Ara v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FCA 1483

FEDERAL COURT OF AUSTRALIA

Ara v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1483

Appeal from:	Ara & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1948
File number(s):	NSD 337 of 2021
Judgment of:	DOWNES J
Date of judgment:	29 November 2023
Catchwords:	MIGRATION – application for extension of time to appeal decision of (then) Federal Circuit Court of Australia dismissing application for judicial review – where no explanation provided for extensive delay – where no draft notice of appeal was filed and served – application dismissed
Legislation:	Federal Court Rules 2011 (Cth) rr 36.01, 36.03, 36.05
Cases cited:	Ara & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1948
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	14
Date of hearing:	10 November 2023
Counsel for the Applicants:	The Applicants appeared in person
Solicitor for the Respondent:	Mr A Moss of Clayton Utz

ORDERS

NSD 337 of 2021

BETWEEN:

ROWSHAN ARA

First Applicant

MOHAMMED MIZANUR RAHMAN

Second Applicant

RAZIA SULTANA

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	DOWNES J
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application for an extension of time is dismissed.

2.The applicants pay the respondent’s costs, fixed in the amount of $6,500.

3.The name of the respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWNES J:

1. This is an application for an extension of time in which to appeal from a decision of the (then) Federal Circuit Court of Australia made on 16 July 2020: Ara & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1948 (J).

2. As the legal principles are well-settled and the applicants did not challenge the Minister’s submissions as to the application of those principles to the facts of this case, it is appropriate to deliver a short form judgment in this matter.

   Relevant background

3. On 27 May 2019, the first applicant lodged an application to waive condition 8503 which applied to her visa (the first waiver application).  That condition has the effect that the visa holder is not entitled to be granted any substantive visa (other than a protection visa) whilst they remain in Australia.  That application was refused on 6 June 2019.

4. On 26 June 2019, the first applicant lodged a second application for a waiver of condition 8503 (the second waiver application), claiming that she wished to apply for a “medical treatment visa due to [her] current health condition”, which had “deteriorate[d] during [her] stay in Australia”.  Subsequent condition 8503 waiver applications were made by the second and third applicants on 16 July 2019, which raised no new or further circumstances for consideration (the dependent waiver applications).

5. On 26 July 2019, a Delegate of the Minister refused the second waiver application and the dependent waiver applications.  The Delegate’s findings are set out in the judgment of the primary judge below at [5]–[12], [26]–[28] J.  The applicants sought judicial review of the Delegate’s decision on two grounds.  That application was heard by the primary judge, with judgment being delivered on 16 July 2020.

6. Notwithstanding that the primary judge wrongly cited the Delegate’s decision on the first waiver application in the opening paragraphs of his judgment (see [2]–[3] J), his Honour correctly referred to, and in substance reviewed, the Delegate’s decision on the second waiver application and the dependent waiver applications.  The applicants did not submit otherwise.

   Application for Extension of Time

7. The applicants commenced this proceeding by way of application and supporting affidavit filed on 16 April 2021. Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) requires a notice of appeal to be filed and served within 28 days after the date when the order or judgment was pronounced. As the order appealed from was made on 16 July 2020, it follows that the applicants require an extension of time of 245 days, or more than eight months. A delay of this magnitude is a strong factor that militates against an extension of time being granted. That is so even though the Minister accepts that he will not suffer any identifiable prejudice, beyond general considerations of delay, if the extension of time is granted.

8. Importantly, the affidavit which was filed with the application contains no explanation for the delay in filing the application, which has the consequence that r 36.05(3)(c)(ii) of the Rules has not been complied with.  The lack of explanation for the delay in commencing these proceedings, in circumstances where the delay is so significant, is a sufficient reason in and of itself to refuse the extension of time sought by the applicants.

9. The applicants have also failed to file and serve a draft notice of appeal that complies with rr 36.01(1) and (2), as required by r 36.05(3)(d) of the Rules.  This had the consequence that the Minister and I needed to box at shadows to determine the nature of the proposed appeal, should the extension of time be granted.

10. As to any proposed appeal, the Minister submits, and I accept, that no reasonably arguable appealable error exists.  The relevant legal framework for applications to waive condition 8503 is set out in the judgment of the primary judge below at [41]–[42] J.  Each of the findings made by the Delegate were open to her based on the wording of the relevant provisions of the Migration Regulations 1994 (Cth).

11. In those circumstances, the primary judge did not err by finding the Delegate applied the correct test and dismissing the first ground of the application for judicial review.  Similarly, in circumstances where the second ground of review (regarding an alleged denial of procedural fairness) was not particularised, the primary judge was also correct to dismiss that ground.

12. Further, the material filed by the applicants in this proceeding does not reveal any appealable error.  The first applicant’s affidavit, which was filed with the application for the extension of time, only re-agitates the point that was sought to be advanced below: namely, that the first applicant is suffering from “hypertension and severe sciatica”.  However, that is not a basis for finding error in the primary judge’s reasons.

    Disposition

13. For these reasons, the application for an extension of time will be dismissed with costs fixed in the amount of $6,500.

14. The Minister also sought an order that the name of the respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.  I will make that order.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.

Associate:

Dated:       29 November 2023