Hasnat v Minister for Immigration and Border Protection
[2016] FCA 181
•3 March 2016
FEDERAL COURT OF AUSTRALIA
Hasnat v Minister for Immigration & Border Protection [2016] FCA 181
Appeal from: Hasnat v Minister for Immigration & Anor [2015] FCCA 2560 File number(s): NSD 1214 of 2015 Judge(s): MARKOVIC J Date of judgment: 3 March 2016 Legislation: Federal Court Rules 2011 r 35.13
Federal Court of Australia Act 1976 (Cth) s 24(1A)Migration Regulations 1994 (Cth) Sch 2 cl 572.223, Sch 5 cl 5A405(1)(a)
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 18 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 38 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Sophie Given, Sparke Helmore ORDERS
NSD 1214 of 2015 BETWEEN: MOHAMMED ABUL HASNAT
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
3 MARCH 2016
THE COURT ORDERS THAT:
1.The application for extension of time and leave to appeal from the judgment of the Federal Circuit Court of Australia given on 24 September 2015 be dismissed.
2.The applicant pay the first respondents costs
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
INTRODUCTION
This is an application for extension of time and leave to appeal from a judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) given and made on 24 September 2015 dismissing the applicant’s application for judicial review of a decision of the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal): Hasnat v Minister for Immigration & Anor [2015] FCCA 2560 (Hasnat).
The order of the primary judge dismissing the proceedings was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (FCCA Rules). Accordingly it is interlocutory and, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave of the Court to appeal.
The time within which an application for leave to appeal from an interlocutory judgment must be filed is 14 days from the date of judgment or order: see r 35.13 of Federal Court Rules 2011 (FC Rules). Any application for leave to appeal should have been filed by 8 October 2015. The applicant filed his application for leave to appeal on 12 October 2015 which is 4 days out of time. Accordingly the applicant also needs an order extending the time to seek leave to appeal: see r 35.15 FC Rules.
BACKGROUND
The applicant is a citizen of Bangladesh. He applied for a Student (Temporary) (Class TU) visa on 2 August 2010. On 14 September 2010, a delegate of the first respondent (the Minister) refused to grant the visa.
The applicant then applied to the Tribunal for review of that decision. A Tribunal (differently constituted) affirmed the decision. That decision was returned to the Tribunal by consent orders made by the Federal Circuit Court because of a failure to adjourn the proceedings to allow the applicant to provide additional documents.
The applicant subsequently provided the additional documents to the Tribunal and attended a hearing to give evidence.
On 7 August 2014 the Tribunal made its decision affirming the decision under review.
LEGISLATIVE SCHEME
The applicant’s entitlement to the Student visa was dependant on him satisfying the requirements of c1 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). Subclause 572.223(1) requires that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subcl 572.223(2). That subclause has three requirements. Relevantly for the purposes of consideration of this matter it requires the applicant to give the Minister evidence in accordance with the requirements mentioned in Sch 5A for the highest assessment level for the applicant.
The term “assessment level” is defined in reg 1.03 of the Regulations to mean for a student visa “the level of assessment specified for a kind of eligible passport for the student visa under reg 1.41”.
Regulation 1.41(1) provides that the “Minister must specify, by instrument in writing, an assessment level for a kind of eligible passport, in relation to each subclass of student visa, to which an applicant for a student visa who seeks to satisfy the primary criteria will be subject”. The term “eligible passport” is defined in subreg 1.40(1). A passport is an eligible passport if it is a valid passport of a kind specified by the Minister in an instrument in writing for subreg 1.40(1) and the conditions, if any, specified by the Minister in an instrument in writing for passports of that kind are satisfied.
The instrument in writing that applied to the applicant is Instrument IMMI 10/003 dated 16 March 2010 which commenced on 27 March 2010. It specified Bangladeshi passports as eligible passports and assigned assessment level 4 for such passports. Thus the applicant had to satisfy the requirements set out in Sch 5A for assessment level 4. Those requirements were found in Div 2 in Pt 4 of Sch 5A to the Regulations.
