Khan v Minister for Immigration
[2019] FCCA 3128
•28 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3128 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 500) visa – application for an extension of time – where minimal delay, satisfactory explanation and lack of prejudice – no merit in substantive application – extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 348, 476, 477 Migration Regulations 1994 (Cth), cl.500.215 of sch.2 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
| Applicant: | MUHAMMAD SABOOR KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 217 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 October 2019 |
| Date of Last Submission: | 28 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 28 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms S Anicic |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 (Cth) be refused.
The applicant pay the first respondent’s costs fixed in the sum of $5,250.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 217 of 2019
| MUHAMMAD SABOOR KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 13 June 2019, the applicant, Mr Khan, applies for an extension of time in which to seek judicial review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) dated 8 April 2019.
The Tribunal found that it had no jurisdiction in relation to the applicant’s purported application for review of a decision of the then Minister for Home Affairs (the “Minister”) made on 28 November 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”).
The applicant has lodged his application in this Court 31 days outside of the 35 day time limit prescribed in s.477(1) of the Migration Act 1958 (Cth) (the “Act”). In order for the Court to consider the substantive application, the applicant must first satisfy the Court that it is in the interests of the administration of justice for him to be granted an extension of time within which to file that application: s.477(2) of the Act.
The Court has before it the substantive application filed by the applicant and supporting affidavit, a Court Book (“CB”) numbering 89 pages (marked as Exhibit 1) and an outline of written submissions and list of authorities filed by the Minister on 21 October 2019.
The applicant appeared before the Court unrepresented. The Court has attempted to assist him in relation to the issues that the Court needs to address and to help him deal with what is obviously a stressful situation for him.
Background
On 13 September 2018 the applicant applied to the former Department of Home Affairs for the visa (CB 1-17).
On 28 November 2018 a delegate of the Minister refused to grant the applicant the visa (CB 52-53). This decision was made on the basis that the applicant did not satisfy cl.500.215 of schedule 2 to the Migration Regulations 1994 which required the applicant to provide the Minister with evidence of adequate arrangements in Australia for health insurance. The applicant was notified of that decision by email.
On 26 December 2018 the applicant applied to the Tribunal for review of the delegate’s decision. However, on 25 January 2019 the Tribunal decided that it had no jurisdiction to review the decision of the delegate as the applicant had filed his application outside of the 21 day time limit (CB 69-70).
The applicant did not seek review of the Tribunal’s decision dated 25 January 2019 in this Court. Instead, on 21 February 2019 the applicant applied to the Tribunal again for a review of the same decision of the delegate (the decision of 28 November 2018) (CB 71-74).
On 8 April 2019 the Tribunal decided that it had no jurisdiction to review the decision of the delegate.
It is this decision that is the subject of the application for judicial review.
Tribunal’s Decision
The Tribunal’s decision appears at CB87 to CB89. The decision in full provides as follows:
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 28 November 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
2. The review application was lodged with the Tribunal on 21 February 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
3. An application for review of the same delegate’s decision was previously made to the Tribunal. The Tribunal made a decision on that application on 25 January 2019. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision: SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein. The Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771.
4. On 16 March 2019 the applicant wrote to the Tribunal in these terms:
Thank you for replying to me regarding my case, I will try my level best to give you all the information I have regarding my case. It all started last year when the university asked me to arrange a meeting with a career counselor, in that meeting I was advised that I should change my current course to a course that is relatively similar to the one I was doing. I followed the instructions that were given to me and lodged a change of course application. However, due to unclear reasons the application was not accepted and i was asked to lodge the application again next semester.
Next semester I lodged the application again in August because my visa was expiring in September 2018. With constant communication with the university via email, I was asking them about the progress of my application to which I got the same reply that it is under process as they were processing my advance standing. After quiet delay I finally got the offer letter along with the advance standing that they gave me considering my previous studies. There was a small issue with the advance standing that I received, a few units were missing. I contacted the university regarding this matter to which they replied to me that the admissions officer who was looking after this case is on holidays and nothing can be done at the moment.
