Bhandari v Minister for Immigration
[2015] FCCA 2297
•25 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHANDARI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2297 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of an extension of time for the filing of the judicial review application. |
| Legislation: Migration Act 1958 (Cth), ss.116, 119, 140, 477 Migration Regulations 1994 (Cth) |
| ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142 Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs & Environment (1984) 3 FCR 344 Mazumdar v Minister for Immigration & Anor [2012] FMCA 1170 SZTES v Minister for Immigration [2015] FCA 719 Yu v Minister for Immigration (2009) 236 FLR 251 |
| First Applicant: | SHANTI RAM BHANDARI |
| Second Applicant: | YESHODA SILWAL BHANDARI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2469 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2015 |
REPRESENTATION
The Applicants appeared in person
| Solicitors for the Respondents: | Mr L Gell of Clayton Utz |
INTERLOCUTORY ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time be refused.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2469 of 2014
| SHANTI RAM BHANDARI |
First Applicant
YESHODA SILWAL BHANDARI
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 3 September 2014 seeking judicial review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 24 January 2014. The Tribunal affirmed a decision of a delegate of the Minister to cancel the student visa of the first applicant, Mr Bhandari. The visa of the second applicant, Mrs Bhandari, was also cancelled as a necessary consequence of that decision.
Background facts relating to the matter are conveniently set out in the Minister’s outline of submissions filed on 18 August 2015.
Mr Bhandari is a citizen of Nepal and arrived in Australia in December 2007 as the holder of a student visa.
On 4 June 2013, Mr Bhandari received a notice of intention to consider cancellation of his student visa (NOICC) sent pursuant to s.116 of the Migration Act 1958 (Cth) (Migration Act)[1]. The NOICC related to his last held student visa, granted on 10 May 2012.
[1] Court Book (CB) 5-9.
On 9 July 2013, the Minister’s delegate cancelled Mr Bhandari’s student visa in accordance with s.116(1)(b) of the Migration Act, on the basis that he had not complied with condition 8202 of his visa[2]. Mrs Bhandari, as a member of his family unit, had her visa automatically cancelled by operation of s.140(1) of the Migration Act.
[2] CB 30-35.
On 11 July 2013, Mr Bhandari applied to the Tribunal for review of the delegate's decision[3].
[3] CB 36-46.
On 24 January 2014, the Tribunal affirmed the delegate's decision to cancel Mr Bhandari's student visa[4].
[4] CB 101-106.
On 3 September 2014, Mr Bhandari applied for judicial review of the Tribunal's decision.
The Minister’s submissions also deal with the relevant law governing the decision of the Tribunal.
The Minister may cancel a visa if he is satisfied that its holder has not complied with a condition of the visa[5].
[5] Migration Act, s.116(1)(b).
Mr Bhandari’s student visa was subject to condition 8202[6]. Condition 8202 is found at Item 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations). Subclause (1) of condition 8202 requires the holder of the visa to meet the requirements of both subclauses (2) and (3). Subclause (2) requires the visa holder to be enrolled in a registered course of study. Subclause (3) provides that the holder meets the requirements of that subclause unless the education provider has issued a certificate relating to the holder not achieving satisfactory course progress or attendance.
[6] Migration Regulations 1994 (Cth), clause 572.611.
Subclause (2) requires the visa holder to remain enrolled in a registered course at all times while the visa is in effect[7].
[7] Yu v Minister for Immigration (2009) 236 FLR 251 at [35]; Mazumdar v Minister for Immigration & Anor [2012] FMCA 1170 (Mazumdar) at [7].
The Tribunal found on the evidence before it that Mr Bhandari had not been enrolled in a registered course since 31 July 2012. This was confirmed by him at the Tribunal hearing[8].
[8] Tribunal Decision Record (DR) at [12]; CB 103.
The Tribunal considered whether it should exercise its discretion to cancel the visa, taking into account all of the relevant circumstances. The Tribunal concluded that the visa should be cancelled because there were no circumstances which outweighed the grounds for cancelling the visa. The Tribunal reached this conclusion for the following reasons:
a)it did not accept that Mr Bhandari was unaware that his non-enrolment would result in cancellation of his visa;
b)it did not accept that Mr Bhandari's alleged illness incapacitated him to the extent that he could not remain enrolled in his registered course. Nor did the Tribunal accept that his alleged illness prevented him from consulting the Minister’s Department or his education provider to manage his enrolment issues. There was insufficient medical or independent evidence to support the applicant's claims. Further, the fact that Mr Bhandari worked approximately 20 hours a week during the whole period of his stay in Australia supported the Tribunal's finding that his alleged illness did not affect his ability to be enrolled; and
c)it did not accept that Mr Bhandari was unaware of possible deferment options.
