Magar v Minister for Immigration

[2020] FCCA 3407

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAGAR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3407

Catchwords:
MIGRATION – Application for review – delay in filing application – prima facie extension of time – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth)

First Applicant: ANITA THAPA MAGAR

Second Applicant: NETRA BAHADUR PUN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: LNG 58 of 2020

Judgment of: Judge Riethmuller

Hearing date: 11 November 2020

Date of Last Submission: 11 November 2020

Delivered at: Townsville

Delivered on: 11 November 2020

REPRESENTATION

The Applicants appeared in person.

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

LNG 58 of 2020

ANITA THAPA MAGAR

First Applicant

NETRA BAHADUR PUN

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

Overview

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) with respect to a student visa. The application was lodged out of the time provided for under the Migration Act 1958 (Cth), however, as the Minister’s lawyer quite properly concedes, there is a proper explanation for that which shows that the reason for the delay in filing lay with the administration of the Tribunal, in that the notice of the decision was not notified to the applicant in a timely manner. Further, the applicant did file the application for judicial review well within 35 days after the matter was brought to the applicant’s attention. Indeed, the filing was within days of the applicant becoming aware of the decision.

2. This gives rise to a prima facie case for an extension of time, provided that the applicant is able to demonstrate an arguable case. If the applicant is not able to demonstrate an arguable case, then the application is futile and there is little point in providing an extension of time. 

Background

1. The first applicant arrived in Australia in June 2015. She arrived on a dependent’s visa, class 485, which was granted to her in June 2015.  On 4 November 2016, she was granted an onshore student dependent class TU500 visa, which subsequently expired on 15 March 2018. 

2. The current visa application is an application by the applicant for a student visa following on from the expiration of her dependent’s visa.  Her husband is also in Australia and is the second applicant in this matter. He first arrived in Australia in August of 2008 and, although he has visited his home country of Nepal from time to time, he has largely remained in Australia since that time and has completed several courses of study over what is now a 12 year period. 

3. The applicant herself had only studied up until year 12 when in Nepal and said that she wanted to utilise her time in Australia to empower herself through education, although it is not clear why she did not commence studies prior to 2018, when she was here on a visa as a dependent that would have allowed her to study, it seems, since a much earlier time. 

4. The delegate found against the applicant and declined to issue a visa.  The matter was then the subject of a review application in the Tribunal.  When that application came before the Tribunal, the Tribunal wrote to the applicants and invited them to provide additional information and to complete a request for student visa information form that appears at Court Book (‘CB’) page 206. That occurred on 25 November 2019.  Importantly, the applicants were advised that it was a requirement for the visa that one of them must be enrolled in a course of study and that they must demonstrate that they are genuine applicants for entry and stay only as a student. It appears they did not respond to that request for information. The request was repeated on 22 April 2020, a copy of which appears at CB page 216.

5. The online form was completed on 6 May 2020.  In that online form, the applicant set out that they consented to the matter being dealt with without a hearing. Part of the form appears at CB page 219 where it provides:

   Hearing information

   Do you and any other applicants consent to the tribunal deciding the review without a hearing?

   Yes, I/we consent to the tribunal deciding the review without a hearing.

6. Thereafter, there is a number of notes setting out the consequences of the answer that was given and those notes are in the following form:

   Note: If you consent to us deciding your review without a hearing:

   ·You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

   ·We may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once our decision has been made. You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding to this invitation has passed. Additional information may also be given at the end of this form.

   ·If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.

7. Importantly, no certificate of enrolment was provided at that point.  Later the next day an agent notified the Tribunal that the agent had been appointed and was now acting for the applicant in this matter, and a copy of the email and various attachments is at Court Book page 233. The agent did not say in the email that the applicants had changed their mind and sought to have a hearing, nor referred to this issue at all. There does not appear to have been any further relevant correspondence to the Tribunal who, ultimately, on the 21 May 2020, determined the matter on the papers.

8. The Tribunal noted this history of the matter in their reasons, saying, at paragraphs [5] to [7], as follows:

   5. On 22 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing about the course(s) of study she is undertaking and her entry and stay in Australia as a student. The invitation advised that if the information was not provided in writing by the prescribed period, being 6 May 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

   6. In response, the review applicant provided information in writing on 6 May 2020 and indicated that she consented to the Tribunal deciding the review without a hearing. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   7. In these circumstances, the Tribunal has proceeded to make a decision having regard to all the information before it, including the information previously provided by the applicant to the Department.

9. The Tribunal then went on to consider the matter and found that they were not persuaded that the applicant was currently enrolled in a course of study, noting:

   20. The Tribunal notes that while the applicant provided a CoE with her application for review, the date at which this enrolment ends is 20 October 2019, and therefore the CoE is no longer current. The applicant has not provided any other CoEs. There is therefore no evidence before the Tribunal that the applicant is currently enrolled in any approved course of study.

   21. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

   22. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500(Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

Findings

1. At the hearing before me, the applicants point to the difficulties about notification of the decision to demonstrate that there ought to be an extension of time to bring judicial review proceedings. This is articulated in ground 1 of their application which provides:

   The tribunal failed to duly notify the applicant/the applicant’s recipient of the decision within a reasonable period of time, which culminated in the applicant becoming unlawful in Australia. 

2. As set out above, the delay in notifying the applicant provides a sound explanation for why the application was filed out of time and, as conceded by the Minister, the real question is whether or not the applicants have demonstrated an arguable case in order to show that it is appropriate to extend time for the application. 

3. The terms of the case that they put is articulated in ground 2 of their application, which provides:

   The tribunal breached its procedural fairness obligations to the applicant by not giving the applicant/the authorised representative the opportunity collate, ie, confirmation of enrolment (COE) to provide to the tribunal.

4. This ground cannot be sustained when one looks at the course of events that took place at the Tribunal.  The Tribunal clearly sought information relating to a certificate of enrolment from the applicant and sought for the applicant to advise whether or not she would participate in a hearing.  The form that she completed, which appears at CB page 219 and as set out above, clearly states that she does not seek a hearing and that she consents to the Tribunal deciding the review without a hearing. The applicant did not provide a copy of a certificate of enrolment and, indeed, the applicant’s advisor did not either provide such a document, or seek to change the response that the applicant had given and request that there be a hearing. 

5. In these circumstances, the applicant is not able to demonstrate an arguable case with respect to procedural fairness, as articulated in the ground for review, in that she was offered the opportunity to provide material and also notified the Tribunal that she did not seek a hearing.  There cannot be a complaint that the Tribunal has acted unlawfully or inappropriately in these circumstances by not having an oral hearing, but proceeding to determine the matter on the papers. 

6. In the circumstances, I am not persuaded that the applicant has demonstrated a ground that shows any form of arguable case in respect of these proceedings. In these circumstances, it is not appropriate to exercise the discretion to extend the time limit to enable the judicial review proceedings to be brought in this Court. I, therefore, dismiss the current application. 

   [Further argument ensued]

Costs

1. In this matter, the applicants have been entirely unsuccessful.  The matter was listed for a final hearing, although the matters at issue were quite limited as is demonstrated by the reasons set out above. The scale fee for an interlocutory application is $3,737.00, whereas the scale fee for a final hearing is $7,467.00.  Counsel for the Minister quite properly seeks only costs that have been incurred which are $5,400.00.

2. Having regard to the scale and the nature of the case it seems to me that this is an appropriate amount for costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 14 December 2020