Descombes v Minister for Immigration

[2016] FCCA 2988

FEDERAL CIRCUIT COURT OF AUSTRALIA

DESCOMBES & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2988

Catchwords:
MIGRATION – Application for extension of time to bring a competent application to review Tribunal decision – not in the interests of the administration to extend time – application refused.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Migration Regulations 1994 (Cth), Schedule 2
Federal Circuit Court Rules 2001 (Cth), r.44.05

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442

AZAFX v Federal Circuit Court of Australia [2016] FCA 1139
AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234
Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50
Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20
Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491

First Applicant: MEE ALAIN OLIVIER DESCOMBES

Second Applicant: MARIE MELANIE ARIELLE DESCOMBES

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3637 of 2014

Judgment of: Judge Nicholls

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Sydney

Delivered on: 18 November 2016

REPRESENTATION

First applicant: In person and on behalf of the second applicant

Solicitors for the Respondents: Ms N Johnson of Mills Oakley Lawyers

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.

3. The applicants pay the first respondent’s costs set in the amount of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3637 of 2014

MEE ALAIN OLIVIER DESCOMBES

First Applicant

MARIE MELANIE ARIELLE DESCOMBES

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.477(2) of the Migration Act1958 (Cth) (“the Act”) on 24 December 2014 seeking an extension of time within which to make a competent application pursuant to s.476 of the Act. That application seeks review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 17 November 2014, which affirmed the decision of the Minister’s delegate to refuse Student (Temporary) visas to the applicants.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book”- “CB”, “RE1”) and the affidavit of Zachariah Mariette, solicitor, made on 24 December 2014.

3. Section 477(1) of the Act requires applications made pursuant to s.476 of the Act to be made within 35 days of the date of the relevant migration decision. In the current case, that is the Tribunal decision made on 17 November 2014. The application to the Court was made two days outside the 35 day period. On this basis, the application to the Court pursuant to s.477(2) of the Act is not competent. Nonetheless, the applicants have applied, in writing, for the Court to extend time. The Court may exercise the discretion to do so, if it is satisfied that it is in the interests of the administration of justice to do so.

4. The factors to be considered in relation to the question of the extension of time are not exhaustive (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442). However, there are a number of Federal Court authorities that provide guidance to this Court as to how to approach the consideration contemplated by s.477(2) of the Act (AZAFX v Federal Circuit Court of Australia [2016] FCA 1139, AJB15 v Minister for Immigration and Border Protection [2016] FCA 1102, MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 and SZTES v Minister for Immigration and Border Protection [2015] FCA 719).

5. In the current case, the factors to be addressed in considering the exercise of the discretion, arising from the circumstances presented, appear to be the length of the delay, and whether the applicants have provided any adequate explanation or reasonable excuse to explain the delay, whether there would be any prejudice to the Minister if time were extended, and whether the proposed substantive application for judicial review is sufficiently or reasonably arguable, or has such merit to justify the extension of time and allow the matter to proceed to a final hearing in the interests of the administration of justice.

6. At the hearing of the application to extend time, the first applicant, Mr A Descombes (“the applicant”), appeared in person. He confirmed that he did not require the assistance of an interpreter.

7. The second applicant did not appear. The applicant explained that she was ill, but in any event, that she knew of the Court event and that the applicant was to speak on her behalf.

8. During the hearing of the application to extend time, the applicant sought an adjournment of three months. He claimed that he wanted this time to obtain the services of a lawyer to represent him. The relevant background is that the lawyer, who represented the applicants and prepared their application to the Court on 24 December 2014, subsequently withdrew. The relevant notice of intention to withdraw was made on 30 August 2016, and the notice of withdrawal was filed on 12 September 2016. The applicant submitted that he had unsuccessfully approached a “couple of lawyers” to help him since that time.

9. The adjournment was refused. The applicant was unable to satisfactorily explain how a further three months would result in a successful engagement of a lawyer when he had been unable to do so in the six weeks available to him since the former solicitor put him on notice of his intention to withdraw.

