Fareed v Minister for Immigration
[2016] FCCA 1179
•20 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAREED v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1179 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time application – consideration of factors – relevance of application for ministerial intervention. |
| Legislation: Constitution, s.64 Federal Circuit Court Rules (Cth), r.1.06, 44.05 Migration Act 1958 (Cth), ss.351, 474, 476, 477 Migration Regulations 1994 (Cth) |
| Ali v Minister for Immigration & Anor [2015] FCCA 369 M211 of 2003 v Refugee Review Tribunal & Anor [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 |
| Applicant: | BASIT FAREED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 335 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 April 2015 |
| Date of Last Submission: | 22 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 20 May 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr M Hawker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent be amended to read “Administrative Appeals Tribunal” pursuant to the Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 335 OF 2014
| BASIT FAREED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24 October 2014 the applicant filed an application seeking review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively. The Tribunal Decision, which was made on 19 March 2014, is at Court Book (“CB”) 165-167), and affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the First Respondent (“Minister”) made on 29 June 2012 to refuse the applicant a Student (Temporary) (Class TU) visa (“Student Visa”) under the Migration Act1958 (Cth) (“Migration Act”).
The application was lodged outside of the time period set by s.477(1) of the Migration Act (“Proposed Judicial Review Application”), and is therefore incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act. The Proposed Judicial Review Application seeks an extension of time under s.477(2) of the Migration Act (“Extension of Time Application”).
Background to the Proposed Judicial Review Application
Background before the Tribunal Decision
The background to this matter before the Tribunal Decision is as follows:
a)the applicant lodged an application for the Student Visa on 8 March 2012: CB 1-7;
b)on 29 June 2012 the Delegate in the Delegate’s Decision refused to grant the applicant the Student Visa: CB 41-45;
c)on 12 July 2012 the applicant lodged an application for review of the Delegate’s Decision in the Tribunal: CB 49-59;
d)by letter from the Tribunal dated 19 February 2014 the applicant was:
i)invited to appear before the Tribunal on 19 March 2014 to give evidence and present arguments relating to the issues in his case: CB 67-69;
ii)advised by the Tribunal ‘what you should do within 7 days of receipt of this letter’: CB 67-69, and in particular (at CB 67) to:
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa.
iii)asked to provide at CB 68, relevantly:
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
iv)told at CB 69 that:
The Tribunal may make a decision at the end of your hearing.
e)the requested documents were not provided to the Tribunal by the applicant within the nominated seven days;
f)on 10 March 2014 the applicant twice emailed the Tribunal as follows:
i)on the first occasion at 6.51pm on 10 March 2014 as follows:
Subject: Need assistance about providing documents for hearing MRT case number:1210140
From: [applicant’s email handle deleted] @ hotmail.com
Date: Mon, 10 Mar 2014 18:51:48 +0800
Hi there
I have got the date for hearing on 19/03/2014, my case nunber is 1210140.
The college i have been studying is PCBT perth, they refused to assists me by providing documents. i went there 4 times discussed everything but at the end they refused to give documents which would defend my case. Some documents i.e bank statement and affidavit of support might take couple of weeks as well.
Right now i am blind and don't even know what should i do because those documents are very important for me.
If it is possible for you, can you please forward this email to my Tribunal officer or can you please send me his direct email. i couldn't find his email address on the letter i have receieved. i am so worried about that..!
If it is possible for you, can you please forward this email to my Tribunal officer or give me his direct email so i could communicate with him. i could'nt find email address on the letter I have received. i am so worried about that.. .!
Name of my tribunal officer is King Raymond.
Please reply on this email address because other one is not working properly.
Thank you soo much
Applicant’s Affidavit, Annexure D (copied from original copy without amendment).
ii)on the second occasion at 9.25pm on 10 March 2014 as follows:
From: [applicant’s email handle deleted] @ yahoo.com
Sent: Date: Monday, 10 March 2014 9:25 PM
To: Enquiries MRTRRTSubject: Need assistance about providing documents for hearing MRT case number:1210140.
Hi there
I have got the date for hearing on 19/03/2014, my case number is 1210140.
The college I have been studying is PCBT perth,they refused to assists me by providing documents.i went there 4 times discussed everything but at the end they refused to give documents which would defends my case.Some documents i.e bank statement and affidavit of support might take couple of weeks as well.
Right now I am blind and don’t even know what should I do because those documents are very important for me.
