Hossen v Minister for Immigration

[2016] FCCA 2989

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSSEN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2989

Catchwords:
MIGRATION – Application for extension of time within which to commence review application – Student (Temporary)(Class TU) visa – where 10 years elapsed between decision of delegate and decision of tribunal – where applicant did not satisfy time of decision criteria – no reasonably arguable grounds of review – application for extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.65, 477(1)

Cases cited:
AZAFX v Federal Circuit Court of Australia [2016] FCA 1139
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Applicant: MOHAMMAD ZAKIR HOSSEN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1714 of 2015

Judgment of: Judge Jarrett

Hearing date: 23 September 2016

Date of Last Submission: 23 September 2016

Delivered at: Melbourne

Delivered on: 23 September 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr Leerdam

Solicitors for the First Respondent: DLA Piper Australia

The Second Respondent entering a submitting appearance

ORDERS

1. The application filed 24 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1714 of 2015

MOHAMMAD ZAKIR HOSSEN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 29 May, 2015, a migration review tribunal delivered a statement of decision and reasons for affirming a decision of a delegate of the Minister that was made on 24 June, 2003, so more than 10 years earlier, to refuse to grant the applicant a Student (Temporary)(Class TU) visa under s.65 of the Migration Act 1958 (Cth).

2. The material before me demonstrates that the lapse of time between the delegate’s decision and the tribunal’s decision is accounted for by a difficulty with the notification to the applicant of the delegate’s decision in 2003.  That difficulty, apparently and for reasons which are not immediately obvious but in any event which are not particularly relevant, was not rectified until 2014.  After the notification difficulty was rectified the applicant made an application for review of the delegate’s decision by a migration review tribunal.  He did that on 17 November, 2014.  The tribunal delivered its reasons for decision and decision on 29 May, 2015.

3. By this application the applicant seeks an extension of time within which to bring an application for review in respect of the tribunal’s decision. He needs an extension of time because he sought to commence his application outside of the 35 day time limit prescribed by s.477(1) of the Migration Act 1958. This Court has power to extend the time within which to bring such an application for judicial review if the Court thinks that it is in the interests of the administration of justice to do so.

4. Whether the making of an order extending the time is in the interests of the administration of justice depends upon a consideration of a number of matters including the length and explanation for the delay in commencing the proceedings; the prejudice, if any, that might be suffered by the respondent to the application; and whether the applicant has any reasonably arguable grounds of review in respect of the tribunal’s decision.  It is also relevant to take into account more generally that time limits are usually to be observed and the impact on other litigants who have abided by time limits and who are waiting for their appeals to be heard.  It is also relevant to take into account the impact upon the court system and its ability to deal with these applications in a timely way.

5. Perhaps the most significant factor to be taken into account and one to which attention is generally drawn is whether the proposed grounds of review are reasonably arguable. 

6. Before I deal with that matter, it is fair to say that the delay in this case of some three weeks or so is relatively modest and there is an explanation for it.  In its decision record of 29 May, 2015 the tribunal under the heading “ministerial referral” makes some observations about the applicant’s case and suggested that the applicant might still make a request directly to the Minister for ministerial intervention in his case notwithstanding that the tribunal itself did not decide to refer the applicant’s case to the Minister.

7. The Minister, of course, has a discretionary power to grant the applicant the relevant visa notwithstanding that his application was otherwise unsuccessful.  The applicant took up the suggestion by the tribunal and he made an application for ministerial intervention on 26 June, 2015.  That was dealt with promptly and refused on 14 July, 2015.  These proceedings were then commenced on 24 July, 2015.  The applicant acted promptly after his application for ministerial intervention was refused.  I am satisfied that there is a reasonable explanation for the delay in commencing these proceedings.

8. The Minister, for his part, does not suggest that there is any prejudice to him if the extension of time that is sought is granted. 

9. I turn, then, to the question of whether the applicant’s case is reasonably arguable.  On that point, it is pertinent to observe that the task of the Court is one which is to be undertaken at a generally impressionistic level.  It is inappropriate for the Court to embark upon a full and careful examination of the grounds of review proposed by the applicant.  See, for example, the decisions in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 and AZAFX v Federal Circuit Court of Australia [2016] FCA 1139.

