Ail19 v Minister for Home Affairs
[2019] FCCA 1894
•21 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIL19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1894 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal not to grant to the applicant a Bridging E (Class WE) visa – applicant needed a 20 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no reasonable prospects of success for proposed substantive grounds – application for extension refused. |
| Legislation: Migration Act 1958 (Cth), ss.189, 194, 195, 477 Migration Regulations 1994 (Cth) |
| Cases cited: Bechara v Bates [2018] FCA 460 EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 |
| Applicant: | AIL19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 185 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms A. Nanson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 185 of 2019
| AIL19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of India aged 38 years, having been born on 21 March 1981.
By Application filed in this Court on 30 January 2019, he seeks:
(a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 20 days outside the 35-day time limit prescribed by s.477(1) to make his substantive application to this Court; and
(b)to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 6 December 2018 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 28 November 2018 refusing to grant to him a Bridging E (Class WE) visa (WE Bridging visa) under s.73 of the Act.
Background
On 1 June 2009 the Applicant was granted a Student (Class TU) (Subclass 572) visa (Student visa) as the dependent spouse of his wife as primary Student visa holder. On 18 November 2010, his Student visa was cancelled due to a breakdown in his marital relationship which ultimately resulted in a divorce in Australia. He thus became an unlawful non-citizen on 18 November 2010.
On 18 November 2011, he lodged an application for a Protection (Class XA) (Subclass 866) visa (Protection visa) and was granted an associated Bridging visa C, but ultimately on 20 July 2012 the then Refugee Review Tribunal affirmed an earlier Delegate’s decision not to grant the Protection visa to the Applicant. The Applicant then became an unlawful citizen again on 28 August 2012 when the Bridging visa C ceased.
The Applicant then remained in Australia until located by New South Wales Police on 14 November 2018 when he was detained under s.189 of the Act and transferred to the Villawood Immigration Detention Centre. On 26 November 2018 the Applicant applied for the WE Bridging visa which contained two subclasses, namely Subclass 050 and Subclass 051.
Under cl.050.212(3) of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) the Applicant had to relevantly satisfy the following:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined; or
(b) the Minister is satisfied that the applicant will apply, in Australia, within a period allowed by the Minister for the purpose, for a substantive visa of a kind that can be granted if the applicant is in Australia.
I note that by force of s.37 of the Act a “bridging visa” is a temporary visa and that a “substantive visa” by force of s.5(1) is relevantly a visa other than a bridging visa.
Decision of Delegate
The Applicant was interviewed at an Immigration Status Service Located Person Interview on 15 November 2018. The evidence establishes that on 17 November 2018 the Applicant, in compliance with s.194 of the Act, was made aware of s.195 and that section was explained to him. He made a written application as provided for by that section on the same date to extend the time for him to make a further substantive visa application, namely, as earlier foreshadowed by him, for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa (collectively, Partner visa) in relation to his marriage on 7 December 2012 to a Thai lady with whom he had had a son.
Conformably with s.195 of the Act the Applicant was told that he had a time-frame which would expire on 27 November 2018 to lodge a substantive visa application and he signed an acknowledgement in that respect which appears at Court Book page 32. The date of the extension up to 27 November 2018 complied with s.195(1)(b) in that such date was five working days after the two working days provided for by s.195(1)(a) which commenced on Monday 19 November 2018 and extended to 20 November 2018 and the five working days extended over Wednesday 21 November 2018, Thursday 22 November 2018, Friday 23 November 2018, Monday 26 November 2018 and Tuesday 27 November 2018.
Then on 26 November 2018, the Applicant made his application for the WE Bridging visa. However, he did not on or before 27 November 2018 make any substantive visa application, that is, for a Partner visa or any other substantive form of visa. That meant that by force of s.195(2) of the Act the Applicant as a detainee was not able to apply thereafter for a visa other than a bridging visa or Protection visa.
In the result, the Delegate in his Decision Record refused the application for the WE Bridging visa, stating as follows at pages 46 to 47 of the Court Book:
[AIL19] arrived in Australia on 06/07/2009 as the holder of a Student Visa - dependant (Subclass TU-572). This visa was valid until 07/11/2011. I note that [AIL19]’s dependant student visa was cancelled on 18/11/2010 under section 116(1) of the Migration Act (the Act) because he was no longer the spouse of the main visa holder. As a result, Mr Singh became an Unlawful Non-Citizen (UNC) in the community after this date.
On 18/11/2011 [AIL19] lodged an application for a Protection Visa (PV) and was granted an associated Bridging Visa C (BVC) on the same day. The PV application was refused on 27/03/2012 and the then Refugee Review Tribunal (RRT) affirmed the department's decision on 20/07/2012. [AIL19]’s associated BVC ceased on 28/08/2012 and he became an UNC in the community for the second time.