If it is possible for you,can you please forward this email to my Tribunal officer or can you please send me his direct email.i couldn’t find his email address on the letter which I have received. I am so worried about that..!
Tribunal officer details is given below
Name: King Raymond
I will wait for an answer.
(See CB 153: transcribed without amendment);
g)no request for an adjournment of the hearing was made in that email or prior to the hearing on 19 March 2014: CB 153;
h)on 10 March 2014 the applicant signed a Response to Hearing Invitation indicating that he would take part in the Tribunal hearing scheduled for 19 March 2014: CB 154-155; and
i)on 19 March 2014 a Tribunal hearing took place and the applicant was in attendance, but was not represented by a lawyer or a migration agent, but had the assistance of an Urdu interpreter: CB 158-159 and 166 at [4].
Tribunal Decision
The relevant parts of the Tribunal Decision are sufficiently short to set out in full hereunder:
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The issue before the delegate was whether the applicant met the criterion in cl.572.223(2)(a)(i). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.
7. With limited exceptions not relevant to this case, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r. 1 .40A for the subclass at the time of application.
8. The applicant gave evidence in the hearing that he was not enrolled in a course or had an offer of enrolment. He had been told by the college to wait for the outcome of the review. He was intending to undertake a Diploma of Occupational Health and Safety. Since his arrival in Australia on 22 June 2010, he has completed a Diploma of Business course which lasted 6 months. He last undertook any study in June 2012. The Tribunal stated that if he did not have a certificate of enrolment or an offer of enrolment, he could not meet an essential criterion for the grant of the visa and the decision under review must be affirmed. He stated that he was willing to study, his family had encountered problems and his father was paralysed, the college was not supporting him, he needed a couple of weeks to obtain the enrolment and 4 to 5 weeks to obtain financial documents. He was young when he came to Australia and is now mature and wants to be given a chance.
9. The Tribunal has considered the applicant's email, dated 10 March 2014, in which the applicant stated that he has been studying at PCBT Perth but they refused to assist him and give him any documents which would defend his case; and some documents that is, a bank statement and affidavit of support, might take a couple of weeks.
10. When the Tribunal invited the applicant to a hearing, by letter dated 19 February 2014, it indicated that the applicant should provide a copy of his current certificate of enrolment or offer of enrolment in a registered course, as required for the grant of the student visa. The Tribunal has considered the applicant's request that he required additional time of up to 5 weeks to obtain further documentation. The Tribunal does not agree to adjourn the hearing because it considers that the applicant has had sufficient time and opportunity to obtain a certificate of enrolment or an offer of enrolment, if he was genuinely intending to do so. The Tribunal's view is strengthened by the applicant's evidence that he has not undertaken any study since June 2012 and this casts doubt on whether he now intends to obtain a certificate of enrolment or an offer of enrolment in a relevant course.
11. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.
12. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.
13. For these reasons, the decision under review must be affirmed.
DECISION
14. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
CB 166-167 at [6]-[14].
Post-Tribunal Decision
On 15 April 2014 the applicant wrote to the Minister seeking ministerial intervention: Migration Act, s.351, on the basis that “I will be marrying an Australian Citizen in February 2015 (when she has turned 18)”: Affidavit of Applicant dated 24 October 2014, Annexure B (“Applicant’s Affidavit”).
By letter dated 10 October 2014 the applicant was notified that:
a)his request for ministerial intervention had been determined, and that the Assistant Minister for Immigration and Border Protection, exercising, under s.64 of the Constitution, the Minister’s powers, had decided it would not be in the public interest to intervene in the applicant’s case; and
b)… “your Bridging E visa will cease on 13 October 2014. As you have no further matters before the department, you are expected to depart Australia as soon as practicable. Enclosed is a fact sheet which contains information about choosing to leave Australia”: Applicant’s Affidavit, Annexure C.
Proceedings in the Court
The Proposed Judicial Review Application
The Proposed Judicial Review Application was filed on 24 October 2014. In order for the Proposed Judicial Review Application to have been lodged within 35 days of the Tribunal Decision, it was required to be lodged by 23 April 2014. The Proposed Judicial Review Application was therefore lodged 184 days outside of the time period set by s.477(1) of the Migration Act, and is therefore incompetent unless the Court grants an extension of time under s.477(2) of the Migration Act.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Orders made by a Registrar
On 21 January 2015 a Registrar of this Court made orders allowing the applicant to file and serve any amended application giving complete particulars of each ground of review, any affidavit containing additional evidence including any transcript of the Tribunal hearing, and any written legal submissions and list of authorities, the former by 18 February 2015, the latter by 14 days before the hearing, which was listed for 22 April 2015.
