FEDERAL COURT OF AUSTRALIA Aurpeerapatthana v Minister for Immigration and Citizenship [2011] FCA 887 Citation: Aurpeerapatthana v Minister for Immigration and Citizenship [2011] FCA 887 Appeal from: Aurpeerapatthana v Minister for Immigration & Anor [2011] FMCA 222 Parties: NATTHAWAT AURPEERAPATTHANA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: VID 328 of 2011 Judge: JESSUP J Date of judgment: 5 August 2011 Catchwords: PRACTICE AND PROCEDURE – Where new grounds sought to be raised on appeal not argued before Federal Magistrate – If party entitled to raise issues for the first time on appeal, whether the appeal court would become de facto the primary court – Whether enough that respondent would not suffer prejudice – Whether in the interests of justice to allow grounds of appeal not advanced below – Whether any of the proposed grounds had merit Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 NAJT v The Minister for Immigration and Multicultural and Indigenous Affairs 147 FCR 51 SZKMS v The Minister for Immigration and Citizenship [2008] FCA 499 Date of hearing: 5 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: Mr M Gerkens Solicitor for the Appellant: Fernandez and Johnson Counsel for the Respondents: Ms S Burchell Solicitor for the Respondents: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 328 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NATTHAWAT AURPEERAPATTHANA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 5 AUGUST 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 328 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NATTHAWAT AURPEERAPATTHANA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 19 AUGUST 2011 PLACE: MELBOURNE RULING 1 This proceeding is an appeal from a judgment of the Federal Magistrates Court of Australia given on 8 April 2011 dismissing an application for judicial review of a decision of the Migration Review Tribunal, which affirmed an earlier decision of a delegate of the respondent Minister refusing to grant the appellant a Partner Residence Class BS Visa under the Migration Act 1958 (Cth) and the regulations made under that Act. On the hearing of the appeal, counsel for the appellant sought leave to rely upon points which were not advanced below. That application for leave is opposed. 2 Before coming to the application for leave as such, it might be useful if I were to say something briefly about the regulatory environment under which the Tribunal was obliged to undertake its task. The appellant applied for the visa upon the ground that he was in a married relationship with a lady who was his sponsor for the purposes of the regulations. A married relationship is a relationship of the kind defined in reg 1.15A(3) of the regulations. Under that regulation, the Minister, and therefore the Tribunal, was obliged to have regard to all of the circumstances of the relationship including: (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationships; and (d) the nature of the persons' commitment to each other. 3 In its decision of 5 August 2010, the Tribunal made certain findings by reference to the categories set out in reg 1.15A(3) as I have described them. Under the heading "The Financial Aspects of the Relationship", the Tribunal said: The parties have not demonstrated that they jointly own any major assets. Although both of their names are on the residential lease for the property in which the applicant resides, the only major assets are the fixed term deposit which is in the applicant's name alone, and the joint bank account which shows very little activity. The parties do not live together and therefore do not share day-to-day living expenses. The Tribunal was provided with little evidence that the parties had sent money to each other. Accordingly, the Tribunal finds that the parties do not have a shared financial relationship. With respect to the criterion which the regulations identify as "The Nature of the Household", the Tribunal said: Since their marriage in October 2004 the parties have spent less than half that time living together. Other than a lease for a residential property in Victoria, there has been no demonstration as to how the parties have set up a household together. At the hearing, the applicant said that the sponsor did not always live with him even when she was in Australia. Accordingly, the Tribunal is satisfied that the applicant and the sponsor do not live together when the sponsor is in Australia and they have not set up household together. By reference to what the Tribunal described as "other relevant considerations", it said: According to the evidence, the parties have been married for almost six years and for much of that time they have lived in different countries. According to the applicant, of the time that the sponsor has lived in Australia, she has not always lived with him. In considering the implications of regulation 1.15A(5) the Tribunal is satisfied that the parties have lived together at the same address for six months or longer however, the Tribunal is not satisfied that this factor overrides its finding that the applicant and the sponsoring spouse have a mutual commitment to a shared life as husband and wife to the exclusion of all others. 