Khan v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 459
•3 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 459
File number: MLG 1821 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 3 June 2024 Catchwords: MIGRATION – Student visa – Application for an extension of time to commence judicial review application – Whether there was a satisfactory explanation for delay – Where Tribunal considered whether it was satisfied that the Applicant met the genuine temporary entrant criterion under cl. 572.223(1)(a) of Sch. 2 to the Migration Regulations – Where the Tribunal had regard to Ministerial Direction No. 53 – Where the grounds of the substantive judicial review application not reasonably arguable – Where the court was not satisfied that it is necessary in the interests of justice to extend time – Application for extension of time dismissed Legislation: Migration Act 1958 (Cth) ss. 474, 476, 477, 499
Migration Regulations 1994 (Cth) cl. 572.223
Cases cited: BVG17 v. BVH17 [2019] FCAFC 17
Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1, [2022] FCAFC 23
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
MZABP v Minister for Immigration and Border Protection [2015] 242 FCR 585; [2015] FCA 1391
Singh v. Minister for Immigration and Border Protection [2017] FCAFC 195
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 178 ALD 573; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submissions: 9 May 2024 Date of hearing: 9 May 2024 Place: Melbourne Applicant: In person Solicitor for the First Respondent: Mr Gardner of Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1821 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AHMED ALI KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $4,189.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
Mr Khan (the Applicant) seeks an extension of time, under s. 477(2) of the Migration Act 1958 (Cth), to bring his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) not to grant him a Student (Class TU) (Subclass 572) visa.
The Tribunal’s decision was made on 7 May 2018. The 35-day time limit s. 477(1) of the Act prescribes expired on 11 June 2018. The Applicant commenced these proceedings on 22 June 2018, some 11 days later than the 35-day prescribed period.
Before me, the Applicant represented himself. He had the assistance of an interpreter in the Urdu and English languages.
I have had regard to material in the court book (CB1–273). No party relied on any other material.
Matter listed solely as to an extension of time
I canvassed with the parties whether the appropriate approach was to deal with the extension of time application and the substantive application for judicial review as part of one hearing. The Applicant submitted to me that he had prepared only on the basis that the court would deal with the extension of time. Because of the Applicant’s submission, and because the court had listed the matter solely as to the extension of time, this decision deals solely with the Applicant’s application for an extension of time.
EXTENSION OF TIME
The court may extend time under s. 477(2) if it is “necessary” in the interests of justice. “There are no mandatory considerations” (Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] 178 ALD 573; [2022] HCA 28, [12]; [62]). In Tu’uta Katoa, the plurality held:
So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
The plurality in Tu’uta Katoa discussed the decision of Mortimer J (as she then was) in MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at 598-599, [62]-[63]. In its discussion of MZABP, the plurality noted that Mortimer J had held that the subject matter of an application under s. 477(2) is not whether “the applicant will ultimately be successful in challenging the decision under review” (MZABP, [63]; Tu’uta Katoa, [15]).
In MZABP, Her Honour had said, with regard to the circumstances in which an extension of time will be refused because of an assessment of the merits of the underlying application, that it: “will seldom be appropriate to refuse to extend time where a ground of review is properly described as weak as opposed to hopeless” (emphasis added) (MZABP, [63]; cited in Tu’uta Katoa, [15]). Mortimer J continued that on an extension of time application:
the "correct approach" to the assessment of the merits of the proposed application, for the purpose of deciding whether to extend time, "may be expressed by the use of language such as whether a ground is 'arguable', 'reasonably arguable', 'sufficiently arguable' or has 'reasonable prospects of success'
With reference to this passage, the plurality in Tu’uta Katoa at [17] said that “the interests of justice are likely to be advanced by granting the extension of time to an application with some merit, depending, of course, on other relevant factors” (emphasis added). As to whether I should confine my consideration of the merits to an “impressionistic” assessment or consider the merits in greater depth, I may have regard to the merits in “such manner as… appropriate in the circumstances” (Tu’uta Katoa, [19]).