The applicant did not file or serve any of the documents referred to in the Registrar’s order of 21 January 1015.
Applicant’s Affidavit
The Applicant’s Affidavit sworn in support of the Extension of Time Application sets out the background up to the time of the Tribunal’s invitation to the applicant to attend the Tribunal, and then asserts as follows:
a)that he “retained legal representation immediately prior to the [Tribunal] hearing”: Applicant’s Affidavit at [6];
b)that he “sought an adjournment, one week prior to the hearing, from the Tribunal for the hearing, to prepare all the information and evidence requested by the Tribunal and to ensure that … [he] met all the criteria for the visa. … [he] had intended on procuring a letter of offer to enrol in an Occupational Health and Safety course to meet the relevant criteria of the student visa. ... [he] was also making efforts to organise … [his] financial records [to] be sent from Pakistan, however due to the ill health of … [his] father this was taking much longer than anticipated”: Applicant’s Affidavit at [7];
c)the Tribunal refused to adjourn the hearing, and the applicant was “unsatisfied” with the Tribunal Decision “not to grant … an adjournment” as it “did not give … a real chance to secure an offer of enrolment or other evidence requested by the Tribunal and did not give … a real chance to present … [his] case”: Applicant’s Affidavit at [9];
d)he subsequently sought ministerial intervention, unsuccessfully [as outlined above: see [5]-[6] above]: Applicant’s Affidavit at [10]-[11];
e)following the refusal of his request for ministerial intervention he sought legal advice, and on 13 October 2014 obtained legal advice that he could apply to this Court for judicial review “if there is a jurisdictional error”: Applicant’s Affidavit at [12];
f)that prior to his “appointment” at which he was told of his right to judicial review he had “no idea” that he could apply to this Court for judicial review, but that he was “willing to lodge” an application for judicial review with this Court: Applicant’s Affidavit at [12];
g)in his email of 10 March 2014 to the Tribunal he indicated that he “needed more time to procure all necessary evidence” and that he “needed an adjournment to secure an offer of enrolment to study an Operational Health and Safety course” and that he “explained to the Tribunal that some documents supporting … [his] position would take some weeks to procure because of … [his] father’s ill health”: Applicant’s Affidavit at [13];
h)the terms of the 10 March 2014 emails set out above: see [3(f)] above;
i)that had the Tribunal adjourned the matter he “would have been able to procure and collate substantial evidence to demonstrate that … [he] satisfied the relevant criteria of being enrolled in a course to meet the student visa criteria”: Applicant’s Affidavit at [14] (see also at [15]); and
j)that by “not exercising discretion to grant an adjournment, … [he] was not given sufficient time to prepare and collate all necessary evidence for the [Tribunal] hearing, and … [he] was not able to secure an offer to enrol in a coarse [sic]”: Applicant’s Affidavit at [16].
Grounds of Extension of Time Application
The applicant relies on the following grounds in support of his application for an extension of time:
a)he has been pursuing ministerial intervention (ground 1);
b)the substantive application has merits (ground 2); and
c)the applicant did not have legal representation and did not obtain legal advice in relation to available judicial review until 12 June 2014 (grounds 3 and 4).
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established, but not exhaustive, in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
See SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
Delay – extent and reasons
In this case the delay is one of significant length. The application is 184 days out of time. The delay is more than five times the length of the limitation period. In those circumstances, there must be good reasons for the delay, or powerful considerations arising from the other factors for consideration in extending time, and possibly both, before the Extension of Time Application might be granted.
It is a mandatory requirement under r.44.05(2)(c) of the FCC Rules, subject to waiver of compliance under r.1.06(1) of the FCC Rules, that an affidavit explaining the delay be filed in support of the Extension of Time Application: Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [24] per Judge Lucev. The applicant has complied with that requirement by filing the Applicant’s Affidavit. The question then becomes whether the reasons set out in the Applicant’s Affidavit sufficiently explain the delay.
Ground 1 of the Extension of Time Application cited the fact that the applicant pursued ministerial intervention. The applicant did so on 15 April 2014, or some 26 days after the Tribunal Decision was delivered. The applicant waited almost six months for the ministerial intervention decision which was advised to him on 10 October 2014. The applicant took no steps to ascertain his rights in the interim. In that regard it is relevant to observe that although the applicant was not represented at all at the Tribunal hearing, he had, according to his own evidence, retained legal representation immediately prior to the Tribunal hearing: Applicant’s Affidavit at [6].