4 The case which the appellant desires to advance in this court relates to each of the extracts from the Tribunal's decision which I have set out above. With respect to the financial aspects of the relationship, the appellant would now wish to submit that there is an inherent contradiction, and therefore an illogicality, in the first passage from the Tribunal's reasons. It is said that the bottom line conclusion that the parties do not have a shared financial relationship cannot sit alongside the findings of fact that they are jointly named as tenants under the lease of residential property in which the appellant resides and that they have a joint bank account together (which, I was assured by counsel for the appellant, had some $5000 in it at relevant times; and I was told was, additionally, of another account, not mentioned by the Tribunal, in which there was said to be a balance of some $7000). 5 The case which the appellant would wish to run in this regard is, as I understand it, one which invokes the principle referred to in the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [647]-[648]. Under that principle, a decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision-maker did not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence, or if there was no logical connection between the evidence and the inferences or conclusions drawn. 6 With respect to the matter of the financial aspects of the relationship, reg 1.15A(3)(a) requires that, in addressing that question, the Minister, and therefore the Tribunal, have regard specifically to any joint ownership of real estate or other major assets, to any joint liabilities, to the extent of any pooling of financial resources (especially in relation to major financial commitments), to the question whether one party to the relationship owes any legal obligation in respect of the other, and to the basis of any sharing of day-to-day household expenses. It is to be noted that the regulation does not require the Tribunal to make a finding in terms as to whether there was what it described as a "shared financial relationship". That expression is not a term of art under the regulations, but was, in the way it was employed by the Tribunal, a summary way of expressing its conclusion under reg 1.15A(3)(a). 7 It is apparent from the Tribunal's reasons that it was conscious of the specific circumstances to which it was required to have regard under that paragraph of the subregulation, and that it took into account not merely the residential lease and the joint bank account to which it referred, but also other circumstances which would be relevant under the paragraph. I consider, therefore, that the point which the appellant would now seek to make under that paragraph of the subregulation is not self-evidently strong. In fact, counsel for the appellant made it clear that he had said more or less everything which was to be said about the point, and I am disposed to think that it would have little prospect of succeeding if the leave which the appellant seeks were to be granted. 8 The second point which the appellant seeks to raise concerns what the Tribunal described as the nature of the household. Jurisprudentially, the point is the same as the first one, namely, that the second passage in the Tribunal's reasons to which I have referred in para 3 above contains an inherent contradiction, and therefore an illogicality, such as would sustain a conclusion that it had constructively failed to exercise the jurisdiction with which it was invested. Counsel for the appellant stressed that the Tribunal appears to have implied that the appellant and his sponsor may have been living together in Australia for up to three years, since the total time which had passed since their marriage at the time of the Tribunal's decision was almost six years. The point was that if they had been living together for nearly three years, it was contradictory and illogical for the Tribunal to express its satisfaction that they did not live together when the sponsor was in Australia and that they had not set up a household together. 9 The illogicality of the Tribunal's reasoning, in my view, cannot be considered without what appears to be a striking aspect of the fact situation which underlies the present appeal: it is the appellant who appears to have spent his time substantially in Australia, and it is his sponsor who appears to have spent very significant periods of the time overseas with her own family. In another passage of the Tribunal's reasons dealing with the nature of the parties' commitment to each other under reg 1.15A(3)(d), the Tribunal said: The parties were married in October 2004 and since that time could have only lived together for approximately 104 of the approximate 296 weeks to date. The sponsor has spent most of her time living with her family in Thailand, while the applicant has mainly lived in Australia. 10 Under reg 1.15A(3)(b), the Tribunal was obliged to have regard to the nature of the household, and specifically to any joint responsibility for care and support of the children, to the parties' living arrangements, and to any sharing of responsibility for housework. It was not submitted on behalf of the appellant that the Tribunal had not had appropriate regard to these three matters. Rather, it was said that the observation that they had spent less than half their time living together was inconsistent with the conclusion that they did not live together when the sponsor was in Australia and that they had not set up a household together. It was not said, and, given what the Tribunal said elsewhere in its reasons, it could not be contended, that the finding that the appellant and the sponsor did not live together when the sponsor was in Australia was not reasonably open to the Tribunal on the facts of the case. Indeed, in another paragraph of its reasons dealing with the matters arising under reg 1.15A(3)(c), the social aspects of the relationship, the Tribunal noted the evidence of the appellant that his sponsor spent some of her time living with friends at another address. The Tribunal referred to a significant part of their lives spent apart since their marriage. 