Aryal v Minister for Immigration and Border Protection
[2014] FCA 460
•8 May 2014
FEDERAL COURT OF AUSTRALIA
Aryal v Minister for Immigration and Border Protection [2014] FCA 460
Citation:
Appeal from:
Aryal v Minister for Immigration and Border Protection [2014] FCA 460
Application for extension of time: Aryal v Minister for Immigration & Anor [2012] FMCA 1014
Parties: KANCHAN ARYAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 311 of 2014 Judge: GRIFFITHS J Date of judgment: 8 May 2014 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal pursuant to r 35.14 of Federal Court Rules 2011 (Cth)
MIGRATION – incorrect box ticked on application form for visa under Regional Sponsored Migration Scheme (RSMS) Class AN, Subclass 119 – subsequent application for a student visa denied – recommendations that matter is appropriate for Ministerial consideration under s 351
Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1), 24(1A)
Federal Court Rules 2011 (Cth) rr 1.39, 35.13, 35.14
Federal Magistrates Court Rules 2001 (Cth)
Migration Act1958 (Cth)Cases cited: Aryal v Minister for Immigration & Anor [2012] FMCA 1014
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397Date of hearing: 8 May 2014 Date of last submissions: 30 April 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 34 Solicitor for the Applicant: The applicant appeared in person. Solicitor for the First Respondent: DLA Piper Australia
Solicitor for the Second Respondent: There was no appearance for the second respondent.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 311 of 2014
BETWEEN: KANCHAN ARYAL
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
8 MAY 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time to seek leave to appeal is dismissed.
2.The applicant must pay the first respondent’s costs, as agreed or assessed.
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 311 of 2014
BETWEEN: KANCHAN ARYAL
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRIFFITHS J
DATE:
8 MAY 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application pursuant to r 35.14 of the Federal Court Rules 2011 (Cth) (the FCRs) for an extension of time within which to seek leave to appeal from the judgment and orders of the Federal Circuit Court delivered ex tempore on 2 November 2012. Pursuant to r 44.12(1)(a) of the then Federal Magistrates Court Rules 2001 (Cth) (FCC Rules) the primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (MRT) dated 10 July 2012.
The requirement for leave arises under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). Under s 24(1)(d) of the Federal Court Act, the Federal Court relevantly has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, such as the Migration Act1958 (Cth) (the Act). Pursuant to s 24(1A) of the Federal Court Act, an appeal shall not be brought from such a judgment that is an interlocutory judgment unless the Federal Court or a Judge of the Federal Court gives leave to appeal.
The applicant also requires an extension of time because the application for leave to appeal was lodged outside the 14 day time limit set by r 35.13 of the FCRs.
The applicant represented himself in the proceedings below and also before me.
Background and the decision of the MRT
In essence, when the applicant first arrived in Australia on 8 October 2006, he held a Subclass 572 Vocational Education and Training Sector visa. He was subsequently granted a Subclass 485 (Skilled - Graduate) visa, which ceased to have effect on 2 December 2011. On 28 November 2011 (i.e. prior to his Subclass 485 visa expiring), the applicant applied for a visa under the Regional Sponsored Migration Scheme (RSMS), Class AN, Subclass 119 in relation to a position as a chef at a Darwin restaurant (further details will be provided below). The applicant was apparently contacted by a Departmental officer shortly thereafter and informed that his application was invalid because he had ticked the offshore option box on his application, instead of the onshore option. It appears that the applicant then contacted another Departmental officer on or about 11 January 2012 to talk about his case. That officer confirmed that the Department’s records revealed that he had ticked the offshore option and not the onshore option. The applicant said that that was a mistake and that he meant to tick the onshore option. He was advised that he could withdraw his application for offshore and lodge an onshore application, but that the fee would be forfeited and that, because he was unlawful, he may not meet certain criteria for the visa. He was advised that it was in his best interests to abide by the conditions of his bridging visa and to depart Australia by the specified date.
Despite the conversations he had with the two Departmental officers concerning his employer nomination visa, it appears that it was not until 26 September 2012 that the applicant was formally notified by the Department by letter that his application under the RSMS could not be approved because the nomination from the prospective employer had been refused. No reason was given in the letter for that refusal.
On 17 January 2012, the applicant lodged an application for a student visa with the Department in Sydney. On his application form, the applicant drew attention to his application under the Employer Nomination scheme and said that his application for “a RSMS 119” was pending. In view of the matters described above, it appears that the applicant correctly described his application under the RSMS as pending. He also stated in his application form that he held a bridging visa, which was said to have been granted to him in Darwin on 10 January 2012.
The student visa application was initially refused by the Minister’s delegate on 23 January 2012 on the basis that he did not satisfy the relevant criteria because his student visa application was not lodged within 28 days of the cessation of the last substantive visa held by him. The delegate also found that the applicant did not meet the criteria for other subclasses of student visas. The applicant was notified of this decision. However, by letter dated 23 February 2012 he was further advised by the Department that it considered that its earlier notification was incorrect and a fresh notification was given to him.
