Bogati v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 220
•21 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bogati v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 220
File number(s): SYG 1355 of 2022 Judgment of: JUDGE CAMERON Date of judgment: 21 February 2024 Catchwords: MIGRATION – Application for extension of time to bring proceeding – relevant considerations.
MIGRATION – Student (Temporary)(Class TU) Subclass 500 (Student) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision.
Legislation: Migration Act 1958 (Cth) ss 5, 477
Migration Regulations 1994 (Cth) cl 500 sch 2, PIC 4020 sch 2
Cases cited: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Number of paragraphs: 24 Date of hearing: 21 February 2024 Place: Sydney Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: MinterEllison Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1355 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANMIRA BOGATI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
21 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for an extension of time within which to bring this proceeding be refused.
2.The proceeding be dismissed.
3.The applicant pay the first respondent's costs fixed in the amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant, Ms Bogati, is a citizen of Nepal who arrived in Australia in 2019. On 12 October 2019 she applied to the Department of Home Affairs (Department) for a class TU subclass 500 student visa. On 10 February 2020 the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision. She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The applicant’s application for judicial review was filed outside the 35 day limitation period prescribed by s.477 of the Migration Act 1958 (Cth) (Act) and she has applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the application for an extension of time will be refused. Consequently, the proceeding will be dismissed.
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time of the Tribunal’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)
(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 – the date of the written decision under that subsection; or
(b)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 – the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or
(c)in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 – the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or
(ca)in the case of a migration decision made by the Immigration Assessment Authority – the date of the written statement under subsection 473EA(1); or
…
Because the Tribunal’s decision was dated 22 December 2021, the applicant had until 27 January 2022 to commence this proceeding. The application was not filed until 14 September 2022 and so it was brought approximately eight months out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for her delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. The assessment of the merits of the application for constitutional writs need not be limited to an impressionistic appreciation: Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604.
I note that the Minister has stated in his written submissions that he would not suffer substantial prejudice if time were to be extended, although the delay itself would naturally cause some small prejudice.
Satisfactory explanation for delay
In her application commencing this proceeding the applicant stated that:
1. I did not know about 35 days to lodge an application to court after AAT decision. My previous Migration Agent did not properly inform about this date. In fact, he even did not send me the AAT decision. After few months I was very concerned about my application and called AAT. They informed me that the final decision has been made already and they provided me the decision.
2. After getting decision record from AAT, I started looking for a Lawyer to assist to lodge application at Federal Circuit court. I quickly realised that the fee they charge is too high. As I do not have work right, I have little money to spend. When I found that I am not in position to hire a lawyer, I started to know about the application process and got late to lodge this application.
3. So this delay happened due to little knowledge about the application process.
The applicant adopted those paragraphs in her evidence to the Court today. Her oral evidence today was to the effect that it was not until about April 2022 that she discovered from the solicitor who had acted for her at the Tribunal hearing that she could take the matter beyond the Tribunal stage.
I appreciate that the Minister argues that having received the Tribunal decision in about April 2022, as appears to have been the case, the applicant ought to have been aware of the 35 day time limit, but I am not persuaded that that is necessarily the case. The applicant’s evidence was that in around July 2022 she was told by her solicitor that she essentially had two options following the Tribunal’s decision. The first was to return to Nepal and the second was to pursue judicial review. She took the latter course. I also note that the applicant states that in the latter part of the relevant period, she no longer had a solicitor and was short of funds. The applicant’s evidence also was that the delay had largely been caused by her solicitors failing to respond to inquiries and that otherwise there had been no reason to delay the application.
An eight month period is not an insignificant period in the context of s.477 of the Act, but taking all things into account, I am persuaded that the applicant has provided a satisfactory explanation for the late commencement of the proceeding.
Merits of substantive application
In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. I have concluded that the present applicant has not done that.
Legislation relevant to substantive application
Section 5(1) of the Act relevantly states:
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
Clause 500 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of sub-class 500 student visas:
500.211
One of the following applies:
(4020)the applicant is enrolled in a course of study;
…
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
…
500.217
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
…
Public interest criterion 4020 is found in sch.4 of the Regulations and relevantly states:
4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Background Facts
In the Minister’s written submissions dated 7 February 2024, Ms Bogati’s relevant migration history was summarised in the following terms which I adopt:
2. On 12 October 2019, the applicant lodged an application for a Student (Class TU) (subclass 500) visa (student visa). Relevantly, in response to the question 'Give details of the applicant's employment and unemployment history since leaving school/college/university', the applicant stated 'student'. When asked to give details about her family members, the applicant disclosed details of her parents.
3. On 2 December 2019, the applicant was invited to comment on certain information, being that she had previously applied for a Tourist (Class FA) (subclass 600) visa offshore, on which she had declared that she had been employed at Walkers Expedition P. Ltd since 15 April 2017, and that she had a step-brother in Australia.
4. On 31 December 2019, the applicant lodged a Notification of incorrect answer(s) form in which she corrected her response to the relevant question about her employment history and explained 'I did not realise that it is important to mention it'. She also provided a statutory declaration in which she stated that she did not know she had a step-brother in Australia, but did have an aunt and uncle residing there. She stated that she provided genuine information to her mother's friend, Mr Rana, and contended that she did not know that he had falsified a relationship certificate to include a step-brother.
5. On 10 February 2020, a delegate of the Minister (the delegate) refused the application on the basis that the applicant did not meet clause 500.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not meet PIC 4020(1) and there were no compassionate or compelling circumstances that justified the grant of the visa.