11 In these circumstances, I do not think there is anything illogical or inconsistent about the two findings to which objection has been taken on behalf of the appellant. The fact is that, even if they had spent nearly half of their time living together, the appellant and his sponsor had manifestly spent more than half of their time living apart. The Tribunal's expression of satisfaction that they did not live together was given in the present tense, and was a general conclusion as to the habits and practices of these two people which not only was open on the evidence before the Tribunal, but also, in my view, was not inconsistent with anything which the Tribunal specifically held. In the circumstances I am disposed to the view that this second point is a relatively weak one which would not have good prospects of success. 12 The third point was an odd one, in one sense, in that counsel for the appellant frankly conceded that the potential availability of the point might depend upon whether the Tribunal's reasons contained a typographical error. The observation in the third passage, which I have set out above, that the Tribunal was not satisfied that the fact that the parties had lived together at the same address for six months or longer overrode its findings that the applicant and the sponsoring spouse had a mutual commitment to a shared life as husband and wife to the exclusion of others, implies, without any equivocation, that such a finding had been made, or was at least implicit in what the Tribunal had earlier written. 13 However, as I understood counsel for the appellant to recognise, that does not appear to have been the sense of the earlier reasons of the Tribunal. The sense of those reasons was that the appellant and his spouse did not have a mutual commitment to a shared life as husband and wife to the exclusion of others. Immediately after the passage to which I have referred above, with respect to the number of weeks that the parties had lived together, the Tribunal continued: Notwithstanding earlier assertions that the sponsor has had to take care of her ailing parents by being available to take them to the doctor, she concluded her evidence by telling the Tribunal that her parents only need to go to the doctor once a month and that her sister-in-law only got a job in November 2009. This means that both the applicant and her sister-in-law were home and available to assist with the care of the sponsor's parents and niece for approximately 5 years from the time of her marriage until November 2009. Further, the sponsor described her parents' health conditions as being high blood pressure, high cholesterol, and in the case of her mother, diabetes. The Tribunal has not been provided evidence that these conditions were acute or that they placed the sponsor's parents at critical risk, or that they needed her constant care over such an extended period. These factors indicate to the Tribunal that the sponsor has a greater commitment to her parents, who have relatively common age-related medical conditions, and her family in Thailand than she does to the applicant in Australia. The Tribunal accepts that there is a cultural element to her conduct but the Tribunal considers that she has little commitment to her marriage. These reasons were expressed under para (d) of subreg (3), namely, the nature of the persons' commitment to each other. The sense of the Tribunal's finding in that regard that the parties did not have a mutual commitment to a shared life as husband and wife is confirmed by the summary of its findings provided by the Tribunal in the following passage: On the basis of the Tribunal's findings that the parties do not have a shared financial relationship; that they do not live together when the sponsor is in Australia; that they have not set up a household together; that they have not demonstrated that there is a social recognition of them as spouses, and – that they do not have a shared commitment to the relationship, the Tribunal is not satisfied that at the time of decision the applicant and the sponsoring spouse has a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied that the relationship is genuine and continuing. They therefore, do not meet the requirements of r 1.15A(1A)(b)(i) and 1.15A(1A)(b)(ii) for a married relationship. 14 I am bound to say that I think this third point advanced on behalf of the appellant is distinctly unmeritorious, and would be unlikely to sustain a finding that the Tribunal constructively failed to exercise the jurisdiction which it was given under reg 1.15A. 15 At this point, I am not called upon to decide whether the three new points sought to be agitated on behalf of the appellant are good ones or bad ones, but only to take into account the apparent strength of them as a factor in exercising my discretion on the present application to advance them in circumstances where they were not advanced before the Magistrate below. I consider that that discretion ought to be exercised by reference to the considerations adverted to in NAJT v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [85] and by reference also to what was said by Lander J in SZKMS v The Minister for Immigration and Citizenship [2008] FCA 499 at [21] ff. Some of the considerations to which his Honour adverted strike me as particularly germane to the problem which presently arises. His Honour said: Parliament has given the Federal Magistrates Court