by Paul Cutler | May 9, 2022 | Uncategorized
Generally spouse visas are provisional for 2 years before they become permanent. This is to weed out the non-genuine or short term relationships. There is an exception to the 2 year rule if there is family violence. In Minister v Gupta [2022] FCAFC 51 the Full Court had to resolve an issue about the construction of 100.221(4) which provides inter alia: (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and (b) the applicant would meet the requirements of subclause (2) or (2A) [the 2 year rule] except that the relationship between the applicant and the sponsoring partner has ceased [because of family violence]….
The controversy arose because the AAT found that Ms Gupta and her partner were never in a genuine spousal relationship (s 5F) and as a result 100.221 couldn’t be made out and didn’t apply at all. In the Federal Circuit Court, the judge applied Wigney J’s decision in El Jejieh and found that the AAT had fallen into error because the requirement was the “holding” of a visa, not the genuineness of the relationship.
The Full Court resolved the issue as follows:
- Accordingly, we agree with the finding of Jagot J in Hannaat [23] that where the Tribunal found that no marital or de facto relationship as defined in s 5F (and s 5CB) existed at any time, the consequence was that the question of family violence did not arise for consideration. That is so even though we accept that the reasoning in Kaur at [43]-[44] (Murphy J) (on which Jagot J relied) related to a finding of the Tribunal in relation to the failure to satisfy the time of application criterion in cl 820.211 in determining to affirm a decision to refuse a provisional visa under cl 820.221 without considering whether a claim to family violence was made out.
- ….
- With respect, we do not agree with the reasoning in El Jejieh at [204]-[206]. We note that the issue of the construction of cl 100.221(4)(b) was neither considered by the FCCA Judge nor raised in the notice of appeal in El Jejieh; it was advanced by Mr El Jejieh’s counsel on the appeal with leave to rely on an amended notice of appeal over the Minister’s objection: see El Jejieh at [111]. The decisions in Kaur and Hanna are not referred to in El Jejieh and they do not appear to have been drawn to Wigney J’s attention.
That makes sense because a non-existent relationship can’t actually end because of family violence.
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by Paul Cutler | Apr 28, 2022 | Uncategorized
Jurisdiction (the power to decide) is fundamental to all proceedings and applications. Sometimes, particularly in courts where power is limited by statute it can also become very complicated. The term “accrued” jurisdiction is often used without appreciating where the limits lie. In FJE20 v Minister for Home Affairs [2022] FCAFC 45 the applicant sought a number of injunctions (in relation to his removal to PNG) and declarations but also sought damages for a common law negligence claim. The primary judge found that the (then) Federal Circuit Court (FCC) didn’t have jurisdiction for the negligence claim. The Full Court dealt with the matter in two steps. The first involved a finding that some of the public law remedies were within jurisdiction (this is the decision I have just referred to) and the parties have been invited to make more submissions about the negligence claim (incl whether the matter should be transferred to the Federal Court). In other words, there’s more to come!
The basic issues were:
- FCC has original jurisdiction conferred by parliament;
- Section 476 Migration Act gives the FCC the same jurisdiction as the High Court in relation to migration decisions;
- migration decision is a defined term (s5) and it includes privative clause decision;
- privative clause decision is defined in s474 Migration Act
Basically the argument was about the meaning of “in relation to”. There is authority for the proposition (Fernando) that s 476A(1) of the [Migration Act] is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and a “migration decision”.
There were also some interesting submissions (by the respondent) that the relief sought was hopeless, inutile and hypothetical. Just because a claim made within jurisdiction is weak or even hopeless only means that it will be dismissed within jurisdiction.
It sounds from the judgment as if (as a matter of case management – facilitate the resolution of the matter quickly, inexpensively and efficiently) the negligence claim is not within jurisdiction and that part of the claim will be transferred to the Federal Court.
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by Paul Cutler | Apr 21, 2022 | Uncategorized
I am often surprised that there are so many cases about defective “statutory notices” and it really shows that any notice your client receives should be scrutinised to make sure it is compliant.
In Lewis v Minister [2022] FCA 205 (another 501CA character cancellation matter) two invitations to make representations to revoke the cancellation were issued, some few weeks apart. The invitations were materially identical except for their date. Both required receipt from the applicant of any representations within 28 days. The applicant made representations within 28 days of the second invitation, but not the first. The Minister’s delegate treated those representations as having being made within the period but refused to revoke the cancellation. On review, the Minister changed his position and argued that the s 501CA(4) power to revoke had not in fact been enlivened, because representations should have been made within 28 days of the first invitation (there being no power to issue a second invitation and so practically extend the 28 day period).
Allsop CJ found both notices were invalid because they wrongly specified the time for response as being “received within 28 days”. The Full Court in Stewart v Minister [2020] FCAFC 196 held that the representations responding to the invitation referred to in s501CA(3)(b) be “made” within the 28-day period does not mean “received” but “dispatched” (by the Applicant).