On 14/11/2018 Police attended the residential address of 7/2014 Wakaden Street, Griffith responding to a possible domestic violence incident. A status check with the Immigration Status Service (ISS) confirmed [AIL19]’s unlawful status since 29/08/2012. The Located Person Interview indicates that [AIL19] was charged with “Stalk/Intimidate Intend Fear of Domestic Violence Nature”. He was bailed which required him to appear at the Griffith Local Court on 28/11/2018. [AIL19] was subsequently detained pursuant to section 189 of the Act. He was transferred to the Villawood Immigration Detention Centre (VIDC), where he currently remains.
An application for Bridging Visa E (BVE) was received by the Department on 26/11/2018 by email. The application was forwarded to the NSW Detention BVE Team on 27/11/2018 and the same day the Detention Review Officer sighted the application as required by Item 1305(3)(c) of the Migration Regulations.
I note on Form 1008 that in Part D, question 9, [AIL19] has placed a tick to ‘Applicant for a substantive visa’. In question 15, [AIL19] writes, in part, “I have married to the girl name Prabjouv Child five years ago here in Australia in court in the Melbourne city. I have all the certificate and the documents related. I made mistake that I haven't put the application for the Partner visa on that time because I was short of money on that time and jobless a/so”.
I note that [AIL19] requested to extend the timeframe to lodge a substantive visa application pursuant to section 195 of the Act, as such he had to lodge a substantive visa application, in his case Partner visa application, on or before 27/11/2018.
During the Located Person Interview (LPI) conducted on 15/11/2018, when asked, in part, “Do you have a visa to be in Australia” [AIL19] stated that “no”. When asked “Do you know when your visa finished” [AIL19] replied that “No I don't know”. When [AIL19] was advised “Your visa finished on 28/08/2012”, [AIL19] replied as “Yes I know but I got married”. When asked “Why did you not speak with immigration?” [AIL19] replied “I have no money and I have no money to file anything”. When asked “Does your wife know that you have no visa?” [AIL19] replied “Yes she knows”. When asked “What did you and your wife plan to do” [AIL19] replied “We just save a little bit of money”.
In considering whether [AIL19] meets the time of application criteria, I have taken into consideration information provided by him in his application, his immigration history and available information on Departmental databases and other Departmental legislation and policy.
In reference to whether or not I am satisfied if [AIL19] meets the time of application criteria as set out in clause 050.212 of Schedule 2 to the Migration Regulations 1994, I have considered the following:
Section 195 of the Migration Act states:
1) A detainee may apply for a visa:
a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.
At the time of application and preparing this decision record on 28/11/2018, Department systems do not indicate that [AIL19] has lodged a substantive visa application from detention. As stated above, he had sought the opportunity to lodge an application, in his case Partner visa application, from detention and he knew that he should lodge an application on or before 27/11/2018. However, he has failed to do so and has now passed the legislative timeframe.
As outlined above, [AIL19] had previously lodged a PV application, which was finally determined. Consequently, he is now barred to lodge a repeat PV application due to section 48 of the Act.
In summary, [AIL19] does not have any ongoing application for a substantive visa, merits or judicial reviews at the time of application. He does not have any ongoing Ministerial Intervention requests. I note that he has not provided any evidence of departure arrangements.
No other grounds that would meet the Time of Application Criteria as per Regulation 050.212 have been raised by [AIL19] in his BVE application, nor are there any apparent to this decision maker.
As such, I find that [AIL19] does not satisfy the requirements of cl.050.212 (Time of Application Criteria).
This visa application is also an application for a Subclass 051, [AIL19] is not an eligible non citizen as set out in clause 051.211 of Schedule 2 of the Regulations and therefore does not meet the requirements for the grant of the visa.
I therefore refuse the application for a Bridging Visa E to [AIL19].
It is to be noted that the Delegate thus also considered whether or not the Applicant could comply with Subclass 051 but found that he could not, because to satisfy cl.051.211 of the Regulations he had to be an eligible non-citizen, and he was not.
Tribunal Decision
On 28 November 2018 the Applicant applied for merits review of the decision of the Delegate and he appeared at a hearing before the Tribunal to give evidence and present arguments on 6 December 2018. It is clear from the Decision Record of the Tribunal that at the time of the hearing it was common ground that the Applicant had not made a valid application for a substantive visa on or before 27 November 2018.
At [2] – [14] of its Decision Record the Tribunal set out the background facts. At [15] it noted that the Applicant’s current wife was of Thai ethnicity but an Australian citizen and that they were married on 7 December 2012 and had lived thereafter together as a married couple in Griffith, New South Wales.
At [16] of its Decision Record the Tribunal set out how the Applicant had come to the notice of the New South Wales Police and ultimately gone into immigration detention. At [17] it found that in the circumstances, at the time of his detention by the Department of the Minister, the Applicant was an unlawful non-citizen.