jurisdiction in relation to applications of this kind to the exclusion of this Court: s 476A of the Act. All of the issues which are sought to be ventilated should be addressed at the trial in that Court. Parliament has provided for a right of appeal to this Court and in matters of this kind the appellate jurisdiction of this Court may be exercised by a single Judge: s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). Indeed, that is the case on this appeal. The High Court has made it plain that, ordinarily, a party is confined in its grounds of appeal to matters which have been raised in the Court below. The High Court said, in Metwally v University of Wollongong (1985) 60 ALR 68 at 71: It is elementary that a party is bound by the conduct of its case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. In Coulten v Holcombe (1986) 162 CLR 1, the majority said at [7]: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. Moreover, to allow a new ground of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. Although these observations were expressed in the context of an appeal from the dismissal of an application to review a decision of the Refugee Review Tribunal, in my view the circumstances which presently arise, where the original application was to review a decision of the Migration Review Tribunal, are indistinguishable. 16 Against the considerable weight of the observations made by Lander J, I have the following circumstances which arise in the present case. The first I have already referred to, namely, the three points now sought to be raised on behalf of the appellant have apparently insubstantial prospects of succeeding. The second is that the appellant was professionally represented before the Federal Magistrate. Occasionally, where a party has been unrepresented at first instance, the interests of justice may be served by permitting him or her to raise points on appeal which arise from the circumstance that he or she has, for the first time, been provided with professional representation. That is not this case. The third aspect is that there is no explanation for the failure of the appellant to raise the points which he now seeks to raise before the Federal Magistrate. I am told that the representation which the appellant then had is different from that which he now has, and I note that since the Notice of Appeal was filed in this court, the appellant has changed his solicitor. But I am provided with neither affidavit nor explanation to throw any light upon the course of events which has obliged the appellant to change his solicitor and to be differently represented before this court. What is significant is that no explanation has been offered as to why the points which are now said to be good ones were not raised before the Federal Magistrate. 17 Counsel for the appellant submitted that if he were not to be given leave to raise these new points now, the interests of justice would not be served in the sense that the appellant would not have an opportunity to advance his real case before a court, and he would confront the consequences of not securing a visa without that real case ever having been judicially considered. In my opinion, however, submissions of this kind merely beg the question. If the appellant has a real case now, he had it always from the day that the Tribunal made the jurisdictional errors now sought to be alleged. He had every opportunity to run that real case before the Federal Magistrate, he did not avail himself of that opportunity, and I am not provided with any explanation for that omission. 18 I take into account that the Minister has had short, but not unreasonable, notice of the points now sought to be agitated. I take into account that the agitation of these points will not unduly lengthen the present appeal. And I take into account that the Minister would not suffer any prejudice if leave to argue the point were granted. However, I do not consider that any of those circumstances is sufficient to tip the scales in the appellant's favour, particularly having regard to the persuasive considerations to which Lander J referred in SZKMS. With respect specifically to the absence of any prejudice or inconvenience being visited on the other party to the present appeal, namely, the Minister, I would also advert to what his Honour said in the following paragraphs of his reasons in that case: Rarely will the Minister in an appeal to this Court from a migration judgment of the Federal Magistrates Court be able to point to any prejudice of the conventional kind. That cannot be a reason to allow a party to raise issues not raised in the Court below. In IYER v the Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71, Gyles J said at [86]: In my opinion, it is wrong to analyse a question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than 7 months ago. The Minister has a legitimate interest in the timely disposal of applications for protection visas. There are other public interests, however, to which regard should be had. There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal, otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed. Again, although referable to the refugee context rather than to the migration review context, these observations are equally cogent in the context of the present application. 19 For those reasons I propose to refuse the appellant's application to introduce new grounds or new points into his present case on appeal. 20 [There being no other submissions made in support of the appeal, the appeal was dismissed.] I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 19 August 2011