Haider v Minister for Immigration and Border Protection

[2016] FCA 1369

FEDERAL COURT OF AUSTRALIA

Haider v Minister for Immigration and Border Protection [2016] FCA 1369

Appeal from:

Application for Extension of Time:  Haider v Minister for Immigration and Border Protection & Anor [2016] FCCA 1712

File number:

VID 724 of 2016

Judge:

LOGAN J

Date of judgment:

14 November 2016

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – application for an extension of time to seek leave to appeal – where applicant delayed filing application for leave to appeal to seek Ministerial intervention – applicant in default for failing to appear before Federal Circuit Court – no jurisdictional error identified – application dismissed

PRACTICE AND PROCEDURE – default – application for an extension of time to seek leave to appeal – where applicant delayed filing application for leave to appeal to seek Ministerial intervention – applicant in default for failing to appear before Federal Circuit Court – no jurisdictional error identified – application dismissed

Legislation:

Migration Act 1958 (Cth)

Date of hearing:

14 November 2016

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

VID 724 of 2016

BETWEEN:

JAHANZAIB HAIDER

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	14 NOVEMBER 2016

THE COURT ORDERS THAT:

1.The application for an extension of time and associated application for leave to appeal be dismissed.

2.The applicant is to pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. On 20 May 2016, the Federal Circuit Court of Australia (Federal Circuit Court) dismissed with costs an application by the present applicant, Mr Jahanzaib Haider (Mr Haider), for the judicial review of a decision dated 9 February 2015 by the then Migration Review Tribunal (Tribunal).  That Tribunal had affirmed a decision of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant to Mr Haider a Student (Temporary) (class TU) visa under the Migration Act 1958 (Cth) (the Act).

2. The Federal Circuit Court dismissed the judicial review application on the basis that there was no appearance by or on behalf of Mr Haider.  Mr Haider did not make application for leave to appeal within the time prescribed.  His application today is for such leave and an associated extension of time.  The application was filed on 29 June 2016. 

3. It is apparent from Mr Haider’s supporting affidavit that there are two reasons why the application was not filed within time.  The first is an apprehension on his part (in reality, a misapprehension) in relation to the status of the reasons for judgment that had been delivered orally.  He was, understandably, but erroneously, awaiting the receipt of the reasons for judgment as revised from transcript by the learned primary judge.  The second reason is that he availed himself initially of an opportunity present in the Act to seek the personal decision of the Minister in relation to his visa.  It is fair to say that he initiated his application for an extension of time promptly after the receipt of an adverse decision by the Minister in relation to whether there would be any personal decision made on the subject of a grant of visa to him. 

4. The primary judge’s dismissal of the judicial review application on the basis of a failure to appear was in itself unremarkable.  By that I mean an unexplained failure to appear is indicative of a want of prosecution. 

5. Exceptionally, and it would truly be exceptionally, if there were present in the judicial review application, or even more exceptionally otherwise made manifest today, a fundamental jurisdictional error in the Tribunal’s decision, the interests of justice might dictate the granting of an extension of time. 

6. It is difficult, if not impossible, to see any particular prejudice that would attend the Minister by virtue of the delay which occurred as between the expiry of the prescribed period for an application for leave to appeal and 29 June 2016. 

7. There is no draft notice of appeal exhibited either to Mr Haider’s application for an extension of time or his supporting affidavit.  The statement in the filed application with respect to the asserted error is noteworthy for its generality. 

8. It was evident in Mr Haider’s oral submissions that he is personally dissatisfied with the outcome of the proceeding before the Tribunal.  He was not able, though, and this is no indication of any disrespect, to state a particular ground for jurisdictional error in oral submissions.

9. The Tribunal’s reasons turned very much on an assessment of credibility so far as Mr Haider’s intentions in relation to residence in Australia were concerned.  That was an essential criterion in relation to the grant of this particular class of visa.  There was a discrepancy evident in the material before the Tribunal between a statement made by him in a note to the Tribunal of 20 January 2015 with respect to an asserted accident abroad and material otherwise before the Tribunal in the form of departmental movement records which showed that Mr Haider had not left Australia since his arrival on 7 October 2011.  This particular discrepancy was put to him by the Tribunal in writing before the Tribunal made its final decision. 

10. As it transpired, Mr Haider did not attend at the hearing to make submissions.  He did make, via his agent, a response on 5 February 2015 in which he expressed regret and apologised for his actions.  He stated:

    Due to the worst medical condition of my mother, I was so mentally stressed that I could not even think that whatever information I am providing to the department is irrelevant and inappropriate.  Not only that, all that stressed affected my studies and my living as well.

    The Tribunal made an assessment then of Mr Haider’s intentions and formed the view that he was not “a genuine international student”. 

11. The end result, is a value judgment which the Tribunal made and one which, on the material before the Tribunal, was reasonably open.  That being so, the Tribunal’s decision does not appear to me to be attended with unreasonableness, and no other jurisdictional error is manifest. 

12. In these circumstances, there would be no point in granting an extension of time and associated leave to appeal, because the appeal itself would have no reasonable prospect of success.  For these reasons, the application for an extension of time and associated grant of leave to appeal is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:        

Dated:        16 November 2016