An application for ministerial intervention does not provide an explanation for the delay in making an application for judicial review to this Court. The relevant law was summarised by the Full Court of the Federal Court in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; (2004) 82 ALD 24 (“M211 of 2003”) as follows:
22. In Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1266 Weinberg J considered an application for an extension of time in which to apply for mandamus and certiorari. After referring to Marks his Honour said at [10] and [12]:
In the present case, the decision of the RRT, which is impugned, was made on 26 November 1999. The application to the High Court for an order nisi was not made until approximately sixteen months later, on 29 March 2001. The only explanation proffered for the delay was the request that the applicants made, in October 2000, some eleven months after the RRT's decision, for ministerial intervention pursuant to s 48B and s 417 of the Act. …
In my view, the delay has not been adequately explained. I agree entirely with the comments of von Doussa J regarding this very same issue in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at pars [8]-[10]. There was nothing to prevent the applicants from pursuing their application for constitutional writs in the High Court while, at the same time, seeking ministerial intervention. The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.
23 In Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331 Weinberg J again dealt with a s 417 request put forward as an explanation for the delay in applying for constitutional writs. His Honour said at [18]-[20]:
It was submitted on behalf of the respondent that the applicant's request under s 417 should be viewed as an indication that he was prepared to accept the RRT's decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course. In making that submission, counsel relied upon a series of decisions of this Court … .
In Applicant A2 of 2002, von Doussa J said of the applicant that:
having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.
This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa, characterised as ‘inconsistent courses’.
It is also useful to have regard to what was said by Heerey J in Re Ruddock; ex parte LX [2003] FCA 561 at [42]:
As a matter of law there was no reason why that should have held up the filing of an application in the High Court. The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.
24 In Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198 Goldberg J said at [14] that the applicant's course of conduct in making a s 417 application was indicative of a decision to abandon any course that would seek to challenge the decision of the Tribunal on grounds available under the Act or otherwise at law. At [15] his Honour said that the s 417 application in that case was not a sufficient special circumstance to warrant excusing the delay and allowing the extension of time, particularly because the applicant's conduct implicitly accepted that the Tribunal's decision was not to be the subject of challenge.
M211 of 2003 at [22]-[24] per Black CJ, Sackville and Sundberg JJ.
The law as set out at M211 of 2003, and the cases there cited in the above extract, has been applied by this Court. For example:
a)in Gill v Minister for Immigration & Border Protection & Anor [2014] FCCA 1929 at [8] per Judge Emmett it was observed that:
… it is well established that an applicant’s conduct in seeking Ministerial intervention, under s.417 of the Act, is indicative of a decision by the applicant to abandon a course that would seek to challenge the decision of the … [Tribunal] on grounds that may have otherwise been available to him …
b)in Wei v Minister for Immigration & Anor [2013] FCCA 262 at [22] per Judge Nicholls it was said that:
On its own this [seeking ministerial intervention] is not a satisfactory explanation for the delay. On his own submission, the applicant had the benefit of legal advice and chose to pursue Ministerial intervention with respect to a protection visa instead of coming to the Court …
c)In Borra v Minister for Immigration & Anor [2013] FCCA 1216 at [38] per Judge Burchardt it was said that:
… even if I accept the applicant's version of the events following the decision entirely (and of course it has not been tested by cross-examination), the fact is, there appears to be binding authority to the effect that the submission of s.351 application is effectively an acceptance of the Tribunal's decision …
Both precedent and judicial comity demand that in the indistinguishable circumstances of this case, the ratio of the judgment in M211 of 2003, and the cases there cited, and the cases in this Court cited above, be followed by the Court as presently constituted: Suh v Minister for Immigration & Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Ali v Minister for Immigration & Anor [2015] FCCA 369 at [18] per Judge Lucev. The fact that the applicant sought ministerial intervention, and the delay thereby caused, is therefore unavailing to him as an explanation for the delay in filing the Proposed Judicial Review Application.
Legal representation and advice
Insofar as the applicant complains that he did not have the services of a lawyer to assist him, and was not able to obtain legal advice until 12 June 2014, the Court notes that the applicant says that he “retained legal representation immediately prior to the [Tribunal] hearing”: Applicant’s Affidavit at [6], which hearing was on 19 March 2014. As noted above, the applicant was self-represented before the Tribunal, but on his own evidence he had access to legal representation prior to the Tribunal hearing. The applicant does not say who it was that was retained as his “legal representation” at that time. Nor does the applicant explain why that legal representation was not maintained at or after the Tribunal hearing, or why that legal representation was not able to give advice after the Tribunal hearing delivered. Those are significant gaps in the evidentiary narrative of an explanation for the delay in filing the Proposed Judicial Review Application.