6.On 28 February 2020, the applicant lodged an application for review to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's decision.
7. On 22 October 2021, the applicant attended a hearing before the Tribunal by Microsoft Teams with the assistance of her representative and a Nepali interpreter.
8. On 22 December 2021, the Tribunal affirmed the decision under review.
(References omitted)
The Tribunal’s decision and reasons
The Tribunal’s decision to affirm the Delegate’s decision and its reasons for doing so were summarised in the Minister’s written submissions in the following terms which I also adopt:
9. The Tribunal identified that the issue on review was whether the applicant met PIC 4020 as required by clause 500.217 for the grant of the visa. PIC 4020(1) relevantly required that:
... there is no evidence that the applicant has given, or caused to be given…a bogus document or information that is false or misleading in a material particular in relation to an application for a visa or a visa that the applicant held in the 12 months before the application was made.
10. The Tribunal then identified that the requirements in PIC 4020(1) and PIC 4020(2) could be waived if there were certain 'compelling or compassionate' circumstances justifying the grant of the visa: PIC 4020(4).
11. The Tribunal had regard to the factual background, the applicant's evidence and relevant case law. It accepted that the applicant did not have a step-brother and that the relationship certificate lodged with the Tourist visa application was a bogus document because it was counterfeit, and that the Tourist visa application lodged by the applicant contained false and misleading information that was purposefully untrue.
12. The Tribunal has regard to the applicant's explanation that she had no knowledge of the information contained in her Tourist visa application, but it was nevertheless satisfied that she had provided authority to her mother and Mr Rana to complete the application and supporting documents, and that the applicant was indifferent to the information provided in the visa application lodged on her behalf. The Tribunal was further satisfied that the misleading information was relevant to the Tourist visa application.
13. Therefore, the Tribunal found that the applicant did not meet PIC 4020(1).
…
15. The Tribunal noted that the requirements in PIC 4020(1) could be waived if there were certain compelling or compassionate reasons justifying the granting of the visa. It then had regard to the applicant's claimed circumstances, including that she had two semesters remaining of her degree and that she wished to complete it, her relationship with family in Australia and that the false material was 'not of her hand'.
16. However, the Tribunal was not satisfied that there were compelling circumstances affecting Australia's interests, or compassionate and compelling circumstances affecting the interests of an Australian citizen or permanent resident, or New Zealand citizen, that justified the grant of the visa.
17. Therefore, the Tribunal was not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4), and therefore found that the applicant did not satisfy PIC 4020 for the purpose of clause 500.217.
(References omitted)
Grounds of substantive application
In the application commencing this proceeding Ms Bogati alleged:
1. Immigration refused my Student Visa application for something I was completely unaware. Despite of giving regionable [sic] and truthful explanation, Immigration did not take that into consideration.
2. The refusal issues are not under my control. I was penalised for the thing I never committed.
3. I was deprived of fair trail [sic] at Immigration. Despite of refusal, I have managed to complete 19 units out of 24 units for Bachelor degree. I have come to this honourable court to request for Student Visa so that I can complete my study.
Additionally, in her affidavit filed in support of the initiating application, Ms Bogati said:
8.I provided my reply stating that I am unaware about I have step brother in Australia. I also informed that the visitor visa application was lodged by my agent in Nepal and they mentioned about my family members in Australia without my knowledge. The agent mentioned Mr Maheshwor Khadka as my step brother which is not true at all.
9.Due to this fact, my student visa application's information about family members was different to visitor visa application.
10.Despite of my Statutory Declaration, Immigration refused to accept my assertion and on 10/02/2020. They gave exclusion period of 3 years which is until 10/02/2023.
11.I was not convinced with Department’s decision and its reason, so I lodged review application with AAT which decided to affirm the Immigration decision.
12.Despite of negetative decisions by both Immigration and AAT, I am still not convinced that they made the right decision.
13.I strongly believe that I should not be penalised for the act I was not part of. I never had any intention to misled the department. The event was not under my control.
CONSIDERATION
Ground 1
The first ground of the application refers to the Department, but in this case the Court can only review the Tribunal’s decision. Relevantly, the Tribunal’s decision records that it considered the circumstances of the applicant’s visitor visa in some detail. That is to say, it took the applicant’s explanation into consideration but concluded, as it was obliged to do, that she was responsible for the information supplied on her behalf by others acting under her authority to submit her visitor’s visa application. The first ground discloses no basis on which the Tribunal’s decision should be set aside.
Ground 2
The second ground is, in substance, only a variation on the theme of the first ground of the application and for the same reasons articulated in relation to that ground, discloses no jurisdictional error on the Tribunal’s part.
Ground 3
The substantive contention of the third ground of the application is that the applicant was denied a fair hearing. Division 5 of pt 5 of the Act sets out the Tribunal's natural justice obligations to applicants such as Ms Bogati. It is apparent that she was invited to the Tribunal hearing under s.360 of the Act and there is no reason to think that any of the issues relevant to the Tribunal's determination were not made clear to her or were otherwise known by reason of the process through which she had gone prior to the Tribunal's review. Nor was it suggested that other provisions of that division, such as ss.359 or 359A, were contravened. I am not persuaded that the Tribunal breached its natural justice obligations to the applicant such that she was denied a fair hearing, or breached them in any other respect.
CONCLUSION
Although I am satisfied that the applicant has a satisfactory explanation for the delay in commencing the proceedings, I am not satisfied that it would be in the interests of the administration of justice to extend the time in which to bring this proceeding. As I said before, that application will be refused and the proceeding will be dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 6 March 2024
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