Aslam v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Aslam v Minister for Home Affairs [2019] FCA 383

Appeal from: Application for extension of time: Aslam v Minister for Immigration [2018] FCCA 1764
File number: NSD 864 of 2018
Judge: MARKOVIC J
Date of judgment: 18 March 2019
Legislation:

Migration Act 1958 (Cth) s 362B

Migration Regulations 1994 (Cth) cl 572.223

Cases cited:

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

Date of hearing: 18 March 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 40
Solicitor for the Applicant: Mr M Newman
Solicitor for the First Respondent: Ms K Morris of Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 864 of 2018
BETWEEN:

BILAL ASLAM

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

18 MARCH 2019

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 25 May 2018 be dismissed.

2.The applicant pay the first respondent’s costs of the application as agreed or taxed.

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


REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

  1. This is an application for an extension of time to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 16 April 2018 refusing the applicant leave to amend his application for judicial review in that court and dismissing the applicant’s application for review of a decision of the second respondent (Tribunal), with costs: see Aslam v Minister for Immigration [2018] FCCA 1764. The Tribunal had affirmed the decision of a delegate of the first respondent, now the Minister for Home Affairs (Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (Visa). 

    BACKGROUND

  2. The following background, which I do not understand to be in issue between the parties, is extracted from the Minister’s submissions. 

  3. On 19 May 2016 the applicant applied for the Visa to enable him to complete an Advanced Diploma of Business in Australia. 

  4. On 18 August 2016 a delegate of the Minister refused to grant the applicant the Visa under s 65 of the Migration Act 1958 (Cth) (Act). 

  5. On 7 September 2016 the applicant applied to the Tribunal for review of the delegate’s decision. 

  6. On 5 December 2016 the Tribunal sent the applicant a letter advising that it was unable to resolve the matter favourably on the papers and inviting him to attend a hearing scheduled for 21 February 2017. 

  7. On 9 February 2017 the applicant sought an adjournment from the Tribunal on the basis that he wished to visit his mother in Pakistan who was suffering from late stage ovarian cancer. 

  8. On…

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Details
Case
[2019] FCA 383
Decision Date

CaseChat Overview and Summary

In the matter of Aslam v Minister for Home Affairs, the Federal Circuit Court considered an application for judicial review of a decision made by the Tribunal under the Migration Act 1958 (Cth). The applicant, who had not appeared at a scheduled hearing, sought to challenge the Tribunal's decision affirming a delegate's refusal to grant a visa on the basis that he had not provided an explanation for the value of the courses he intended to study. The applicant raised two grounds of review in the Federal Circuit Court, arguing that the Tribunal had procedurally erred by not considering a medical certificate and by not clearly stating the breach of a particular clause of the Migration Regulations.

The court addressed the principles relevant to granting leave to raise new grounds of appeal, noting that such leave should only be granted if it is in the interests of justice and if there is no prejudice to the respondent. The court found that the proposed ground of appeal had no merit and that there was no justification for permitting it to be raised for the first time before the Court.

In determining whether to grant an extension of time for the applicant to appeal the decision, the court considered the explanation for the delay and the issue of prejudice to the Minister. The applicant had contended that he could not file a notice of appeal in time because the primary judge's reasons had not been published, and his mother's illness had caused a delay in obtaining instructions. However, the court noted that the applicant's legal representative was present at the judgment, and the applicant was aware of the reasons for decision from that date. The Minister did not point to any prejudice that would result from granting an extension of time.

The court dismissed the application for an extension of time and ordered the applicant to pay the Minister's costs of the application.

Orders

Orders of the court

1. The application for an extension of time filed on 25 May 2018 be dismissed.

2. The applicant pay the first respondent’s costs of the application as agreed or taxed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

At the hearing on 8 March 2017, the applicant did not appear before the Tribunal. At 2.00 pm on 8 March 2017 the applicant contacted the Tribunal to provide a copy of a medical certificate. TRIBUNAL DECISION The Tribunal proceeded in the applicant’s absence without taking any further action to allow the applicant to appear before it, and on 13 March 2017 it affirmed the delegate’s decision. I note that in so proceeding it referred to s 426A of the Act. That section, which permits the tribunal to proceed to make a decision on a review without taking any further action to allow or enable an applicant to appear before it, in circumstances where an applicant has been invited to appear in accordance with the provisions of the Act but does not do so, applies to Pt 7 reviewable decisions. The equivalent provision, which applies to the delegate’s decision in this case, being a Pt 5 reviewable decision, is s 362B of the Act which is in relevantly identical terms to s 426A. The Tribunal’s reference to s 426A of the Act, to which no issue was or is raised by the applicant, was clearly a typographical error that would not constitute jurisdictional error: see S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35]. The Tribunal noted that the delegate had refused to grant the Visa because the applicant had not provided an explanation as to the value of the courses he chose to study and therefore did not satisfy the requirements of Sch 2 cl 572.223 of the Migration Regulations 1994 (Cth) (Regulations). It further noted that, having regard to the applicant’s current proposed course of study, the relevant Visa subclass was subclass 572. The decision criterion applicable to subclass 572 is in cl 572.223 of the Regulations, however the Tribunal identified that the issue was whether the applicant met the time of decision criterion in cl 573.223, rather than cl 572.223, and set out the requirements of the former clause. Given that the requirements in cl 572.223(1)(a) are the same as those in cl 573.223(1)(a) this error is of no consequence. The Tribunal also referred to Direction No. 53 made under s 499 of the Act. The Tribunal noted that the applicant had not submitted any information since the delegate’s decision to explain the value of the courses he had chosen and that in the absence of such information it could not determine and had no information before it to assess whether, in the particular circumstances of the applicant, the courses he had chosen had any value to him at all. On that basis and having considered the applicant’s circumstances, immigration history, and other matters it considered relevant, the Tribunal concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily. FEDERAL CIRCUIT COURT PROCEEDING On 13 April 2017 the applicant lodged an application for judicial review with the Federal Circuit Court. In that application the applicant raised two grounds of review as follows:1.the tribunal erred in law and in its jurisdiction when it failed to exercise procedural fairness by overriding a medical certificate declaring that the applicant was unwell on the day of the hearing; and2.the tribunal erred in law and in its jurisdiction when it referred to cl 573.223(1)(a) but did not state clearly what breach the applicant was found to have made.

Ratio Decidendi

Legal Principle Established

It is also necessary to set out the principles applicable to the Court’s exercise of its discretion to grant leave to raise a new ground on appeal. Those principles are also well established. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] a Full Court of this court relevantly said:46In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].47In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.48The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.Consideration I turn then to consider whether an extension of time should be granted to the applicant to appeal the decision of the primary judge. First, insofar as an explanation for the delay is concerned, Mr Newman indicated in his affidavit that the applicant was unable to file a notice of appeal in time because the primary judge gave an ex tempore judgment and, as at the date of swearing the affidavit, his Honour’s reasons had not been published such that the applicant had been hampered in formulating an appeal. Mr Newman also deposed to the fact that the applicant’s mother had cancer which led to a delay in obtaining instructions which had only been received on 21 May 2018. While the Minister indicated that the applicant had provided a cogent explanation for the delay, I note that the applicant’s legal representative was in court when judgment was pronounced on 16 April 2018 such that the applicant was aware of the primary judge’s reasons for decision. He could have filed an appeal from that date. The next question is that of prejudice. The Minister does not point to any relevant prejudice should an extension of time be granted.