The applicant sought to have the delegate’s decision reviewed by the MRT. The MRT rejected his review on similar grounds to that relied upon by the delegate relating to the applicant’s failure to apply for a student visa within 28 days after his last substantive visa ceasing to be in effect, and it also found that he did not meet other relevant requirements.
Some of the further background to this matter is summarised at [2]-[6] of his Honour's judgment below. However, the primary judge made no direct reference to certain matters concerning the applicant’s interaction with the Department, which matters underpin the recommendation made by both the primary judge and the MRT for the applicant’s case to be referred to the Minister under s 351 of the Act. Those matters are generally described by the MRT in [14] of its reasons for decision. They may be summarised as follows (drawing also on other documents in the Court Book below).
After the applicant came to Australia in 2006 to study hospitality, he completed his diploma in September 2007 and then subsequently achieved an advanced diploma of hospitality in November 2008. In April 2009, he successfully applied for a Subclass 485 visa (which was granted in 2010). He was working at that time as a full time cook in Sydney and was interested in applying for permanent residence. He decided to travel to Darwin because of the work opportunities there. He began working at the Charcoal Oven Restaurant Lounge in Darwin. After a few months, the restaurant owner wanted to sponsor him for that restaurant. The applicant approached the Department’s Darwin office to obtain the relevant documentation for such a visa application. The applicant says that he was unable to find a migration agent in Darwin to assist him so he dealt with his case himself. His Subclass 485 visa was due to expire on 2 December 2011 and, as noted above, on 28 November 2011 he applied under the RSMS for a visa, which involved nomination by an employer. Some days later he was contacted by a Departmental officer who told him that he was an unlawful non-citizen because on his application form for an RSMS visa he had ticked the “offshore option” and should have ticked the “onshore option”. As further noted above, the applicant then approached another Departmental officer on 11 January 2012 to discuss his case, when it was confirmed that he had ticked the offshore option and he was given some advice about his immigration options. The Departmental officer’s file note of her conversation with the applicant on 11 January 2012 records that the applicant repeatedly said that he had made a mistake on his application form and meant to tick the onshore option.
The applicant returned to Sydney with the intention of continuing his studies. He was offered a place at McClaren Business College to study an Advanced Diploma of Accounting. He lodged his application for a student visa on 17 January 2012 in Sydney. He says that when he lodged that application he was unaware of the requirement relating to the need to lodge such an application within 28 days of the expiration of his last substantive visa. As noted above, it appears that the applicant was not notified of his unsuccessful application under the RSMS until 26 September 2012, which postdates the MRT’s decision concerning his student visa application.
Proceedings before the Federal Circuit Court
By application filed on 16 August 2012, the applicant sought judicial review of the MRT's decision. The applicant required an extension of time for that application pursuant to s 477(2) of the Act, which was granted by consent. That application raised the following six grounds (which are set out verbatim):
1.Have not done any unlawful task in Australia.
2.Wish to continue my occupation in Australia.
3.Have completed all the criteria that make me eligible to remain in Australia.
[4].The mistakes were honestly done, which ceased my ability to remain in Australia.
[5].I am an honest and hardworking cook.
[6].I have fulfilled all the criteria to be a commercial cook and to work in Australia.
The Federal Circuit Court convened a show cause hearing, pursuant to r 44.12 of the FCC Rules, on 2 November 2012.
The primary judge found that the applicant had failed to point to any arguable case of jurisdictional error by the MRT and, even if he had done so, there would be no utility in a final hearing. Accordingly, the application was dismissed pursuant to r 44.12(1)(a) of the FCC Rules.
His Honour found that all of the applicant's grounds appeared to go to the merits of the visa application, despite having provided the applicant with additional time to file an amended application.
His Honour found that there would be no utility in a final hearing because it was plain that the applicant could not succeed on a rehearing of the matter by the MRT. This was despite the fact that the Minister acknowledged in the proceedings below that the MRT’s approach to the consideration of various elements of the relevant visa criteria may not have been correct. But the primary judge also accepted the Minister’s submission that there was no possibility that the applicant could satisfy the relevant criteria in any event.
Significantly, in [14] of his Honour’s reasons for judgment, the primary judge also referred to and endorsed the reference made by the MRT in its decision that the case was a “hard one” and should be referred to the Minister. The MRT had made a similar recommendation in [24] and [25] of its reasons for decision, on the basis that the applicant did lodge a visa application just prior to his Subclass 485 visa expiring and that he “did his best to abide by the requirements and did not seem to understand what was happening in relation to the Employer Nomination application”. The MRT added that it considered that the applicant’s case involved “unique or exceptional circumstances, including circumstances that the legislation does not anticipate in circumstances where the application or relevant legislation leads to unfair or unreasonable results”, which warranted the case being referred to the Minister.