The plurality in Tu’uta Katoa noted that it is an “important fact” that I must be satisfied not just that an extension of time is “desirable”, but I must be satisfied to a higher standard that it is “necessary” in the interests of the administration of justice to make an order extending time under s. 477(2)(b) (Tu’uta Katoa, [13]; [17]).
In this case, the Applicant has proffered an explanation for the delay in institution of proceedings: namely, that the Tribunal had not published its written reasons for decision within the 35 day limit for the commencement of the judicial review proceeding so as to enable him to make a full assessment as to whether to commence a proceeding in the court with the benefit of having read, and considered, those written reasons. If the underlying application was reasonably arguable, even if it was weak, that explanation for delay may have persuaded me to extend time. However, even given that explanation for delay, because the Applicant’s proposed grounds are not reasonably arguable, I am not satisfied it is necessary in the interests of the administration of justice to extend time. It is not in the interests of justice to extend time for the bringing of a review application if the substantive application is not reasonably arguable.
I will next deal sequentially with some of the myriad considerations the plurality in Tu’uta Katoa identified as relevant as far as they are relevant to the current application.
An explanation for delay
The Applicant’s explanation for delay is that as of 11 June 2018 (the 35-day deadline from the date of the Tribunal’s decision) he did not yet have, despite request, a copy of the Tribunal’s written reasons. In his Originating Application he set out his reason for an extension of time as follows:
1.The reason for extension of time is the written records & reason were disclose & posted to the date 13 June 2018. So in this way I was not aware of the reason of the decision & was unable to take any further action to the decision which was notify on 2 May 2018.
[As written]
The sequence of events was as follows.
On 7 May 2018 the Tribunal made an oral decision refusing to grant a visa in the Applicant’s presence and in the presence of an interpreter (CB232).
On 11 May 2018 the Tribunal confirmed in writing that the visa had been refused (CB241).
On or about 16 May 2018, in response to a request, the Tribunal provided to the Applicant’s representative an oral recording (an audio CD) of the Tribunal hearing (CB243).
On 21 May 2018 the Applicant’s representative wrote to the Tribunal “to formally request a written record of the decision made in this case on May 7 2018” (CB 244).
Under cover of a letter dated 13 June 2018, after the deadline for commencing proceedings in this Court is accordance with the 35-day time limit had passed on 11 June 2018, the Tribunal provided the Applicant with the written reasons for its decision (CB246).
As noted, on 22 June 2018, the Applicant commenced his judicial review application in this court.
The First Respondent submitted before me that the written reasons were only a revised version of the oral reasons which had been given on 7 May 2018, analogous to a court’s correction of the transcript following an ex tempore decision. Therefore, the Applicant had heard the substance of the decision and the reasons for it when it was made orally on 7 May 2018. Further, since 16 May 2018 (substantially before the 11 June 2018 deadline) the Applicant had had an audio version of the decision. The Applicant did not submit otherwise.
As noted, the Applicant submitted, by way of an acceptable explanation for delay in commencing the proceeding, that he was unable to make a decision as to whether to bring his judicial review application until after he had had an opportunity to consider the Tribunal’s written reasons which were provided only on 13 June 2018. After the provision of the written reasons, he acted promptly and issued his judicial review application just 9 days later on 22 June 2018.
The desirability of written reasons being available before the deadline for the commencement of proceedings
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, a Federal Court Full Court observed in the context of the deadline for an appeal but in a passage which is equally applicable to the deadline for the commencement of a judicial review proceeding at [26]:
…. while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period.
[Emphasis added]
Subsequently, in BVG17 v BVH17 [2019] FCAFC 17 at [39]-[40], a Full Court, having cited the passage from Singh set out above, held at [41]:
Because of the detrimental effect that significant delay in publishing written reasons potentially has on the exercise of appellate rights, such delays may provide a reasonable excuse for delay in instituting proceedings, depending on the facts of the case.
[Emphasis added]
Although the First Respondent contended that the audio recording was sufficient to enable the Applicant to make a decision whether to commence a judicial review application, the delay in publishing written reasons until after the expiry of the time limit for the commencement of judicial review means that there is a “reasonable excuse for the delay in instituting proceedings” (see BVG17, above).
