Akhand v Minister for Immigration - [2018] FCCA 218

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKHAND v MINISTER FOR IMMIGRATION

[2020] FCCA 218

Catchwords:
MIGRATION – Student (temporary) (class TU) (subclass 500) visa – application for an extension of time – no arguable, or reasonably arguable, case on the merits – application refused.

Legislation
Migration Act 1958, s.477(2)
Migration Regulations 1994, Schedule 1, item 1222(4)

Cases cited
Applicant in WAD 230/2014 v Minister for Immigration & Border Protection [2014] FCA 1351
Commonwealth of Australia (Department of Defence); ex parte Marks (2000) 177 ALR 491; (2000) 75 ALJR 470; (2001) 22(4) Leg Rep 2; [2000] HCA 67
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; (1984) 7 ALD 315; (1984) 58 ALR 305; [1984] FCA 176
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47
Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243; (2015) 145 ALD 684; [2015] FCA 184
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZANW v Minister for Immigration and Border Protection [2016] FCCA 2639
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 195 ALR 24; (2003) 77 ALJR 454; (2003) 24(2) Leg Rep 2; [2003] HCA 2
Seiler v Minister for Immigration, Local Government & Ethnic Affairs (1994) 48 FCR 83
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; (2013) 139 ALD 252; [2013] FCA 1284
Tran v Minister for Immigration and Border Protection [2014] FCA 533

Applicant:

FUAD HASSAN AKHAND

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File number:

PEG 438 of 2017

Judgment of:

Judge Wilson

Hearing date:

29 January 2018

Date of last submission:

29 January 2018

Delivered at:

Perth

Delivered on:

29 January 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Advocate for the respondent:

Adam Cunynghame

Solicitors for the respondent:

Sparke Helmore

ORDERS

The application filed on 11 August 2017 for an extension of time under s.477(2) of the Migration Act 1958 be refused.
The applicant to pay the respondent’s costs in the fixed sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA AT PERTH

PEG 438 of 2017

FUAD HASSAN AKHAND

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

The issue in this application is whether it is in the interests of justice that I grant the applicant an extension of time within which to file an application for the issue of constitutional writs.
On 20 March 2017, the applicant applied for a student (temporary) (class TU) (subclass 500) visa. On 19 May 2017, the Department of Immigration and Border Protection (“the Department”) wrote to the applicant informing him that his application was not valid because he did not meet item 1222(4) of Schedule 1 to the Migration Regulations1994. In its letter 19 May 2017, the Department informed the applicant that by reason of his visa application being invalid, he had no rights of a merits review.
As the departmental decision was made on 19 May 2017, the applicant had 35 days within which to file his application in this court, namely by 23 June 2017. Instead of complying with that date, the applicant commenced this proceeding on 15 August 2017, that is to say 53 days beyond the date on which he was required to have commenced this case.
In determining whether to make an order granting the applicant an extension of time, I am required to consider –
a)the magnitude of the delay;
b)any explanation given for the delay; and, most importantly
c)that the applicant has prospects of success if an extension of time were granted.
In this case –
a)the delay was 53 days in duration;
b)no explanation for the delay was given; and
c)the applicant’s prospects of success were not sufficiently arguable to justify the grant of an extension of time.
The applicant, who appeared in person, failed to comply with orders in this court made on 7 September 2017 for the filing of written submissions.
The Minister submitted that an extension of time should be refused.

Synopsis

For the reasons that follow, in my judgment, an order granting the applicant an extension of time of the sort that he sought should be refused.