I note that at [18] of the Decision Record there seems to be a typographical error in that there is a stray and inapt “not” which should not appear there.
From [19] – [25] of its Decision Record the Tribunal focused on cl.050.212(2) – (9) of the Regulations which applied at the time of application and which also by reason of cl.050.221 continued to need to be satisfied at time of decision. At [20] it noted that the Applicant was seeking to meet cl.050.212(3), as he did not claim to meet any of the other alternative criteria in cl.050.212. At [21] the Tribunal stated that cl.050.212(3) would be met if the Applicant had made in Australia a valid application for a substantive visa which had not been finally determined or if the Tribunal was satisfied that the Applicant would apply for such a substantive visa within a specified period. Then at [23] and [24] it stated as follows:
[23] It was noted by the Tribunal at the hearing that the applicant expressed his intentions and those of his current spouse of making the necessary application to the Department for a Partner visa. The Tribunal was provided with a written statement signed by the applicant’s spouse expressing her intention to submit an application for a Partner visa. The Tribunal accepts the applicant’s submission that there is an intention by him and his wife to so commit to the submission of such an application. The Tribunal also accepts as credible the applicant’s claim that an application would have been submitted but the lack of funds to pay for the application had prevented the applicant and his wife from doing so. The applicant stated that an effort would be undertaken by him and his wife to submit an application to the Department but he did not provide any specific commitment or suggested timeline.
[24] Moreover, the applicant requested the Tribunal that he had been given ‘bad advice’ about the Bridging visa application and not enough time to put together all documents and to complete the application forms for a Partner visa. He expressed a preference to the Tribunal that he remains in immigration detention and to coordinate with his spouse the preparation of the documents and application for the Department’s consideration. Therefore the Tribunal finds that the applicant had not made a valid application for a substantive visa that can be granted in Australia. Accordingly, the applicant does not meet the requirements of cl.050.212(3).
In these circumstances, the Tribunal found that the Applicant could not satisfy cl.050.212(3) of the Regulations and at [25] of the Decision Record it also found that, because the Applicant was not an eligible non-citizen, he could not satisfy cl.051.211 and therefore did not meet the requirements for the grant of a WE Bridging visa. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the WE Bridging visa to the Applicant.
Proposed Grounds of Attack on Tribunal Decision in this Court
The proposed substantive Grounds are notable for their brevity and lack of content. They are as follows:
1. Clause 050.212 of schedule 2 to the Migration Regulation 1994.
2. Clause 051.211 of schedule 2 to the Migration Regulation 1994.
No error of any kind is identified with respect to the decision of the Tribunal. Nothing said by the Applicant at the hearing in this Court identified any jurisdictional error. I note that, in relation to the different but analogous position in the Federal Court in relation to appeals being brought out of time to that Court, Farrell J in EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] said:
[12] While the difficulty faced by a self-represented litigant cannot be minimised, this Court cannot meaningfully engage with the appellant’s ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge. As pointed out by Bromwich J in FLW17 v Minister for Immigration & Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Where no identifiable error on the part of the primary judge has been alleged, let alone established, and none is otherwise apparent, the appeal must be dismissed with costs. See also SZTOG v Minister for Immigration & Border Protection [2018] FCA 112 at [17], [24]–[26], [29]–[30] and [32] per Flick J.
In my view, the Applicant has failed to assert or identify any kind of jurisdictional error affecting the decision of the Tribunal and I am for myself unable to discern any jurisdictional error.
Application for Extension of Time
That conclusion means that, although otherwise the required extension is relatively slight and the delay readily explicable because of the fact that the Applicant was in detention, to grant an extension would, in truth, be an exercise in futility. The Applicant’s Ground for an extension of time is verbatim as follows:
1. I have been tried to apply this application couple of times before in the time period, but because of incomplete it got rejected.
In SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at 451 [46] – [47], Foster J noted that s.477 of the Act did not set out any particular criteria which must be satisfied as part of the concept of the interests of the administration of justice, but the factors to which the Court commonly had regard included:
a)whether there has been a reasonable and adequate explanation for the applicant’s delay;
b)whether there is any prejudice to the Minister (the Minister conceded no specific prejudice); and
c)whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the required extension of time.
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
Further, as Burley J in BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 said at [17]:
[17]In considering whether an extension of time should be granted, the Court usually has regard to the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 (MZABP) at [62]-[63] (per Mortimer J); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].
Conclusion
In my view, the Applicant has no prospects of success for his proposed substantive Grounds and in the circumstances there would be no utility in granting an extension of time to him. Accordingly, I am not satisfied that it is necessary in the interests of the administration of justice to grant an extension and the Application in that regard made by the Applicant to this Court is to be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 10 July 2019
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