Any relevant prejudice
The First Respondent did not claim that it suffered any prejudice if an extension of time were granted. The mere absence of prejudice is not a sufficient basis to warrant the grant of an extension of time (Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344; [1984] FCA 176, [21]).
The merits of the application
I turn next to consider the merits of the judicial review application as far as is necessary on the application to extend time. It is convenient to start with the Tribunal’s reasons.
The Tribunal’s reasons
The Tribunal set out in its written reasons that “the issue in the present case” was whether the Applicant met cl. 572.223(1) of Sch. 2 to the Migration Regulations 1994 (Cth) which relevantly stated that an applicant is a genuine applicant for entry and stay as a student because “the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily …” (the genuine temporary entrant criterion or GTE criterion) (CB248, [10]).
The Tribunal noted that “in considering whether the applicant satisfies this criterion” it had to have regard to Ministerial Direction Number 53 (Direction 53), Assessing The Genuine Temporary Entry Criterion For Student Visa Applications, made under s. 499 of the Act (CB249, [11]). That was the correct approach.
The Tribunal’s reasons amply demonstrate that the Tribunal took guidance from Direction 53 as to “the applicant’s circumstances” and the “applicant’s immigration history”.
Each of the matters the Tribunal traversed was a relevant matter. I note the following.
The Tribunal said that (CB251, [32]):
Considering the applicant's circumstances as a whole, including that the applicant has now been living in Australia for more than 7 years, the Tribunal is of the view the applicant is using the student visa program to circumvent the ordinary migration program and to maintain ongoing residence in Australia. The Tribunal considers that the applicant has done this by enrolling in a series of vocational education courses (ranging from' general business, to accounting, to computer networking, to cooking and now to hospitality).
The Tribunal did not accept that the Applicant’s personal ties to Pakistan were an incentive for him to return there. The Tribunal said that it had “only the applicant’s bare assertions that he wants to return to Pakistan to start a business and get married. The Tribunal found the applicant’s assertions unconvincing” (CB251, [33]).
The Tribunal found that (CB251, [34]):
Considering the numerous qualifications that the applicant has, including the Bachelor of Commerce degree he completed prior to coming to Australia, the Tribunal does not accept that the course which the applicant now proposes, the Advanced Diploma of Hospitality, will significantly assist the applicant or to obtain employment or improve his employment prospects in Pakistan… the Tribunal considers the value of the proposed course to the applicant's future is limited.
The Tribunal found that the Applicant’s “conduct in proposing further stay to study where the cost of completing [the] course, in time, fees and lost income, exceeds its value to his future” suggested that he intended to stay in Australia (CB252, [35]).
The Tribunal considered that the Applicant’s skills and knowledge acquired from the courses of study already undertaken provided him with “sufficient skills to handle the hands-on aspects of hospitality businesses, the management aspects of hospitality businesses and the ability to analyse the industry” (CB252, [36]).
The Tribunal found that if it were the Applicant’s intention to stay in Australia temporarily, he would “have departed Australia to set in motion his claimed plan to open a hospitality business” and that “he would not have proposed a further study plan” (CB252, [37]).
With regard to financial evidence, the Tribunal found that the Applicant’s economic circumstances in Australia presented “as a significant incentive for him not to return to Pakistan where he would have a more limited earning capacity” (CB252, [38]).
The Tribunal noted that there was nothing before it “to indicate that the applicant has had visa issues in any other country” (CB252, [39]) and it made no findings against the Applicant based on any potential military service in his home country or economic or political circumstances in Pakistan (CB252, [40]).
Each of the matters set out above was a relevant matter under Direction 53. In all the circumstances, the Tribunal was not satisfied that the Applicant intended genuinely to stay in Australia temporarily and concluded that it was not satisfied that he met cl. 572.223(1) of Sch. 2 to the Regulations.
APPLICATION FOR JUDICAL REVIEW
The proposed substantive judicial review application was as follows:
Tribunal does not consider case on merit considering direction No. 53. Tribunal does not considered all factors mention in direction No. 53 under section 499 of the Migration Act (Assessing the genuine temporary entrant criterion for student visa). Delegate does not consider all factors in the time of decision criteria cl 572.223 clause 572.223. So this case is not decided on merits of these is error in law considering all this in procedural unfairness.