The judicial review application was not filed within the 35 day period prescribed by s.477(1) of the Migration Act. The applicants seek an extension of time pursuant to s.477(2). I gave directions in this matter on 15 October 2014. I gave the applicants the opportunity to file and serve an amended application and additional evidence. The matter was listed today for a hearing on the question of an extension of time. The matter was also listed for a show cause hearing if considered appropriate. I have proceeded on the basis that the question of an extension of time must be considered first.
The applicants continue to rely upon their judicial review application filed on 3 September 2014. The grounds in support of an extension of time in that application are:
1. MRT & DIBP decision was not based on the fact presented at the time of application lodgement and interview.
2. MRT & DIBP failed to consider my request to study further and remain legal in Australia.
3. I could not apply to this Court on time as mistakenly I was advised to apply for ministerial Intervention.
The application was accompanied by a short affidavit, which I received as a submission. That affidavit relevantly states that the decisions of the Tribunal and the Department were not based on the facts presented. The affidavit further states that the Tribunal and the Department failed to consider Mr Bhandari’s request to study further and remain in Australia.
If an extension of time were granted, the applicants would assert two grounds of error by the Tribunal:
1. My student visa was cancelled by DIBP without due process. It was cancelled when I wanted to keep studying in Australia.
2. My application to MRT was refused without proper consideration. My strong desire to commence study was ignored by MRT. It didn't exercise its power to allow me to study in Australia.
For the purposes of considering the request for an extension of time, I received as evidence the court book filed on 5 November 2014. I also received two affidavits by Mr Bhandari made on 9 December 2014 and 6 August 2015. Mr Bhandari also tendered a bundle of medical documents, which I received as exhibit A1.
I accept from those documents that, following the Tribunal decision, Mr and Mrs Bhandari, on advice, chose to seek ministerial intervention. That request was unsuccessful. The documents also establish that Mr Bhandari continued to periodically seek medical attention in 2014, although by 14 October 2014 he was certified as fit to study. It appears that at that time, Mr Bhandari took steps to enrol in a further course of study at Hamro Institute of Business Technology.
In my opinion, it is not necessary in the interests of the administration of justice to grant an extension of time in this case. I accept the Minister’s submissions concerning the relevant principles to be applied.
An extension of time in which to institute proceedings in the Federal Circuit Court may only be granted if the Court is “satisfied that it is necessary in the interests of the administration of justice to make the order”[9].
[9] Migration Act, s.477(2)(b).
The factors considered by Wilcox J in Hunter Valley Development Pty Limited v Cohen, Minister for Home Affairs & Environment[10] apply in determining whether an extension of time should be granted[11]. The factors that the Court will consider in determining whether it is in the interests of the administration of justice to extend time pursuant to s.477(2) of the Migration Act can be summarised as follows:
a)the extent of the delay and any explanation for the delay;
b)the merits of the substantive application;
c)any prejudice to the respondent;
d)the impact on the applicant; and
e)the interests of the public at large.
[10] (1984) 3 FCR 344 (Hunter Valley).
[11] SZMNO v Minister for Immigration [2009] FCA 797; SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [9].
The first two of these considerations are the “critical considerations”[12].
[12] SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11].
In SZTES v Minister for Immigration[13], Wigney J considered the nature of the power to extend time under s.477(2) and the appropriate procedure for dealing with an application to extend time where that application is made at a final hearing on the merits. His Honour outlined the following principles to be applied:
a)section 477(2)(b) imposes an express pre-condition to the exercise of the discretion in favour of an applicant, such that the extension of time must be necessary in the interests of the administration of justice. This statutory pre-condition must be demonstrated to the satisfaction of this Court and it is therefore not relevant to whether the Minister opposes or consents to an extension application in a particular case;
b)section 477(2) does not define or confine the matters to which the Court should have regard in considering the administration of justice[14];
c)there are some factors that are ordinarily taken into account, but are not exhaustive. Those factors include: whether there has been a reasonable and adequate explanation for the delay; whether there is any prejudice to the Minister; and whether the substance of the applicant’s case is sufficiently arguable to justify the extension of time[15];
d)in considering whether a case is reasonably arguable, it is generally inappropriate to investigate fully the merits of the substantive case. However, obvious strengths or weaknesses may weigh for or against an extension of time[16]; and
e)it is doubtful that the Court is bound to take into account the absence of appellate review (in respect of a refusal to extend time pursuant to s.477) in arriving at a determination of whether to exercise the discretion in the applicant’s favour under s.477(2) of the Migration Act[17].
[13] [2015] FCA 719.
[14] Hickey v Australian Communications Commission (1983) 72 FLR 291; Seiler v Minister for Immigration (1994) 48 FCR 83.
[15] per Foster J in SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252.
[16] ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142.
[17] per Foster J in SZRIQ at [69].