Although the grounds of the Extension of Time Application indicate that the applicant sought and obtained legal advice on 12 June 2014, nowhere in the Applicant’s Affidavit is there any indication that the applicant obtained legal advice on that date. There is simply a gap between retaining legal representation immediately prior to the Tribunal hearing on 19 March 2015: Applicant’s Affidavit at [6], and the applicant obtaining legal advice on 13 October 2014 immediately following the advice of the refusal of ministerial intervention: Applicant’s Affidavit at [12]. The omission of the events of 12 June 2014 is unexplained. Moreover, if the applicant did obtain legal advice on 12 June 2014, that does not assist him, as there is then an almost four and one half month delay before filing of the Proposed Judicial Review Application on 24 October 2014 which remains wholly unexplained.
Ultimately, however, the fact that the applicant complains that he did not have the services of a lawyer to represent him or to give advice to him, does not assist the applicant in terms of an explanation of the delay, particularly a delay of this length. This is because there is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. It follows that a lack of legal representation and legal advice cannot of itself be a reasonable explanation for a delay in filing the Proposed Judicial Review Application in this Court.
Delay – extent and reasons – conclusion
In the Court’s view none of the reasons posited for the delay in filing the Proposed Judicial Review Application either properly, or at all, explain the delay or the extent of the delay in filing the Proposed Judicial Review Application. In the Court’s view such explanation as has been put forward by the applicant is unsatisfactory. That, combined with the significant length of the delay, must weigh heavily against granting the Extension of Time Application.
Prejudice to the Minister
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. Further, in the circumstances of this case, where, for reasons set out:
a)above, no satisfactory explanation for the delay and its extent has been provided by the applicant; and
b)below, no jurisdictional error is established,
that prejudice is compounded.
The degree of prejudice must, however, remain minimal in the context of proceedings where it is necessary to give consideration to the merit of the Proposed Judicial Review Application as one of the factors in determining whether to extend time. In any event, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett.
Impact on the applicant
The impact on the applicant of a failure to extend time for making the Proposed Judicial Review Application will be negligible, as, for reasons set out below, the Proposed Judicial Review Application has no reasonable prospect of success because no jurisdictional error in the Tribunal Decision is established.
Public interest
As to the interests of the public at large, this matter is determinable on existing well understood and explained principles arising from the provisions of the Migration Act and the Migration Regulations 1994 (Cth), and on established applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Proposed Judicial Review Application.
Merits of the Proposed Judicial Review Application
The background to this matter before the Tribunal Decision, the findings in the Tribunal Decision, and the post-Tribunal Decision activities of the applicant are set out above: see [3]-[6] above.
The applicant’s Proposed Judicial Review Application raises the following ground:
The Migration Review Tribunal made a jurisdictional error by not discharging its function of deciding whether to adjourn the review according to law and by not conducting the review in the manner required by law.
Particulars
(i) The Tribunal erred in refusing to adjourn the Applicant’s hearing on 19 March 2014 and denied the applicant the opportunity to present his case on the review, by effectively preventing him from submitting the most accurate evidence.
(ii) The Tribunal did not act reasonably in exercising its discretion to adjourn and as such did not conduct the review in the manner required by, or discharge its function according to, the Migration Act 1958.
The relevant principles in relation to legal unreasonableness as explained by the High Court in Li, and subsequently by the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 (“Singh”) have been summarised by the Federal Court in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Pandey at [41] per Wigney J.
In the Tribunal Decision the Tribunal:
a)had regard to the relevant statutory criteria, and correctly identified the issue, being whether, at the time of the decision, the applicant met the enrolment requirements for the Student Visa: CB 166 at [6]-[7];
b)had regard to the applicant’s evidence that he was not enrolled in a course of study and did not have an offer of enrolment, but intended to undertake a Diploma of Occupational Health and Safety: CB 166 at [8];
c)noted that the applicant had arrived in Australia in June 2010 and completed a Diploma of Business course which lasted six months, but had undertaken no study since June 2012: CB 166 at [8]; and
d)had regard to the applicant’s contention, given in evidence before the Tribunal, that he needed “a couple of weeks to obtain the enrolment and 4 to 5 weeks to obtain financial documents”: CB 166-167 at [8].