[As written]
Even though on 19 October 2019 the Court made orders that 28 days before the hearing the Applicant file and serve “any amended application with proper particulars of the grounds of the application” and “written submissions”, the Applicant did not amend his substantive application or file written submissions at any time before the hearing before me. I only had the benefit of the Applicant’s Originating Application.
The First Respondent helpfully analysed the Applicant’s proposed substantive judicial review application as comprised of two distinct elements:
(a)Ground 1: Whether the Tribunal erred by not considering all of the facts set out in Direction 53; and
(b)Ground 2: that the delegate erred by not considering all of the factors listed in cl. 573.223.
As already noted in MZABP, in considering the merits on an extension of time application, Mortimer J explained the correct approach is that I ought to consider whether a ground is “arguable,” “reasonably arguable” or “sufficiently arguable” or has “reasonable prospects of success” such that I am satisfied it is necessary in the interests of justice to extend time (MZABP, [63]). The formulations “arguable,” “reasonably arguable” or “sufficiently arguable” or has “reasonable prospects of success” are different ways of expressing the same concept. I should distinguish between a case which has “some merit” (Tu’uta Katoa, [17]) (even if it is a weak case) in which case the interests of justice are likely to be advanced by granting the extension of time (depending on other factors) and a hopeless case in which case it will not be necessary in the interests of justice to extend time (MZABP, [63]).
Ground 1 (that the Tribunal failed to consider all of the factors mentioned in Direction 53) is not “sufficiently arguable” that I am satisfied that it is necessary in the interests of the administration of justice to extend time.
As the Minister submitted, and I accept, the Tribunal understood it had to comply with Direction 53 and consider the factors mentioned in it.
The Tribunal expressly noted its obligation to have regard to Direction 53 (CB249, [11]). Direction 53 is a guide, not a checklist. The Tribunal did not, and did not have to, in its reasons, “laboriously set out each of the factors and deal with them seriatim” (Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, [106]). The Tribunal’s approach was in accordance with authority (Kumar, [105]–[108]).
I have not been persuaded that there is a reasonably arguable error in the Tribunal’s approach in using Direction 53 as a guide, having regard to each of those matters set out from the Tribunal’s reasons above, to warrant the grant of an extension of time.
As to Ground 2, the court has no jurisdiction to review the delegate’s decision as it is a primary decision within the meaning of s. 476(2)(a) of the Act.
To the extent that the Applicant intends to take issue with the Tribunal’s decision (not the delegate’s decision) because it did not observe the requirements of cl. 572.223 of Sch. 2 to the Regulations, also having regard to the matters set out above distilled from the Tribunal’s reasons, the Tribunal considered each of the factors identified under cl. 572.223(1)(a).
Because the Tribunal found that it was not satisfied that the Applicant met the requirements of cl. 572.223(1)(a), its decisional task was at an end. It was not obliged further to consider whether the Applicant met the requirements of cls. 572.223(1)(b) or (c) (Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1, [2022] FCAFC 23, [35]). The Tribunal had to be satisfied that Applicant met each of the mandatory criteria cumulatively to qualify for the visa.
Ground 2 is not reasonably arguable such that I am satisfied that it is necessary in the interests of the administration of justice to extend time.
DISPOSITION
The statutory question as to whether to extend time does not turn upon whether there is a reasonable explanation for delay but turns on whether I am satisfied it is necessary in the interests of the administration of justice to extend time.
In all of the circumstances, it is not in the interests of justice to extend time, even though the delay is short, the Applicant has proffered an explanation for the delay and there is no relevant prejudice to the Minister. The substantive grounds of the Applicant’s application are not reasonably arguable such that I am satisfied that it is necessary in the interests of the administration of justice to extend time.
I will dismiss the application for an extension of time. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $4,189 which was the amount the First Respondent sought and which is a fair indemnity for the costs of the First Respondent as the successful party.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 3 June 2024
0
8
2