After desperately waiting for him to come back, I contacted the case officer and asked for an appointment to see him as I wanted to discuss my case details with him. I was straight away refused, for unknown reasons. I again contacted the university through student central and briefed them about my case. With their help I lodged the application for the advance standing again and completed the remaining steps to get enrolled in the new course. Everything got sorted out last week, and now I have been enrolled in three units this semester. Sir I only have six (one of those is related to internship at an engineering firm), units left in my degree, which means I will complete my degree by the end of this year. The earlier mistake of lodging the application six days late was a genuine misunderstanding between the dates. I would have never made that mistake intentionally, but I apologise for that sincerely. I have already uploaded the COE in my application, I just got the course planner from the university last week, I will forward you the copy of that. As well as the copy of the medical insurance for the entire period of my studies. I hope this reply will help clear things from my side and provide all the updated information about my case.
If you need any further information regarding anything please let me know.
5. Regardless of this information, as the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal no longer has jurisdiction in relation to that decision.
DECISION
6. The Tribunal does not have jurisdiction in this matter.
Proceedings in this Court
As indicated, the applicant requires an extension of time in which to bring his substantive application. He correctly requested an extension in his application and did so on the following grounds:
1. I have been facing some health issues (doctor’s certificate provided) due to which I lost track of dates. I never intended to do that but made a terrible mistake without realizing these will be the consequences of it.
2. I am also attending university this semester and I have chosen three units (as they were the only three units that I can choose this semester). I am almost through my degree (student planner provided), it is my humble request to please give me an extension so that I can complete my degree.
3. The application for the court was quite complicated it took me some time to understand things properly as I was not taking professional help (the lawyers are very expensive), after completing the application I went to Department of Home Affairs in Perth to submit my documents, they told me that I must send it to Canberra (I sent my application on the address that was provided to me at the Department of Home Affairs Perth Office) (address: level 4, 6 Chan Street Belconnen ACT, 2616. I was not able to submit my application on time. I did not receive any reply from there so I am applying again through e lodgement.
By orders of a Registrar of this Court, the applicant was given an opportunity to file an amended application, further affidavit evidence and an outline of submissions. No written submissions were provided. The Minister filed written submissions in accordance with those orders.
The Court notes, however, that on 25 October 2019 (outside of the time prescribed by the Registrar’s orders but admitted into evidence in this Court), the applicant filed an affidavit (affirmed 23 October 2019) containing a “Final Statement” in the following terms:
I have read and understood all the previous documents that were uploaded by the court, this is my last statement before my hearing on Monday October 28, 2019. I just want to take this opportunity and just explain a few things which will explain my side of the story.
As I have mentioned my circumstances in my previous emails to the Immigration department and the Federal Court, a copy of my previous emails is present in the green book that I received. This statement contains the updates on my case after I lodged my application in the federal court.
As I have mentioned previously, I was going through some personal issues last year (June 2018), due to which everything in my life was affected. I was suffering from severe Insomnia, anxiety and stress which made it difficult for me to coop up with my day to day life and it affected everything. I have performed bad in university twice; I failed all my units that semester because my mental health was not good and my performance for semester 1 2018 was poor. I also faced the similar fate in semester 1 2019, due to stress and anxiety caused by my visa status and rejection of my review application in the tribunal. I was not able to perform well; my mind was stressing over the situation (I filed my case in the federal court without any legal assistance). My circumstances were not so good that I would be to afford a lawyer, this was the sole reason my application was lodged after a delay because I did not know the proper procedure to launch the application. I also went to the immigration department and they guided me to send the application documents to Canberra. That was a mistake because the documents were supposed to be lodged online, due to this misunderstanding my application was lodged late. As the case progressed, I enrolled myself in semester 2 2019 in one unit (that was the only unit that was offered this semester). In the meanwhile, I discussed my case with the university; and they have issued me an official letter, which explains why there was a delay in processing my change of course application. I was constant contact with the university; and I was not responsible for the delays and my advance standing was not processed properly. I got the COE after 7 months in January 2019, I purchased the health insurance for the required time period. I have also applied for advance standing for three units, for 1 unit the application was accepted and the application for 2 more units is still under process.