Stewart has been applied in in EPL20 v Minister [2021] FCAFC 173 (which was subject to an unsuccessful special leave application) and Sillars v Minister [2021] FCAFC 174.
One of the admin law thorny issues (which wasn’t necessary to decide) related to the AAT which affirmed the revocation because it found that the representations were out of time (based on the first notice). However, as Allsop CJ points out, did it have power to review an invalid decision at all?
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by Paul Cutler | Apr 14, 2022 | Uncategorized
In 2015, the Applicant was convicted of stalking and fined for common assault (it was unclear if that was a conviction or not). In his 2016, 2017 and 2018 visa applications the question about “any convictions” was answered “no”. However, in his 2019 application for a 485 visa the 2015 conviction was disclosed and this led inexorably to a refusal on the basis of PIC 4020 (false and misleading information had been provided). This is despite the usual arguments about the agent left the info off the earlier applications and “if I was dishonest I wouldn’t have disclosed it in 2019” type arguments.
However, things got off to a bad start in the AAT when the Member accused the Applicant of “playing games” by requesting an interpreter. It was one of those cases where the Applicant did speak good enough english (to meet the 485 requirements) but felt insecure about appearing in the Tribunal without one. Anyway things went downhill from there and 35 minutes later ex-tempore reasons were delivered (there were later written reasons) affirming the decision of the delegate.
The ground of review in the circuit court was “A reasonable bystander might apprehend – from the Tribunal’s frequent interruptions, apparent closed mind to the evidence, scornfullness, exaggeration, observation that the applicant’s evidence was “unusual”, refusal to allow the applicant to use an interpreter, and failure to consider evidence favourable to the applicant that was before it – that the Tribunal might not have brought an open mind to its task“. That ground ultimately succeeded in the Full Court (see Chen v Minister [2022] FCAFC 41).
If nothing else the case is a good template for how to conduct an apprehended bias case. Judges were convinced to listen to the recording of AAT hearing and there was lots of argument about the “use of an intimidating, loud and/or rude, and incredulous or belittling tone“. Even though the matter has been remitted there is another 4020 battle ahead for this applicant.
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by Paul Cutler | Apr 8, 2022 | Uncategorized
Section 477 Migration Act provides a 35 day time limit on an appeal to the (former) Federal Circuit Court. Unlike reviews in the AAT that time can be extended if its “necessary in the interests of the administration of justice” to do so. In BTI15 v Minister [2022] FCAFC 49 the Applicant was 10 months and 29 days out of time.
The longer the time, the more “exceptional” the circumstances have before the court will grant an extension. BTI15’s explanation was that he had a history of mental health issues and had been hospitalised for mental illness. One may think that this would be considered an “exceptional” circumstance. Unfortunately for the Applicant, there was no clear evidence as to how his mental illness and hospitalisation prevented him from obtaining legal advice in a timely manner. The Court also noted that a consideration of the merits of the case was a factor to be taken into account, but with a long delay, “strong grounds” would be required. No strong grounds were found.
Ultimately the appeal was dismissed, there was nothing “exceptional” in BTI15’s case that would warrant a 11 month extension of time. The case is a useful discussion of how the jurisdiction in s477 should be exercised. However, better to avoid 477 at all if possible. Life will be a lot easier if you do things on time.
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by Paul Cutler | Mar 30, 2022 | Uncategorized
The Minister isn’t often an appellant from an AAT decision. However, when the AAT found that Ms Darnia-Wilson passed the character test despite a foreign conviction it was a “bridge too far”. The decision in Minister v Darnia-Wilson [2022] FCAFC 28 (heard by a full court at first instance) is interesting for 3 reasons:
Reason 1
The law in respect of foreign judgments and the character test was stated by Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33: “Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision“.
Reason 2
There was quite a sharp rebuke to the AAT, where at [21] the Court said: “in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 152–153 [43] Gleeson CJ, Gummow, Kirby and Hayne JJ affirmed that the judicature exercises “control over administrative interpretation of legislation”. They said (at 153 [43]), in applying what Marshall CJ had held:
An essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers
Ouch!
Reason 3
Because the Tribunal made an error of statutory construction that has consequences beyond this particular case, a declaration was made: “that on its proper construction, s 501(7)(c) applies to a sentence to a term of imprisonment, whether imposed by an Australian or a foreign court“.
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Generally spouse visas are provisional for 2 years before they become permanent. This is to weed out the non-genuine or short term relationships. There is an exception to the 2 year rule if there is family violence. In Minister v Gupta [2022] FCAFC 51 the Full Court had to resolve an issue about the construction of 100.221(4) which provides inter alia: (a) the applicant first entered Australia as the holder of a Subclass 309 (Partner (Provisional)) visa and continues to be the holder of that visa; and (b) the applicant would meet the requirements of subclause (2) or (2A) [the 2 year rule] except that the relationship between the applicant and the sponsoring partner has ceased [because of family violence]….