10. Further, the applicant’s expectation that he would find a “good lawyer” to “build the case” appears to be borne out of hope rather than reality. As can be seen below the applicant’s circumstances and the Tribunal’s decision do not give rise to any legal argument such that it can be said to engage the interests of the administration of justice such as to warrant an adjournment. Any further time would not, in the circumstances, serve any useful purpose. Noting also of course, that there is no legal right to legal representation in matters of this type (SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234, Bodenstein v Minister for Immigration & Citizenship [2009] FCA 50 and Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20).

11. Further, there is an important public interest in having the decisions of administrative bodies such as the Administrative Appeals Tribunal, finalised. As was said by the High Court, such decisions cannot be allowed to become “hostage of an applicant’s search for favourable legal advice” (Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491).

12. I note that the applicants had the benefit of legal advice until the end of August 2016. Even given this, the applicants have not filed any evidence by way of affidavit to explain the, albeit short, delay, or to support the proposition that it is in the interests of the administration of justice to extend time. The Rules of this Court require such an affidavit (see r.44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)).

13. The application to extend time and the proposed substantive application were prepared by a solicitor on behalf of the applicants. The grounds of the application to extend time are in the following terms:

    “1. The applicant tried to do the lodgement by himself and found to beyond his comprehension. He made several attempts to seek legal advice but being a student, he found it quite unaffordable.

    2. He finally made contact with me last weekend and I agreed to act on his behalf and lodge the application on a pro bono basis.

    3. Unfortunately I had several pending matters which had to be completed before the holidays commenced on 24 December 2014. I did not see the Applicant’s email and documents until 23 December 2014. I was able to complete the application only this morning just before I lodged it.”

14. Before the Court, the applicant sought to dispute what was stated in the grounds of the application to extend time. The applicant explained that he had paid money to the lawyer, and that he had given “the documents” to him at least 10 days before the time limit, and told the lawyer not to delay in making the application. He also submitted that he had tried to contact the lawyer since that time but that “no one answered his telephone call”. The applicant further submitted that he has family problems in his home country of Mauritius, and as mentioned previously, he did make attempts to try and obtain the services of another lawyer.

15. Before the Court the applicant presented as having a satisfactory level of understanding and capacity in the English language. As stated above, he also confirmed he did not need the services of an interpreter. He made no submission that he did not know of the contents of the application to the Court which was signed by him.

16. The absence of any relevant evidence going to the issue of the delay in making the application to the Court, as required by the FCC Rules, is an element in finding that no reasonable explanation for the delay has been given.

17. It is important to note that the “explanation” given in the grounds of the application to extend time was not given in evidence such that the Minister had the opportunity to cross-examine the applicant.

18. However, even taken at face value, what the applicant asserted does not provide a satisfactory explanation for the delay. The mere assertion that he contacted a lawyer ten days before the expiry of the time limit in s.477(1) of the Act, but that the lawyer had taken the matter on a pro bono basis and had other matters to attend to at the relevant time, is not a satisfactory explanation.

19. However, what is the weightier element in refusing the application to extend time is the lack of sufficient merit in the grounds of the proposed substantive application such as to say that it is in the interests of the administration of justice to extend time.

20. The background to this case is as follows.  The applicant, who is a citizen of Mauritius, applied for the student visa on 14 March 2013 (CB 1 to CB 7). He stated that he had not received any assistance in making the application. His wife, now the second applicant in these proceedings, applied for a visa as a dependent member of his family unit (CB 2).

21. A delegate of the Minister refused the grant of the visas on 27 June 2013 (CB 30 to CB 39). The applicants applied for review to the Tribunal which, as differently constituted, remitted the application to the Minister’s department on 26 March 2014 (CB 40 to CB 44).