I just want to state that my mistake was just that I lodged the review application in the tribunal late, as during that period I was under mental stress. I am a genuine student and I just want to complete my studies, I hit the rock bottom in my life twice. One was during august 2018 and the second was June 2019, after these occasions I gathered myself again and continued, I am so near to my goal and due to this complication, I was not able to concentrate on my studies. It is my humble request to you to please just give me the opportunity to complete my studies so that my hard work of 7 years is not wasted.
The Court has checked the Court file for the “emails to the Federal Court”. No emails have been sent to the Court in relation to this matter. However, emails to the “Immigration Department” are, however, before the Court and referenced in the Court Book.
The first issue the Court must address is whether the applicant should be granted an extension of time within which to file his substantive judicial review application.
At the hearing the Court explained to Mr Khan that the factors to be considered in relation to whether to grant an extension of time are not exhaustive. However, the Court will generally look at the following factors:
a)length of delay and whether the explanation for the delay is adequate;
b)any prejudice if the extension were to be granted or not granted; and
c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The Court allowed Mr Khan an opportunity to comment on each of these factors and anything else he wished to draw to the Court’s attention. His submissions are discussed in the consideration that follows.
Delay and Explanation
The Tribunal’s decision is dated 8 April 2019. The date by which the applicant had to lodge his judicial review application was 13 May 2019. The application was, therefore, 31 days late.
The Court accepts that a limitation provision is the general rule; an extension provision is the exception to it and also that limitation periods ought not to be treated lightly: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
However, the delay here is quite short. It is only 31 days. This weighs in favour of an extension of time being granted.
The applicant’s explanation for the delay appears to be that he was not in a good state of mind following the Tribunal’s decision and that, as he did not have a lawyer and had to file the application himself, he sought advice from the Minister’s department. Unfortunately, they misdirected him as to where to send his application for judicial review.
The applicant also refers to not being able to afford a lawyer to prepare his application and to his having to do much of the work that he did by himself. The Court notes that there is no right to legal representation in judicial review proceedings under the Act. Nor is a lack of legal representation a sufficient explanation alone for an extension of time: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [27], [32] and [36]; Manna v Minister for Immigration & Citizenship [2013] FCA 400 at [17].
The Minister submits (in written submissions) that in circumstances where the applicant has not provided any evidence of his health issues the Court cannot be satisfied that such impeded his ability to file an application for judicial review.
Although the Minister is correct to assert there is no medical evidence, the Court does accept as genuine the applicant’s assertion that he was not in a good mental state of mind following the Tribunal’s decision. The Court has no reason to doubt him in that regard. The Court also notes that the applicant has not claimed that he was ignorant of the time limit. Rather, he simply made a mistake due to the stress he was experiencing at the time. The Court accepts this as entirely plausible.
The applicant also asserts that he sent his judicial review application to Canberra, as incorrectly directed by the Minister’s department (see applicant’s affidavit affirmed 23 October 2019). The Minister did not challenge this assertion. On that basis, the Court considers that this explains the delay to some extent.
Noting the applicant’s lack of legal representation combined with his mental health issues at the time and the fact that he had made inquiries and did legitimately attempted to lodge the judicial review application (albeit incorrectly), the Court accepts the explanation for the delay as satisfactory.
This favours granting the extension of time.
Prejudice
The Minister does not claim any specific prejudice.
Overall, the lack of prejudice to the Minister weighs in favour of granting an extension of time.
Merits
In circumstances where the delay, explanation and prejudice do not weigh against an extension being granted, the determinative factor in determining whether to grant an extension is whether the proposed application has merit. It will rarely be appropriate or in the interests of the administration of justice to grant an extension of time where there is no reasonable prospects of the substantive application succeeding.