The learning on extension of time applications

In MZANW v Minister for Immigration and Border Protection,[1] I undertook an extensive review of the authorities that had to the date of that decision (13 October 2016) bore upon the grant of an extension of time. For brevity, I shall not repeat those authorities except to incorporate them by reference in my examination of them between paragraphs 4 and 31 of the reasons in that decision.[2]
[1] [2016] FCCA 2639
[2] Ibid at [4]-[31]
Let me take first the duration of the delay, 53 days. The Minister submitted that there was no specific prejudice caused by the applicant’s delay beyond the public interest in the finality of administrative decision-making, citing the decision of the High Court in Commonwealth of Australia (Department of Defence); ex parte Marks.[3] Drawing on the observations of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment,[4] the Minister submitted that the absence of prejudice is not a sufficient reason for the grant of an extension of time, and further, the longer the delay, the more persuasive the explanation must be, as was held in Tran v Minister for Immigration and Border Protection,[5] as well as in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection.[6] Perry J made other equally poignant observations of the matters to be established on an extension of time application in Mohammed v Minister for Immigration and Border Protection.[7]
[3] (2000) 177 ALR 491
[4] (1984) 3 FCR 344
[5] [2014] FCA 533
[6] [2014] FCA 1351
[7] (2015) 231 FCR 243
Of itself, 53 days’ delay is not in the egregious category of delay to commence an application for judicial review. That said, it is abstract to hold that a 53 delay is less deserving of an order granting an extension of time than is, say, a delay of a few weeks or days. The number of days is one factor I must consider as I have done in this case.
Next, I am required to consider the applicant’s evidence of his explanation for the 53 days delay. He gave limited evidence on point in his affidavit sworn on 11 August 2017. To that affidavit he exhibited a document[8] called “medical certificate” dated 23 December 2015. It was addressed “to whom it may concern”. Relevantly distilled, the letter provided as follows:
I reviewed Fuad in orthopaedics outpatients clinic today. Due to complications following his original injuries, he is likely to require revision surgery in the coming year which will necessitate a hospital admission and rehabilitation period.
[8] Annexure C to the applicant’s affidavit sworn on 11 August 2017 and filed on 15 August 2017
That letter was dated 23 December 2015. Two full years have passed since that letter. In the letter, the writer anticipated the applicant requiring revision surgery “in the coming year”, which I took the writer to mean prior to 23 December 2016. The applicant did not give evidence that he actually undertook surgery in 2016 or, for that matter, in 2017. In other words, the 23 December 2015 letter from the Fiona Stanley Hospital was more a prognostication that did not materialise. Yet, in paragraph 4 of his application to commence this proceeding, the applicant stated as follows:
I was in a motorbike accident and had revision surgery on 1 May 2017, from which I am still recovering.
His affidavit sworn on 11 August 2017 said nothing about revision surgery having been undertaken on 1 May 2017. That affidavit included the letter dated 23 December 2015 referred to above. I was unable to be satisfied that the applicant had, in fact, undertaken revision surgery in May 2017 but even if he had, the consequences of any such surgery on his ability to commence this proceeding within the prescribed 35 day period, that is to say by 23 June 2017, was not stated.
In the circumstances, I was not persuaded that the applicant gave an acceptable explanation for the 53 day delay in commencing this proceeding.
But a more compelling reason existed for refusing the grant of an extension of time sought – his case was not “arguable” or “reasonably arguable” or “sufficiently arguable” nor it did not have “reasonable prospects of success”. The authorities that have postulated those tests include MZABP v Minister for Immigration and Border Protection[9] and SZRIQ v Federal Magistrates Court of Australia.[10] Of course, on the hearing of an application for an order extending time to commence a proceeding, an applicant need not establish that his or her grounds will succeed, as was held by French J, as the Chief Justice then was, in Seiler v Minister for Immigration, Local Government & Ethnic Affairs.[11]
[9] (2015) 242 FCR 585
[10] (2013) 236 FCR 442
[11] (1994) 48 FCR 83
The applicant had one ground for his application, namely, that the letter from the Department (which I took him to mean the letter dated 19 May 2017) was incorrect for the four reasons stated. In essence, he contended that his previous student visa expired on 15 March 2017. He said he had lodged this visa application on 20 March 2017, five days after the expiry of his previous student visa. He said he had 28 days after the expiration of his previous student visa within which to apply for the current visa and, as he applied in five days, he complied.
I do not agree.
Complicated as it may have been, reg.1222(4)(d) was the relevant regulation. It required that the visa applicant had not previously been granted a visa based on an application made when the applicant did not hold a substantive visa. Here, the history of the applicant’s visa applications was as follows –
a)at a time when he did not hold a substantive visa, on 31 August 2015 the applicant applied for a previous student visa, which was granted on 7 September 2015; and
b)the applicant’s previous student visa ceased on 30 August 2015.
In other words, at a time when he did not hold a substantive visa, the applicant had in fact been previously granted a visa, namely the visa granted 7 September 2015. Regulation 1222(4)(d) specifically contemplated that situation. That regulation applied where the applicant had not previously been granted a visa based on an application made when the applicant did not hold a substantive visa. Here, at the risk of repetition, some time prior to 7 September 2015, the applicant did not hold a substantive visa. He applied for a visa and was granted one on 7 September 2015. The relevant regulation, reg.1222(4)(d), therefore, directly bore upon that situation. The applicant failed to meet it. His application to the Department was invalid.
I detected no error in the decision of the Department made 19 May 2017.
The Minister contended that this court has jurisdiction to hear an application for review of a determination concerning the invalidity of a visa application, citing the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia.[12] Further, the Minister contended that the validity of an application for a visa is a question for the court relying on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection & Kim.[13] Applying those authorities to the facts of this case, it seemed to me that it was proper for me to embark upon an examination of the validity of the visa application in this case as I had power to do so and the point was pivotal to a proper consideration in this case.
[12] (2003) 211 CLR 476
[13] (2014) 221 FCR 523 (at [27])
That said, in my view, the applicant’s construction of reg.1222(4) was erroneous. The Department’s decision was correct.
There was no basis to conclude that the applicant’s ground for review in its four parts was arguable, reasonably arguable, sufficiently arguable or that it had reasonable prospects of success. In those circumstances, it was not in the interests of justice to grant the applicant an extension of the time he sought.
I dismiss this proceeding and order the applicant to pay the Minister’s costs fixed in the sum of $5,800.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate:

Date: 31 January 2018