In the Tribunal Decision the Tribunal further:
a)expressly referred to its consideration of one of the 10 March 2014 emails and its content: CB 167 at [9];
b)had regard to the adjournment application made by the applicant: CB 167 at [10], and considered that granting the application was not appropriate in the circumstances on the basis that “the applicant has had sufficient time and opportunity to obtain a certificate of enrolment or an offer of enrolment, if he was genuinely intending to do so”;
c)considered that the conclusion set out in (b) above was strengthened because the applicant “has not undertaken any study since June 2012” which “casts doubt on whether he now intends to obtain a certificate of enrolment or an offer of enrolment in a relevant course”: CB 167 at [10]; and
d)found that there was no evidence before the Tribunal that the applicant had enrolled in, or had a current offer of enrolment, in any applicable course of study: CB 167 at [11].
There is no evidence before the Court to support a conclusion the applicant had a certificate of enrolment or an offer of enrolment to produce to the Tribunal at the relevant time.
The Tribunal gave active consideration to the applicant’s request for an adjournment and reasonably exercised its power to refuse to adjourn the hearing: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 (“Li”); Singh.
The Tribunal made findings of fact that were open to it on the basis of the evidence that was before it. Ultimately, it is for the applicant to make out his case before the Tribunal. There was no evidence before the Tribunal to suggest that there was a certificate of enrolment or an offer of enrolment readily available and in such circumstances if the Tribunal cannot be satisfied, on the basis of the material presented, that the applicant’s claims are genuine it does not have a duty to make further enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 (2004); (2004) 78 ALJR 992; (2004) 207 ALR 12; Minister for Immigration & Citizenship v Le & Ors [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455.
The timeline of events as set out in the background above supports a conclusion that the discretionary power was not exercised by the Tribunal in an unreasonable way.
The Court observes that the request for a delay in order to allow the applicant to enrol in an applicable course of study was one which in the circumstances was a request by the applicant to commence the enrolment process, and not to complete an enrolment process which had already been commenced. In that regard, there is no evidence that the applicant made any enquiries of any relevant educational provider as to any course of study that he might undertake, including a course in occupational health and safety which he says he was seeking to undertake. In that regard, it was open to the Tribunal, as the finder of fact, to cast doubt upon whether the applicant was genuinely intending to study: CB 167 at [10].
In the circumstances the Tribunal:
a)did not make an arbitrary, capricious or unjust decision, but rather one based firmly on the relevant legislative criteria, and did so in circumstances where the applicant had had a reasonable opportunity to make enquiries or enrol in an applicable course of study, or to demonstrate to the Tribunal that he was intending to do so, but in respect of which he was not able to persuade the Tribunal for reasons set out above: see [4] and [32]-[36] above; and
b)the Tribunal’s reasons for making the Tribunal Decision are plainly evident, transparent and intelligible on the face of the Tribunal Decision.
The Tribunal’s rejection of the applicant’s request to delay making its decision was not therefore unreasonable or irrational in the sense discussed by the High Court in Li or the Federal Court in Pandey. It was open to the Tribunal to proceed to make a decision on the application to the Tribunal, and there was no error, and in particular no jurisdictional error, in refusing to delay the Tribunal Decision.
The Court notes that no complaint is made in respect of the Tribunal Decision other than in respect of the failure to adjourn the Tribunal hearing.
In the above circumstances, the Proposed Judicial Review Application lacks merit. In the circumstances, the lack of merit in the Proposed Judicial Review Application weighs heavily against the Extension of Time Application.
Conclusions and orders
The Court has concluded that:
a)there is no jurisdictional error in the Tribunal Decision, and as such it is a privative clause decision within the meaning of s.474 of the Migration Act and as such, is not reviewable by this Court. The Proposed Judicial Review Application therefore has no prospects of success, and the Court should not therefore extend time: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [39] per Foster J; SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J;
b)it is not, in any event, in the interests of the administration of justice to extend time under s.477(2) of the Migration Act, particularly given the very lengthy and unsatisfactorily explained delay in filing the Proposed Judicial Review Application, and the fact that it has no prospects of success, and it therefore follows that the Extension of Time Application ought to be dismissed, and there will be an order accordingly; and
c)in the circumstances, it is unnecessary therefore to make a further order that the Proposed Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [34] per Judge Lucev.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 May 2016
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