The judicial review application contains three lengthy grounds:
1. The first decision I got for my student visa refusal was on 28 November 2018, during that period I had applied for a change of course application in my university (application lodged in august 2018 because previous application was not accepted which was lodged during first semester of 2018). My change of course application was accepted in January 2019, after so much delay because of reasons unknown to me. I was in constant contact with the university through out this period, asking them about the progress of my application. After getting the admission in the new course my study period got reduced, my previous COE was for two and a half years and the new one is for only one and a half year. When my student visa got refused, the reason given was that I have not provided the health insurance for the time period stated on my COE. I was trying to solve my problem with the university so that I would not have to pay extra money for the health insurance as my course duration was reduced. The delay from the university made it not possible for me to provide the required documentation on time.
2. From August 2018, my anxiety and stress levels were also high, I was facing some problems during that period. It was really hard for me to handle the situation, I also lost track of the dates because the decision letter said 21 days (time to apply for appeal) and 35 days (expiry for bridging visa). I got confused in these two and made a mistake of thinking that I can apply for appeal within 35 days. My first appeal application to the AAT was a bit late, the decision I got from them stated that the matter is not in their hands now. After receiving the result, I lodged another appeal application following the instructions given on the refusal letter. The second time I also received the same reply that this case is not under our jurisdiction and I must file the case in the Australian Federal Circuit Court.
3. My degree is almost finished I just need little more time to complete my remaining units. I have been in Australia for seven years and I have been studying without any breaks and never deferred a semester. Currently I am enrolled in three units and I have exams coming in June 2019. I have worked so much hard for all this; it was due to the health issues things got a bit delayed. I am a hardworking student and just need one more semester to complete my degree, hopefully by the end of this year I would be able to complete my degree
Noting the remarks of the Federal Court (in particular, in Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7] in a non-protection visa context) that it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist him, the Court explained that, in determining whether the substantive application had merit, the Court needs to look at whether there is an argument that the Tribunal has engaged in jurisdictional error.
It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the Tribunal identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the Tribunal ignores relevant material: Craig at [198];
c)where the Tribunal relies on irrelevant material: Craig at [198];
d)where the Tribunal fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the Tribunal shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, it cannot grant the visa the applicant now seek. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in error of the sort outlined above.
Unfortunately, Mr Khan’s submissions did not assist him as they did not address the sole issue before this Court – that being whether jurisdictional error is evident. In effect, Mr Khan pleaded for the Court to give him an opportunity to finish his studies
The Court is sympathetic. Mr Khan has clearly had a very difficult time of late. Unfortunately, the Court cannot assist him as the submissions provided today and the evidence before the Court does not evidence jurisdictional error on the part of the Tribunal.
Ground 1
Ground 1 is misconceived. The applicant is referring to the findings of the delegate. This Court has no jurisdiction to review the decision of the delegate: the Act, s.476(2) and (4).
To the extent that Mr Khan suggests it was the his university’s fault that he did not meet the visa requirements at the time of the delegate’s decision, the Court, again, sympathises – particularly where the applicant attempted to explain this to the delegate.
Unfortunately, however, this Court cannot assist in this regard. As indicated, the Court does not have jurisdiction to review the delegate’s decision. The recourse for the applicant here was to apply to the Tribunal and provide sufficient information. Unfortunately, the applicant did not do so in the prescribed time period -- an error which Mr Khan regrets but which he himself admits.
Ground 1, accordingly, is without merit.
Ground 2
Ground 2 and a substantial part of the applicant’s affidavit were directed to the reason for him filing the application in the Tribunal late on the first occasion. This, of course, resulted in the first Tribunal decision finding that the Tribunal did not have jurisdiction.
For the benefit of the applicant, the Court will consider if he was appropriately notified of his appeal rights to the Tribunal. He suggests that he believed he had 35 days, as opposed to 21 days to appeal to the Tribunal.