10. The tribunal’s decision in this case was preceded by a letter from the tribunal to the applicant on 15 April, 2015.  The letter invited the applicant to appear before the tribunal to give evidence and present arguments relating to the issues in his case.  The letter required the applicant to provide information to the tribunal “so that a decision can be made as quickly as possible”.  Thereafter in the letter, commencing at the bottom of page 1 and going over into page 2 is a list of documents that the tribunal specifically brought to the applicant’s attention that the tribunal wished to have for the purposes of the application.  Items 1 and 2 in the list concerned the applicant’s current enrolment in a course or an offer of enrolment in a registered course “as required for the grant of the Student visa”. 

11. The tribunal conducted a hearing where the applicant appeared to give evidence and present arguments.  That occurred on 4 May, 2015.  The applicant was represented in relation to the review by a registered migration agent and, as I have already observed, he made an application for ministerial intervention after the tribunal’s decision.  That application was prosecuted by lawyers on his behalf.

12. It is trite that to secure the grant of the relevant visa the applicant needed to meet the criteria that were prescribed for it.  As is often the case, the Migration Regulations 1994 (Cth) prescribed criteria that needed to be met at the time of the application for the visa and criteria that needed to be met at the time of the decision on the application for the visa. In this particular case that assumes some significance because there was such a significant lapse of time between the time of application for the visa and when a decision on the visa application was ultimately made by the tribunal. But notwithstanding that lapse of time the relevant criteria needed to be met. If the criteria were not met, the tribunal, exercising the Minister’s powers under s.65 of the Migration Act, had no power to grant the visa.

13. At paragraph 9 of the tribunal’s reasons for decision and after referring to the letter to which I have already referred, some submissions and other material received from the applicant the tribunal said this:

    The Tribunal asked if the applicant was enrolled to study.  The applicant stated he was not enrolled.  The issue before the delegate was whether the applicant met the criterion currently described in 572.223 and 572.225; however, the issue now is whether at the time of this decision the applicant meets the enrolment requirements for a student visa.  With limited exceptions not relevant to this case, clause 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 Regulation 1.40A for the subclass at the time of the application.

    That is the issue to which that part of the tribunal’s letter and hearing invitation to which I have earlier referred was directed. 

14. The tribunal then went on to correctly observe:

    The applicant has not studied or been enrolled to study for an extended period of time.  He has pursued other visa options in the time and is able to apply for the present review of the decision to refuse because of a failure to notify him correctly of the decision to refuse him his Student in the first instance.

    The tribunal proceeds, again correctly in my view, at 14:

    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, clause 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

    The tribunal considered whether there was any evidence that the applicant met the criteria for either a subclass 576 or subclass 580 visa but found that there was not.  For those reasons the decision under review was affirmed. 

15. The application for review in this case states three broad general grounds.  The first is that the tribunal’s decision is affected by an error of law; the second is that the tribunal did not take into account relevant considerations; and the third is that the tribunal failed to accord natural justice.  The application for review gives no content to those very general grounds.  The submissions made to me today by the applicant gave no content to those grounds either. 

16. Having regard to the tribunal’s reasons for decision and the way in which the tribunal dealt with the application I am satisfied that there is no reasonably arguable ground of review.  The tribunal’s decision was demonstrably correct.  The tribunal had no discretion, of course.  It needed to be satisfied that the time of decision criteria identified by it were satisfied by the applicant.  It was not satisfied about those matters and on the evidence before it, nor could it be.  In my view, there are no reasonably arguable grounds of review.  I would go so far as to say that the application for review is hopeless and bound to fail. 

17. In those circumstances and notwithstanding that there is an explanation for the failure to commence the proceedings within the time limited by s.477(1), and notwithstanding the lack of prejudice to the Minister if the extension was granted, I am not satisfied that it is in the interests of the administration of justice for there to be an order that extends the time within which the applicant might commence an application for review.

18. The application is therefore dismissed.

RECORDED:  NOT TRANSCRIBED

1. On applications of this nature costs ordinarily follow the event unless there are special circumstances that would suggest a different order for costs is appropriate.  The applicant says that he does not have the financial resources to meet an order for costs.  But impecuniosity is rarely, if ever, an answer to an order for costs.  It generally does not amount to special circumstances sufficient to warrant a departure from the usual rule that costs should follow the event. 

2. Costs should follow the event in this application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 23 September, 2016.

Date: 18 November, 2016