Arasu v Minister for Immigration and Border Protection
[2014] FCA 1278
•12 November 2014
FEDERAL COURT OF AUSTRALIA
Arasu v Minister for Immigration and Border Protection [2014] FCA 1278
Citation: Arasu v Minister for Immigration and Border Protection [2014] FCA 1278 Appeal from: Application for extension of time: Arasu & Ors v Minister for Immigration & Anor [2014] FCCA 1456 Parties: POOMPAVAI ARASU, TARUN NIKESH ARASU and MUKHILAN HARRY ARASU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 821 of 2014 Judge: NICHOLAS J Date of judgment: 12 November 2014 Legislation: Migration Act 1958 (Cth) s 474(2)
Migration Regulations 1994 (Cth) cls 050.212 and 050.222Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 201 ALR 437
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425Date of hearing: 12 November 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 21 Counsel for the Applicants: The applicants appeared in person Solicitor for the First Respondent: Ms N Blake of Clayton Utz Solicitor for the Second Respondent: The second respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 821 of 2014
BETWEEN: POOMPAVAI ARASU
First ApplicantTARUN NIKESH ARASU
Second ApplicantMUKHILAN HARRY ARASU
Third ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
12 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal is refused.
2.The first applicant is to pay the first respondent’s costs fixed in the amount of $1600.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 821 of 2014
BETWEEN: POOMPAVAI ARASU
First ApplicantTARUN NIKESH ARASU
Second ApplicantMUKHILAN HARRY ARASU
Third ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
12 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Revised from Transcript)
Before me is an application for an extension of time in which to file an appeal. The orders which the applicants wish to appeal were made by a Judge of the Federal Circuit Court (Judge Cameron) on 1 July 2014. The application for an extension of time was filed on 8 August 2014. His Honour’s order was pronounced on 1 July 2014. Any appeal from those orders was required to be filed within 21 days, that is, by 22 July 2014. Therefore, the application for an extension of time was not filed until approximately two weeks after the time within which an appeal should have been filed.
The Court has a discretion as to whether or not to grant an extension of time within which to file a notice of appeal. The considerations that the Court takes into account are those identified in a slightly different context by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. They include the following: (a) the applicant’s explanation for the delay in filing the appeal; (b) the prejudice, if any, that will be suffered by the respondent if leave to appeal out of time is granted; (c) the merits of the proposed appeal. Seldom, if ever, would a court grant leave to an applicant to file an appeal out of time in circumstances where it was satisfied that the proposed appeal had no prospects of success.
In the present case, the Minister opposes the application for an extension of time. Counsel submits that, even though there is no prejudice occasioned to Minister as a result of the applicants’ delay, the proposed appeal is entirely lacking in merit.
The first applicant, who is a citizen of India, applied for a Bridging E (Class WE) visa on 8 June 2012. Her sons, the second and third applicants, were included in the visa application.
The first applicant was invited to attend an interview with a DIAC officer on 12 June 2012. The first applicant did not attend that interview or a rescheduled interview. The first applicant telephoned the Department to advise that she was unwell and had been admitted to hospital. She faxed a medical certificate from Canterbury Hospital to the Department on 13 June 2012.
The applicants’ visa application was refused by a delegate of the Minister on 18 June 2012 because the first applicant did not attend an interview as required by cl 050.222 of the Migration Regulations 1994 (Cth) (the Regulations) and because the applicants did not meet the requirements of cl 050.212. The applicants sought review of that decision. By a decision given on 14 June 2013 the Migration Review Tribunal (the Tribunal) affirmed the delegate’s decision.
The applicants commenced their proceeding in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. The applicants relied upon some 12 grounds of review, although it is apparent that a number of them overlapped significantly.
The primary judge rejected all grounds of review relied upon by the applicants and dismissed their application on the basis that they were unable to demonstrate that the Tribunal’s decision was affected by jurisdictional error.
The affidavit of the first applicant filed in support of the application for an extension of time does not include any proposed grounds of appeal nor does it contain any other information that might cast some light on why the applicants say the primary judge fell into error. The first applicant, who was not legally represented before me or before the primary judge, was unable to provide any indication as to why she says the primary judge’s decision was incorrect.