22. The applicants obtained the services of a registered migration agent to represent them. The relevant notice was given to the Minister’s department by email on 17 April 2014, although the attached document was dated 18 July 2013 (CB 55 to CB 60), following a request by the delegate (CB 48 to CB 54).

23. The applicants provided further documents in support of the application on 28 April 2014 (CB 65 to CB 72), including various information on bullying and depression (CB 77 to CB 95), and a statement by the applicant addressing various matters relating to the criteria for the grant of the visa (CB 96 to CB 97).

24. The delegate, different to the delegate who made the previous decision, refused the grant of the visa to the applicant, and subsequently the second applicant, on 3 June 2014 on the basis that the applicant did not meet the regulatory requirement that he stay in Australia as a genuine student. The delegate had regard to large gaps in the applicant’s study history and lack of academic progress (CB 107 to CB 111).

25. The applicants applied for review to the Tribunal on 13 June 2014. They continued to be represented by a registered migration agent (CB 112 to CB 114). They attached a copy of the delegate’s decision and notification to the application (see CB 114.2 at “First document” and “Second document”). The applicant attended a hearing before the Tribunal on 10 November 2014 (CB 129). He provided further documents to the Tribunal (CB 132 to CB 133).

26. There is no dispute that the subclass of visa relevant to the application was a subclass 572 visa (see Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”)). The applicant was therefore required to satisfy the Tribunal that he met all of the criteria relevant to this subclass.

27. Given the issue before the Tribunal, of particular relevance was cl.572.223 at Schedule 2 to the Regulations:

    “572.223

    (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a) the Minister is satisfied that 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

    (b) the applicant meets the requirements of subclause (2).

    (2) An applicant meets the requirements of this subclause if:

    (a) the applicant gives the Minister evidence in accordance with the  requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii) any other relevant matter; and

    (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capability.”

28. The Tribunal affirmed the decision of the Minister’s delegate on 17 November 2014. The Tribunal found that the applicant was not a genuine applicant for entry and stay as a student in Australia and therefore did not meet the requirement of cl.572.223(2)(b) at Schedule 2 to the Regulations ([19] at CB 140).

29. In reaching this conclusion, the Tribunal was required, by cl.572.223(2)(b)(i) and (ii) at Schedule 2 to the Regulations, to have regard to the applicant’s stated intentions in relation to any visa conditions and any other relevant matter.

30. In relation to cl.572.223(2)(b)(i) at Schedule 2 to the Regulations, the Tribunal had regard to the applicant’s evidence that he was a mechanic and his intention to open a garage in Perth, or even in Melbourne. In relation to cl.572.223(2)(b)(ii) at Schedule 2 to the Regulations, the Tribunal had regard to two gaps in his study history, and considered that these gaps were only partially explained.

31. It was reasonably open to the Tribunal to find that an intention to remain in Australia to work was inconsistent with staying in Australia to study. In all, the Tribunal found that the applicant was not a genuine student in Australia on the basis that he had stated that he wanted to stay in Australia to work, there were extended periods of time when he had not studied, and his future study plan had very limited utility to his career plans.

32. The issue before the Tribunal was whether the applicant was a genuine student in Australia having regard to the intention to comply with the conditions of his student visa, and other relevant matters.

33. The Tribunal’s reasoning for its finding adverse to the applicant on this issue is as follows. The applicant had been in Australia since 2008, and on the evidence before it, there were extended periods of time when he had not studied. The Tribunal considered the applicant’s explanation for these periods of time. Particularly in relation to the second period of time, between April 2012 and March 2013, it noted that the applicant, in giving his evidence to it, was reticent to explain the circumstances of this gap in his study history ([13] at CB 139). Further, the applicant’s stated plans before the Tribunal as to what he would do in the future were that he was a mechanic and was hoping to open a garage in Perth ([14] at CB 139). The Tribunal found that that applicant’s intention was contradictory to a genuine intention to study in Australia.