Wigney J also commented that, in cases where an extension application is heard on the same day as the substantive application, “and where there are properly articulated grounds that are at least worthy of debate, the better course would ordinarily be for the Federal Circuit Court to grant an extension and then deal with the merits of the substantive application”[18]. However, it is also well established that the proper course is to refuse an extension application where the substantive application has insufficient prospects of success[19].
[18] at [99].
[19] see Hunter Valley; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [43]-[48]; SZQBT v Minister for Immigration [2011] FCA 1281 and associated cases.
In the present case, the delay in coming to court exceeds six months. The explanation offered for that delay is that Mr and Mrs Bhandari, on advice, sought Ministerial intervention, which was unsuccessful. As is pointed out at [24] of the Minister’s submission, there is authority that that pursuit of Ministerial intervention is not an adequate explanation for delaying coming to court:
… The applicant has offered two explanations for the delay. The first relates to a request for Ministerial Intervention made by the applicant under s.417 of the Act. It has been recognised in a number of cases that Ministerial Intervention is not an adequate explanation for delay: Vu v MIAC [2008] FCAFC 59 at [29] per Jessup J; see also Crennan J in Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 at 24. Furthermore, there is authority to suggest that an application for Ministerial Intervention is indicative of an acceptance by the applicant of the correctness of the Tribunal decision or, at the very least, a lack of intent to challenge the decision any further: see Daniel v MIMIA [2004] FCA 21; Applicant A2 v MIMIA [2003] FCA 476; Applicant M29 of 2001 v MIMIA [2003] FCA 1266; AZACG v MIAC [2013] FCCA 1364. In any case, there was nothing to prevent the applicant from pursing his application for review while also seeking Ministerial Intervention: see Applicant A2 v MIMIA [2003] FCA 476; Applicant M29 of 2001 v MIMIA [2003] FCA 1266 at [12].
Mr Bhandari also stated in oral submissions that he was depressed following the Tribunal decision. However, that did not prevent him from pursuing Ministerial intervention. Neither should it, in my opinion, have prevented him from completing and filing a judicial review application within time. I accept that Mr Bhandari between 2011 and 2014 has periodically sought treatment for abdominal pain. The medical evidence does not disclose any clear diagnosis. I am not persuaded that there was a medical impediment preventing Mr Bhandari from pursuing judicial review.
I have considered whether the proposed grounds of review justify an extension of time. In my view, they do not. Indeed, were an extension of time to be granted, the judicial review application would almost certainly fail on its merits. Those issues are discussed in the Minster’s submissions with which I agree.
Ground 1
Ground 1 is unparticularised. However, to the extent that this ground alleges a breach of procedural fairness by the Department, the claim that the visa was cancelled by the Department without “due process” was not made before the Tribunal. In any event, the Minister submits that the Department complied with the requirements of the Migration Act.
In particular, the NOICC complied with the requirements of s.119 of the Migration Act, which prescribes the manner in which the Minister must notify the holder of the visa that the Minister is considering cancelling the visa under s.116 of the Migration Act. The Minister notified Mr Bhandari in accordance with s.119 of the Migration Act that there appeared to be grounds for cancelling the visa and:
a)gave particulars of those grounds and of the information because of which the grounds appeared to exist; and
b)invited the holder to show within a specified time that those grounds did not exist or there was a reason why it should not be cancelled.
Mr Bhandari provided his response on 8 June 2013, which was considered and rejected by the delegate. Accordingly, this ground is without merit.
Ground 2
Ground 2 makes the unparticularised claim that the Tribunal made its decision without “proper consideration”.Mr Bhandari does not specify what the Tribunal considered improperly or failed to consider.
The Tribunal took into account the written material provided by Mr Bhandari and his representative, Mr Bhandari’s oral evidence and that of his wife and their representative[20]. Accordingly, the Minister submits that the Tribunal properly exercised its discretionary power to cancel the visa in accordance with s.116 of the Migration Act.
[20] CB 103-105 at [15]-[26].
The balance of Ground 2 expresses mere disagreement with the Tribunal's decision and thus seeks to impermissibly cavil with its merits. Ground 2 has no arguable prospect of success.
I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
I will direct that the name of the second respondent be amended to the Administrative Appeals Tribunal.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in the sum of $3,326. Mr Bhandari made submissions directed to humanitarian considerations that did not specifically address the issue of costs. I accept that there are humanitarian considerations in this case. Mr Bhandari accepts that he made a mistake in allowing his enrolment to lapse. He was also concerned that he made the wrong decision in pursuing Ministerial intervention.
Mr and Mrs Bhandari wish to pursue further studies in Australia, and are concerned at the prospect of having to return to Nepal soon after the devastating earthquakes of earlier this year. Those are matters that could be taken into account by the Minister’s Department in considering whether any further visa should be granted to Mr and Mrs Bhandari. They are, however, beyond the scope of this proceeding.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 August 2015
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