The notification letter from the Minister’s department that was attached to the delegate’s decision was the subject of extensive consideration in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”). Mr Khan does not dispute having received this notification. Rather, he says he was mistaken in believing he had 35 days to apply.
Here, the notification letter clearly conveyed to Mr Khan the time in which he could appeal to the Tribunal. Here, the letter clearly indicated under the heading “Review Rights” that he had 21 days to apply for review to the Tribunal and under the heading “Receiving this Letter” it was specifically stated that having received the letter by email he was taken to have received it at the end of the day it was transmitted.
The notification letter in this case does not suffer the same deficiencies as the letter in DFQ17. Indeed, the letter here appears to have remedied the deficiencies identified in DFQ17.
Mr Khan says his mistake was based upon his state of mind at the time. He misunderstood the reference to “35 days” in the notification letter. It is true that the notification letter refers to a period of “35 days”. This, however, references the expiry of any bridging visa that he holds and was contained under the heading “Your Immigration Status”. While Mr Khan may have misunderstood the letter, and this is understandable, this was not as a result of any lack of clarity in the letter. Rather, it was as a result of his own unfortunate inadvertence.
A person exercising a reasonable amount of care when reading the letter as a whole would clearly be alerted to the fact that an application for review to the Tribunal had to have been lodged within 21 calendar days from the date of the email: Ali v Minister for Home Affairs [2019] FCA 1102 at [29].
The notification letter accorded with s.66 of the Act and Mr Khan, most regrettably, lodged his application after the 21-day period.
While Mr Khan provided the Tribunal with an explanation for the delay, the simple fact is that where an application to the Tribunal is lodged outside the time prescribed and in circumstances where the applicant was validly notified of the delegate’s decision, there is no discretion to extend time: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
There is no error in the Tribunal’s decision dated 25 January 2019, and ground 2 accordingly has insufficient merit.
Ground 3
Ground 3 is not a ground of review. Rather, it is a plea to the Court for relief it cannot grant.
The Court wishes to emphasise that it does not doubt that Mr Khan has worked extraordinarily hard to complete his studies. Unfortunately, this does not have bearing on the Court’s decision on review.
Ground 3, accordingly, is without merit.
Otherwise
The Minister in its role as a model litigant has conceded that the Tribunal’s decision is, in fact, based on an incorrect understanding of the law.
The Tribunal determined that it did not have jurisdiction because a review under s.348 had already been undertaken. This is incorrect. As noted in SZULH v Minister for Immigration & Border Protection [2015] FCA 835 at [17], a review under s.348 cannot be carried out where no valid application has been lodged. In circumstances where no valid application was made as it was lodged out of time (see s.347(b) of the Act), the Tribunal asserting that it did not have jurisdiction because a “valid” review had already been undertaken was, in fact, incorrect.
However, while the Tribunal has erred in respect of its reasoning for why it did not have jurisdiction, the Minister correctly points out that no different decision could be made on remittal. The application to the Tribunal would still be invalid as it was lodged out of time. The Tribunal would still not have jurisdiction. Hence, while an error exists here it cannot be said to be jurisdictional if there would have been no difference to the decision made. That is the case here: Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 at [36] per Kiefel CJ, Gageler and Keane JJ.
In circumstances where any remittal would offer no different outcome, the application has no reasonable prospect of success and there would be no utility in the applicant being granted an extension of time.
Conclusion
Notwithstanding the insignificant delay, satisfactory explanation and lack of prejudice to the Minister, the Court is not satisfied that it is in the interests of the administration of justice to grant an extension of time as there would be no utility in granting the applicant the relief he seeks.
The Court does sympathise with the evidence given by the applicant and understands the submissions he has given the Court today. He has obviously undertaken his studies in this country with the genuine intention to complete them and to succeed.
Unfortunately, this Court cannot assist him as there is no evidence of jurisdictional error, and as explained to Mr Khan that is the only issue this Court can look at.
The application for an extension of time is, therefore, refused.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 November 2019
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