34. The Tribunal’s “decision” can be understood as being encapsulated in what the Tribunal said at [18] (at CB 140):

    “The Tribunal has considered the circumstances of the applicant. He obviously has suffered from particular issues while in Australia, and states he has learnt his lesson. However, given the circumstances where the applicant clearly has indicated his interest in remaining in Australia to work, has had extended periods of time when he has been in Australia while not studying, and is presently studying and planning to study courses with very limited utility to his career plans, the Tribunal does not consider that the applicant is a genuine student in Australia”.

35. The grounds of the proposed substantive application are in the following terms:

    “1. The decision of the Second Respondent is affected by jurisdictional error on the basis that the Second Respondent asked itself the wrong question by misconstruing the words ‘genuine applicant for entry and stay as a student’ in clause 572.223. Specifically, the Second Respondent had regard to the explanatory statement only in interpreting the words ‘genuine applicant for entry and stay as a student’, rather than applying the ordinary meaning of the words to the fact scenario.

    2. When the Second Respondent asked the First Applicant what his plans were and the First Applicant explained his plans for opening a garage in Perth and possibly in Melbourne. There is no evidence before the Second Respondent that First Applicant did not intend to complete his studies as required by his visa conditions. In fact, the evidence given was that the First Applicant intended to finish his Business Certificate and at the end of which he intended to enrol in a course in Diploma of Management. In this regard, the Second Respondent erred by questioning the relevance of the First Applicant’s choice of course and studies thus misconstruing the meaning of the words ‘genuine applicant for entry and stay’.”

    [Errors in original.]

36. In essence, the first ground of the proposed substantive application appears to complain that the Tribunal fell into error by misconstruing the words “genuine applicant for entry and stay as a student” as they appear in cl.572.223 at Schedule 2 to the Regulations because it only had regard to some “explanatory statement” rather than applying what is said to be the ordinary meaning of the words to the “fact scenario”.

37. I agree with the Minister that, having regard to the evidence before the Court, and in particular the Tribunal’s decision record, there is no support for the assertion that the Tribunal confined its consideration to any “explanatory statement”.

38. It is the case that the Tribunal’s reasons make no reference to any explanatory statement. There is nothing before the Court to show that the Tribunal made reference to any such unidentified explanatory statement. On what is before the Court, the Tribunal plainly understood the focus and intention of cl.572.223 of the Regulations which is that it was required to determine whether the applicant, in applying for the visa, did so for the genuine purpose of being able to undertake studies in Australia. In light of the evidence before the Court, the first ground lacks merit such as to warrant an extension of time.

1. Ground two asserts that the Tribunal fell into legal error by questioning the applicant’s choice of courses of study. Further, it contends that there was no evidence before the Tribunal that the applicant would not complete his studies as was required by the relevant visa conditions.

2. The Tribunal did consider evidence relevant to the future. It took into account the applicant’s own evidence as to his intention to open a mechanic business in Australia. In this regard, the applicant’s academic history, his future study plans, and his intention to open a garage where he would work as a mechanic, were all matters that can reasonably be seen to be relevant to an assessment of whether the applicant was a genuine applicant for entry and stay in Australia as a student.

3. As the Minister submits, it is clear that the Tribunal did not treat any of these elements as ultimately being determinative. But rather, as part of the applicant’s circumstances, it assessed and drew upon these elements as part of its assessment as to the applicant’s intention. In the circumstances it was reasonably open to the Tribunal to find that the applicant did not satisfy the requirements of cl.572.223 at Schedule 2 to the Regulations. The ground as pleaded does not contain merit such as to say that it engages the interests of the administration of justice to warrant an extension of time. Nor, before the Court, was the applicant able to assist with any further explanation of the grounds of the application.

Conclusion

1. In all, the period of delay is short, but no satisfactory explanation has been provided in any evidentiary context to explain it. While there is no prejudice to the Minister in extending time neither of the grounds of the application reveal such merit as to warrant any extension of time.

2. The application to extend time should be refused. I will make that order accordingly.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 November 2016