were not resuming cohabitation so were living apart on a permanent basis. The position here, arguably, is the reverse. 32 In many, but perhaps not all, circumstances the concept of a de facto relationship would contemplate cohabitation. What will determine the question in this instance will be the detailed text of the Act and the relevant Regulations (including reg 1.09A), bearing in mind that the effect of the Regulations cannot go beyond the words of the Act itself. 33 Counsel for the applicant drew my attention to the Family Court decision of Kale & Karmel (No 2) [2012] FamCA 954 in which the parties had 'met and formed a relationship from April 1998' but had retained separate homes until mid-2002. Justice Kent concluded that the parties nonetheless had commenced a 'de facto relationship' as defined in s 4AA(1) of the Family Law Act 1975 (Cth) in late 2001 despite the fact that they were not yet physically living together. That conclusion was based largely on the finding that in late 2001, the parties decided to acquire a joint property which they acquired in early 2002 (at [30] and [31]). Again, this is a different statutory context from that being considered at present, but may arguably give some limited support for the proposition that if all other factors of a genuine relationship are present, the fact that parties have not yet commenced their intended cohabitation may not preclude the relationship being described as a de facto relationship for the purposes of s 5CB of the Act. In other words, the argument would be that, in the absence of an express reference to resuming cohabitation, that requirement should not be added to the text. 34 Counsel for both parties agreed that this particular point has not previously been the subject of determination by this Court. There appears to me also to be no authority directly on point on this issue of construction concerning s 5CB(2)(c)(ii) of the Act. The expression 'do not live separately and apart on a permanent basis' has been considered in the context of reg 1.15A of the Regulations, which concerns criteria for determining whether a person is a 'spouse' for the purposes of the Act. Although that provision has fallen for consideration in a number of cases, counsel and I apprehend that there has been no judicial consideration directly on point. The High Court has considered reg 1.15A in cases including Sok v Minister for Immigration and Citizenship (2008) 238 CLR 251 and Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448, and in the Full Court in Zhang v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 30; Minister for Immigration and Citizenship v Sok (2008) 165 FCR 586; Minister for Immigration and Citizenship v Zaouk (2007) 159 FCR 152; Konteh v Minister for Immigration and Multicultural Affairs [2007] FCAFC 12; Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin (2005) 88 ALD 304; Ally v Minister for Immigration & Citizenship [2008] FCAFC 49; and NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298. 35 The reasoning and conclusions of the Federal Circuit Court was, with respect, entirely reasonable on the arguments before the Court. However, with the benefit of additional argument beyond that advanced before the Federal Circuit Court, I consider that there is sufficient merit in the applicant's substantive argument (taken with the explained delay) to warrant the grant of an extension of time within which to appeal.

CONCLUSION 36 The applicant will be granted an extension of time with which to appeal. 37 Additionally, as this quite narrow point is novel and important, the appeal should be before a Full Court. The following orders are made:

1. The applicant be granted an extension of time to file a notice of appeal in terms of the draft notice of appeal.
2. The appeal be listed for hearing before a Full Court of this Court in the appeals period commencing on 4 May 2015 or as soon as possible thereafter.
3. The costs of the application be costs in the appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.