Despite these recommendations by both the MRT and the primary judge. I was told from the Bar Table by Ms Hillary, who appeared for the Minister, that the matter of consideration under s 351 of the Act was before the Minister at the time of the hearing in the Federal Circuit Court and that it was subsequently decided not to act under that provision. The applicant said from the Bar Table that he had never been notified of that fact.
Application to the Federal Court
By application filed on 24 March 2014 the applicant seeks an extension of time within which to apply for leave to appeal against the judgment and orders of the Court below. There was no contest that the decision to dismiss the judicial review application is interlocutory.
The Minister opposes the grant of an extension of time and the grant of leave to appeal on the basis that the substantive appeal is without merit.
Pursuant to r 35.13(a) of the FCRs, a notice of appeal must be filed within 14 days of the date on which the judgment appealed from was pronounced or the order was made. In the present case the last day on which a notice of appeal could be filed within time was 19 November 2012. The application for an extension of time was filed on 24 March 2014 and, therefore, the applicant requires an extension of time of approximately 1 year and 4 months.
The stated grounds for seeking an extension of time and leave to appeal are as follows:
1.Jurisdictional error: DIBP and Federal Magistrate Court decision (sic) was not made on the factual evidence provided at the time of application lodgement.
COE from College was ignored, my valid student visa was refused.
2.DIBP did not exercise its power properly. I applied a valid application to DIBP to study further but it refused my application.
3.DIBP and Federal Magistrate Court (sic) both failed to provide me the opportunity to remain lawfully in Australia.
The applicant also filed an affidavit in support of his application for an extension of time and leave to appeal. He proffered no explanation in that affidavit for the delay but in response to questions from the Court he said that he did not have any advice at the time as to his options and that it was only recently that some friends urged him to bring these proceedings.
Annexed to his affidavit is a draft notice of appeal, which sets out the following proposed grounds of appeal:
1.Federal Magistrates Court and DIBP decision was not based on the factual evidence provided.
2.Court and DIBP did not exercise their power to allow me to study and remain lawfully in Australia.
The Court has a discretion under r 1.39 of the FCRs to extend the time to file a notice of appeal regardless of whether time has expired before the application is made. In determining whether or not to extend time, the following considerations are relevant:
(a)whether the Court is satisfied that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay;
(b)any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; and
(c)the merits of the proposed appeal.
First, as noted above the applicant provided no explanation for the delay, either in the application for an extension of time and leave to appeal, or in the attached affidavit. The applicant’s explanation, such as it was, for the delay only emerged at the hearing.
Secondly, the Minister pointed to no prejudice should the extension of time be granted.
Thirdly, as the Minister points out, it is well established that an extension of time, even for a short period, may be refused if the appeal has no prospect of success. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court held that leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.
I accept the Minister’s submission that the applicant has not identified any appellable error in the reasoning or conclusions of the primary judge. The proposed first ground of appeal is that the decisions of both the court below and the Department “were not based on the factual evidence provided”. It is sufficient to focus on this proposed ground of appeal as it relates to the decision of the Court below. The applicant was unable to explain why that decision was not based on the evidence before the primary judge. The applicant is without doubt aggrieved by the decision but I can see no basis for his claim that the decision was unsupported by the evidence below. This proposed ground of appeal is doomed to fail.
The second proposed ground of appeal does not advance matters any further. It simply asserts that the primary judge did not exercise his power to allow the applicant to study and remain lawfully in Australia. The primary judge had no such power. At best, if jurisdictional error had been established, his Honour had a discretion to set aside the MRT’s decision and remit it for reconsideration according to law. The Court below had no power to grant the applicant a visa. Not only was no jurisdictional error found but, in any event, the primary judge explained why there was no utility in pursuing the matter because the applicant was unable to meet the specified criteria. The second ground of appeal is also doomed to fail.
Conclusion
For these reasons I make the orders set out above.
As noted above, both the MRT and the primary judge recommended that the applicant’s case be referred to the Minister under s 351 of the Act. In circumstances where it appears that the applicant had never been notified of any decision one way or the other under s 351, it is perhaps understandable why he has belatedly sought to agitate his case in this Court.
On the basis of the available material, the Court can well appreciate why both the primary judge and the MRT viewed the applicant’s case as worthy of consideration under s 351 of the Act. There is, of course, no obligation on the Minister to exercise his power under that provision and the Court can do little more than add its weight to the previous calls for the applicant’s case to be considered under that provision. On the basis of the material before the Court, it appears that the applicant acted reasonably in lodging his RSMS visa application before his previous substantive visa expired and he made an honest mistake in ticking the wrong box on the application form. He was not formally notified that his application had been rejected until 26 September 2012, during which time he applied for the student visa which is the subject of the proceeding. It is understandable why the applicant considers his current plight to be unfair. It is to be hoped that further consideration could be given to his case under s 351 of the Act.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 9 May 2014
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