Division 2 of Sch 5A sets out a number of requirements including, at cl 5A405, requirements relating to financial capacity. The primary judge summarised those requirements as they relate to the applicant at [5] of his judgment:
Clause 5A405 of Schedule 5A to the Regulations prescribed certain requirements relating to financial capacity for assessment level 4. Relevant to the application before the Court are the requirements specified in paragraph 1(a) of cl 5A405. That paragraph required the applicant to provide evidence that the applicant has “funds from an acceptable source” that are sufficient to meet three classes of expenses for the first 36 months, these being course fees, living costs, and school costs. Also relevant is paragraph 1(b) of cl 5A405 which required the applicant to provide evidence that the applicant had funds from an acceptable source that are sufficient to meet travel costs. The expressions “course fees” for an applicant in relation to a period is defined in cl 5A101 to mean “the fees for each course proposed to be undertaken by the applicant in the period, as indicated by the proposed education providers in a letter or other document”. The expression living costs in relation to assessments other than levels 1, 2, and 3 is defined in cl 5A104 to mean, among other things, an amount specified by the Minister in an instrument in writing for that clause (the basic rate). The relevant instrument is IMMI 09/138, which commenced on 1 January 2010. It specified AUD18,000 as the basic rate. The expression “funds from an acceptable source” is defined in subclause 5A405(2) to mean, among other things, “a money deposit that an acceptable individual has held for at least 6 months before the date of the application”. The expression “acceptable person” is defined to mean, among other things, the applicant or the applicant's parents.
THE TRIBUNAL DECISION
The Tribunal identified the applicant’s assessment level for subclass 572 as assessment level 4 and relevantly identified that the evidentiary requirements for that assessment level were set out in Pt 4 of Sch 5A.
The Tribunal was satisfied that the applicant met the requirements of cl 5A404(a) relating to English language ability. The Tribunal then considered the requirements of cl 5A405(1)(a) relating to financial capacity.
By cl 5A405(1)(a), the applicant had to demonstrate that he had “funds from an acceptable source” sufficient to meet the specified expenses for the first 36 months of the visa. The term “funds from an acceptable source” included a money deposit that an “acceptable individual” has held for at least 6 months immediately before the date of the application. An “acceptable individual” was defined to include, among others, an applicant’s parents or siblings.
The Tribunal discussed the relevant expenses at the time of the hearing with the applicant by reference to an assessment of remaining course fees, living costs and travel costs. Based on the evidence provided by the applicant the Tribunal found that:
(1)the funds held by the applicant’s father were no longer available;
(2)the funds held in bank accounts by the applicant’s mother and sister and by the applicant were insufficient to meet the relevant expenses. That was so even if they were combined with the father’s funds which were no longer available.
The Tribunal noted that the applicant was given more time to provide further evidence of financial capacity but did not do so.
The Tribunal therefore found that the applicant did not meet the requirements of cl 5A405(1)(a) and consequently failed to satisfy cl 572.223 of Sch 2 to the Regulations.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
By an application filed on 27 August 2014 the applicant sought judicial review of the Tribunal’s decision. That application raised three grounds which are set out at [12] of the primary judge’s judgment:
1.The delegate to the Minister (DIMIA) failed to understand that I am a genuine applicant for stay as a student visa holder.
2.The delegate to the Minister failed to justify that I have access to funds declared according with Schedule 5A.
3.The delegate to the Minister failed understand that I have access to the funds my sponsor has provided.”
On their face, the grounds raised by the applicant in his application were directed to the “delegate”. However, after hearing from the applicant, the primary judge accepted that by use of that word the applicant had intended to refer to the Tribunal and he considered the application on the basis that “delegate” in each of the grounds was a reference to the Tribunal.
The primary judge found that ground 1 was directed to the decision of a previously constituted Tribunal that considered the applicant’s case for review and which was not relevant to the Tribunal’s decision the subject of the application that was before him. However, the primary judge also considered the ground on the basis that it was intended to be directed to the Tribunal’s decision that was the subject of the application before him. On that basis, the primary judge found that there was no arguable claim for the relief the application sought.
The primary judge found that there was no arguable case that the Tribunal failed to understand the issues and that it correctly understood that the issue before it was whether the applicant is a genuine applicant for entry and stay as a student. That issue turned on whether the applicant met the relevant evidentiary requirements prescribed by Sch 5A to the Regulations. The Tribunal found that the applicant was not a genuine applicant for entry and stay as a student because he did not provide evidentiary material that he had funds from an acceptable source sufficient to meet relevant expenses as required by cl 5A405(1)(a) of Sch 5A to the Regulations: Hasnat at [14].
In relation to ground 2 the primary judge understood from the applicant’s submissions that this ground was directed at a failure by the Tribunal to consider documents provided by the applicant to it. The primary judge found that it was “beyond argument” that the Tribunal considered the documents the applicant provided to it: Hasnat at [15].
The primary judge also rejected ground 3 finding that it did not disclose an arguable case for the relief sought. The primary judge observed that the Tribunal did not find that the applicant did not have access to the accounts referred to in the documents the applicant provided to it. Rather, it found the evidence from the applicant’s mother and sister indicated that, in the 6 months before the application was made, the funds available to them were not sufficient to meet the relevant costs and fees: Hasnat at [16].
APPLICATION TO THIS COURT
In his application for extension of time and leave to appeal the applicant sets out the following under the heading Grounds of Application:
That the Federal Circuit Court of Australia made an error in finding that there is no jurisdictional error.
