Habib v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1447

FEDERAL COURT OF AUSTRALIA

Habib v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1447

TAHIR HABIB V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 518 OF 2002

NORTH J
18 NOVEMBER 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 518 OF 2002

BETWEEN:	TAHIR HABIB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH
DATE OF ORDER:	18 NOVEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application for an extension of time to appeal is refused.

2.        The applicant is to pay the respondent's costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 518 OF 2002

BETWEEN:	TAHIR HABIB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH
DATE:	18 NOVEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal.  The application is brought under O 52 r 15(2) of the Rules of the Federal Court.  The judgment appealed from was delivered on 16 July 2002.  In that decision, the primary judge rejected an application by the applicant for review of a decision of the Migration Review Tribunal (the Tribunal) which upheld the decision of the delegate to refuse the applicant a Student (Temporary) (Class TU) (Subclass 560) visa.

2. The primary judge gave his reasons orally on 16 July 2002.  They were reduced to writing and forwarded to the applicant a short time afterwards.  The written reasons for judgment bear the date of 9 August 2002.  The applicant sought to file in court a notice of appeal on 12 August 2002.  That was only a few days after the date of the written judgment but later than 21 days from the date the judgment was given orally (O 52 r 15(1)).  It was, the applicant says, the same day that he received a copy of the written reasons.  In these circumstances, it can hardly be said that the applicant delayed in taking steps to appeal against the decision.

3. The application for an extension of time is opposed by the respondent, but not on the basis that the applicant delayed in taking action, nor on the basis that the applicant had no acceptable explanation for delay.  The respondent also concedes that it suffers no prejudice by the short delay which has occurred.  The ground upon which the respondent opposes the application for an extension of time is that the appeal simply cannot succeed.

4. The issue which was before the Tribunal was whether the applicant had substantially complied with the conditions, if any, to which the visa held or last held by the applicant was subject. The applicant held a student visa prior to his application for the present visa and that student visa had been granted to him on 6 March 2000. That visa was subject to condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, that condition was as follows:

   “8202  The holder:

   …
   (b)  must…

   (i)attend at least 80 % of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or

   (ii)if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory …”

5. In December 2000, that condition was replaced by a new condition 8202 which applied to all student visas that were in effect at the time of the change. The new condition 8202 is contained in Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). So far as is relevant, it provides:

   “(2)Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3) …

   (3)The condition is that:

   …

   (c)  in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80 % of the contact hours scheduled:

   (i)for a course that runs for less than a semester – for the course; or

   (ii)for a course that runs for at least a semester – for each term and semester of the course; and

   (d)  in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:

   (i)for a course that runs for less than a semester – for the course; or

   (ii)for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.”

6. Although there is some controversy about which condition applies in such circumstances, the Tribunal in the present case applied the new condition 8202 to the application.  The Tribunal found that the applicant did not substantially comply with condition 8202 during the term of his previous visa.

7. Importantly, as his Honour found at par 8 of his reasons, the material before the Tribunal indicated that during the academic year in 2000, Mr Habib was enrolled in an Advanced Diploma of Business (Accounting) at the Chalmers Institute.  A certificate obtained from the Chalmers Institute states that Mr Habib's attendance between 7 February and 1 December 2000 was unsatisfactory, being less than 50 per cent.  So far as his academic achievement was concerned, Mr Habib did not complete any assignments during that year and did not sit any exams.  So on no view of the matter could his academic achievement be described as at least satisfactory as required by either the old or new condition.  In any event, the Chalmers Institute did not provide a certificate to the effect that Mr Habib's academic achievement was satisfactory. 

8. His Honour went on to say at par 9:

   “These matters are not disputed by Mr Habib and indeed were conceded at the hearing before the tribunal.”

9. Mr Horan, who appeared as counsel for the respondent on this application, explained that the focus of attention before the Tribunal was on the explanation for these admitted failures to comply.

10. The Tribunal found on that evidence that there was not substantial compliance with condition 8202.  Again, as his Honour described in par 11, the Tribunal said that, while the applicant's brother's sickness may have caused Mr Habib some anguish, it did not justify his failure to attend classes or sit exams.  Accordingly, the Tribunal found that it could not be satisfied that Mr Habib had substantially complied with condition 8202 of his visa.  Mr Habib's failure to satisfy one of the criteria for the grant of the visa required the Tribunal to uphold the decision of the delegate.

11. His Honour then dealt with the complaints made by Mr Habib about the Tribunal's decision, and he concluded at par 25 as follows:

    “Finally, it is necessary to return to the possibility that the tribunal determined the application on the basis that Mr Habib had failed to satisfy new condition 8202.  It may have been in error in that regard.  However, it is clear that the analysis undertaken and the conclusion reached by the tribunal would be the same if it had regard to the former condition 8202.  Put another way, if, as I suspect, the tribunal found Mr Habib had failed to comply with the new condition 8202, the reasoning that lead it to that conclusion would require it to find Mr Habib did not satisfy old condition 8202.  In that circumstance, even if the tribunal did err in considering the application on the basis of new condition 8202, there would be no point in remitting the matter for reconsideration because the result would be the same.”

12. His Honour then dismissed the application with costs. 

13. I would ordinarily be slow to refuse an extension of time in circumstances where the delay was so short, there was no prejudice to the respondent and there was a reasonable excuse proffered for the delay.  However, where a court is satisfied that there would be no purpose in allowing the appeal to proceed because, as a matter of law, the appeal could not succeed, then it is appropriate that such application for leave be refused.  That is the position, in my view, in this case.

14. The applicant states in his proposed notice of appeal the ground of appeal in the following way:

    “In the decision Honourable Judge says that MRT applied new condition of 8202, which was wrong to do, but he still did not send the matter to MRT because he thought that result will be the same, which is wrong.  It’s a Pre-Judgment [sic] of the matter.  He did not accept evidences [sic] as to the matter already before MRT.”

15. It is clear from this ground that the applicant seeks to rely on the change in form of condition 8202 referred to earlier in these reasons.  The problem for this ground is that the only relevant change relates to a matter or matters which were conceded before the Tribunal.  It was not the case of the applicant that he had attended 80 per cent of the classes, either on a whole year or semester basis, nor that his academic results were satisfactory.  Rather, his case was that he had substantially complied with these requirements because of the personal circumstances relating to his concern about his brother.  On this latter matter, the Tribunal rejected his case.  On the former matter, his case stood in exactly the same position whether the old or the new condition 8202 applied.  In both cases, he manifestly failed to comply.  The Tribunal's decision therefore, as his Honour found, did not turn on the matter which is the subject of the change in the Regulations.

16. Consequently, it is not possible for the applicant to succeed on the appeal on the ground which he seeks to rely upon in the proposed notice of appeal.  Consequently, I should refuse his application for an extension of time.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice NORTH.

Associate:

Dated:             22 November 2002

The applicant appeared in person
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 November 2002
Date of Judgment:	18 November 2002