The primary judge referred to the relevant provisions of the Regulations at paras [4]-[5] of his reasons. The relevant provisions, as they applied to the applicants, were as follows:
050.22 Criteria to be satisfied at time of decision
050.221The applicant continues to satisfy the criteria set out in clauses 050.211 and 050.212.
050.222
(1)Unless subclause (2), (3) or (4) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.
…
050.21 Criteria to be satisfied at time of application
050.212
(1)The applicant meets the requirements of subclause (2), (3), (3A), (4), (4AAA), (4AA), (4AB), (5), (5A), (5B), (6), (6AA), (6A), (6B), (7), (8) or (9).
(2)An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
The Tribunal found that the applicants did not meet the requirements of cl 050.222. In particular, the Tribunal was not satisfied that any of the applicants attended an interview of the kind referred to in subclause 050.222(1). Nor was the Tribunal satisfied that any of subclauses 050.222(2)-(4) applied to the applicants.
The Tribunal also found that the applicants did not meet the requirements of cl 050.212(2). In this regard, the Tribunal said in its reasons for decision that it was not satisfied that at the time of the application and at the time of its decision, the applicants were making, or were the subject of, acceptable arrangements to depart Australia. The Tribunal went on to find that the applicants did not meet the remaining requirements of cl 050.212.
Although the primary judge referred to and considered 12 grounds of review, there were, in substance, five principal grounds relied upon. Briefly stated, these grounds, and the primary judge’s reasons for rejecting them, were as follows.
First, it was contended by the applicants that the decision of the Tribunal was not a privative clause decision. His Honour rejected this contention and referred to s 474(2) of the Act.
Secondly, it was contended by the applicants that the Tribunal failed to follow proper procedure. His Honour rejected this ground holding at [22] of his reasons:
As has already been noted, the procedures which the Tribunal was required to observe were those set out in div.5 of pt.5 of the Act. The applicants have not identified which, or even that, provisions in that division were not observed by the Tribunal. The most important sections in that division are ss.359A and 360 and based on the Tribunal’s recitation in its decision record of the relevant facts, there is no reason to conclude that a s.359A notice ought to have been given or that the Tribunal’s duties under s.360 were not discharged.
Thirdly, the applicants alleged that the Tribunal was biased. In the absence of any justification for approaching the matter differently, his Honour treated this as an allegation of apprehended bias. His Honour rejected this ground of review. He referred to the test enunciated in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [28]. He concluded that there was nothing in the conduct of the review to justify the contention that the decision was affected by apprehended bias.
Fourthly, the applicants contended that the Tribunal failed to address certain issues in its reasons for decision. It is apparent from the way in which the grounds of appeal relating to this complaint were framed that the applicants contended that the Tribunal should have sought additional information from the applicants which they considered might have assisted their case. His Honour dealt with the matter at [20] of his reasons as follows:
The applicants complained in essence that the first applicant was given no guidance by the Tribunal as to the form or substance of the evidence she provided to it. However, it was always for her and the other applicants to advance their claims, not for the Tribunal to invite them to make an elaboration which they did not themselves choose to express: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].
Finally, the applicants contended the Tribunal’s decision was irrational or unreasonable. His Honour rejected this ground holding at [35] that there was “sufficient material before the Tribunal to reach the conclusion it reached” and that “it could not be said to have been a decision which no reasonable Tribunal would have reached”.
While the rules of Court are, prima facie, to be obeyed, and appeals to be instituted within the time allowed for under the rules, the Court does have a broad discretion which permits it, in an appropriate case, to grant an extension of time. In the present case a number of reasons were advanced explaining the delay by the applicants. Further, as previously mentioned, the Minister accepts that this is a case in which he is unable to point to any prejudice having been suffered as a result of the delay.
If I was satisfied that the applicants had an arguable case, then I would be disposed to grant the extension of time that is sought. However, there is nothing in any of the material put before the Court, either in writing or orally, to suggest that the proposed appeal is even faintly arguable. Moreover, having read the Tribunal’s decision, the reasons of the primary judge and the relevant Regulations, I am satisfied that the Tribunal’s decision and the primary judge’s decision were, in the circumstances, correct. It would be futile to grant the extension of time sought.
In the result, the application for an extension of time will be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 23 December 2014
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