The application includes a further notation by way of explanation of the delay for the filing of the application in the following terms (as written):
As far I know there are 21 days to appeal. But when I came here I got to know it was 14 days. That is why I am doing application for time of extension.
The applicant filed an affidavit affirmed by him on 5 October 2015 in which he relevantly says:
….
2. The Federal Circuit Court of Australia did not give any weight to the supporting documents which I lodged before the Court in support of my claim.
3. The Federal Circuit Court of Australia failed to uphold my natural justice.
The applicant has not provided a draft notice of appeal nor has he filed any written submissions. When invited to do so at the hearing, the applicant declined to make any oral submissions in support of his application.
CONSIDERATION
A grant of leave to appeal will be made where it is established that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered on appeal and where substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [398]-[399].
In relation to the question of the grant of an extension of time for the filing of the application for leave to appeal the Court will consider the explanation for the delay and whether the test to which the Court has regard in relation to the application for leave to appeal has sufficient prospects of being satisfied to warrant granting the extension. As a practical matter, the consideration of the test for leave to appeal and the question that arises in relation to the merits of the proposed appeal for an extension of time are no different.
The explanation advanced by the applicant for the delay is that he made a mistake about the period within which he had to file his application for leave to appeal believing it to be 21 days, rather than 14 days. The applicant is not represented and, given that he filed his application within the 21 day period, in my view the applicant has provided an adequate explanation for the delay. Further, the delay is for a short period of 4 days. The Minister cannot point to any prejudice caused by an extension of time but submits that the application is sufficiently without merit as to not warrant leave being granted. The Minister also submits that the Court is unlikely to be satisfied that sufficient doubt attends the decision of the primary judge to warrant it being reconsidered on appeal.
I turn then to a consideration of the grounds raised by the applicant in his application for extension of time and leave to appeal and in his affidavit affirmed on 5 October 2015.
The ground included in the applicant’s application asserts error on the part of the primary judge in finding that there was no jurisdictional error in the decision of the Tribunal. It does not specify the nature of the error. In the absence of particulars, this ground cannot be sustained.
The first ground raised by the applicant in his affidavit suggests that the primary judge did not give any weight to the supporting documents which the applicant provided to the Court. A copy of the transcript of the hearing before the primary judge has been filed with the Court. In relation to the material that was before the primary judge at the hearing of the applicant’s application the following exchange took place:
HIS HONOUR: ….So in terms of the documents, you have filed an application.
Mr HASNAT: Yes.
HIS HONOUR: And there is an affidavit, which simply attaches the decision of the – is it just the Migration, or the Migration Review Tribunal. Now, in terms of the documents you have filed, that’s it, isn’t it? You have filed no other documents?
Mr HASNAT: No. I’m – it’s - - -
HIS HONOUR: All right. Now, the Minister has prepared a bundle of documents headed Court Book.
Mr HASNAT: This one. Yes.
HIS HONOUR: And do you have any objections to my receiving the documents in the court book into evidence?
Mr HASNAT: No.
HIS HONOUR: All right. So the court book will be marked exhibit CB.
HIS HONOUR: Now, is there any other material you wish to put to the court today, apart from - - -
Mr HASNAT: No.
HIS HONOUR: - - - submissions you wish to make?
Mr HASNAT: That’s all.
HIS HONOUR: All right. Now, Ms Given, that’s the evidentiary material, isn’t it?
Ms Given: That’s so.
It is clear that, other than the application and affidavit which attached the Tribunal’s decision, no other documents were provided to the primary judge by the applicant. This ground cannot be sustained.
The second ground raised by the applicant in his affidavit is that he was denied natural justice by the primary judge. The Minister submits, and I accept, that the applicant filed his application with the Court below on 27 August 2014 and attended a directions hearing on 8 October 2014 at which time the matter was set down for hearing on 15 September 2015 and the applicant was granted leave to file and serve an amended application and submissions. The applicant did neither. The applicant appeared before the primary judge at the hearing and was given the opportunity to make oral submissions, which he did. The applicant was given a thorough opportunity to be heard. Given that, it cannot be said that the applicant was denied natural justice. This ground has no merit.
CONCLUSION
In my view, the decision of the primary judge is not attended with sufficient doubt to warrant it being reconsidered on appeal. Nor would substantial injustice result if leave were refused, supposing the decision of the primary judge to be wrong. It follows then that there is no basis upon which time ought be extended for the filing of the application for leave to appeal.
I will make orders that the application for extension of time and leave to appeal from the judgment of the Federal Circuit Court of Australia given on 24 September 2015 be dismissed and that the applicant pay the first respondent’s costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic j. Associate:
Dated: 3 March 2016
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