Masood v Minister for Immigration and Border Protection
[2018] FCA 1026
•11 May 2018
FEDERAL COURT OF AUSTRALIA
Masood v Minister for Immigration and Border Protection [2018] FCA 1026
Appeal from: Application for extension of time: Masood v Minister for Immigration & Anor [2017] FCCA 3085 File number: NSD 2156 of 2017 Judge: YATES J Date of judgment: 11 May 2018 Catchwords: MIGRATION – application for extension of time to appeal – whether proposed appeal meritorious Legislation: Migration Act 1958 (Cth) s 499 Migration Regulations 1994 (Cth) Sch 2, cll 572.223 (repealed), 572.227 (repealed) Date of hearing: 11 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Mr J Pinder of Minter Ellison Counsel for the Second Respondent: The second respondent filed a submitting appearance ORDERS
NSD 2156 of 2017 BETWEEN: FOWAD MASOOD
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
11 MAY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 6 December 2017 be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
The applicant seeks an extension of time within which to file a notice of appeal from a judgment given by the Federal Circuit Court of Australia (the Federal Circuit Court) on 13 November 2017, which dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a temporary student visa.
The Minister accepts that the delay in filing a notice of appeal is short (two days) and that the applicant has provided a sufficient explanation for that delay. Further, the Minister does not contend that he would be prejudiced by the grant of an extension of time, other than in respect of costs. The Minister submitted, however, that the grounds of appeal proposed by the applicant are so lacking in merit that the extension of time should not be granted.
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia on 21 April 2013 on a student (subclass 573) visa. On 16 October 2015, he applied for a student (subclass 572) visa, which is the subject of the present application. A criterion for the grant of this visa is that the Minister be satisfied that the visa applicant is a genuine applicant for entry and stay as a student (referred to as the genuine temporary entrant requirement).
The genuine temporary entry requirement was specified in (then) cl 572.223 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).
Clause 572.223(1)(a) provided:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
…
In considering whether the applicant satisfied the genuine temporary entry requirement, Ministerial Direction No 53 (made under s 499(1) of the Migration Act 1958 (Cth) (the Migration Act)) requires the Tribunal to have regard to a number of factors in relation to (amongst other things):
·the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; and
·other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
On the evidence before it, the Tribunal concluded that, overall, the applicant’s circumstances indicated that he was using the student visa system to maintain residency in Australia, rather than for the purpose of study. Having considered the applicant’s circumstances, immigration history, and other matters it considered relevant, the Tribunal was not satisfied that the applicant genuinely intended to stay in Australia temporarily. It was not satisfied, therefore, that the genuine temporary entry requirement had been made out. The Tribunal concluded that the visa should be refused.
FEDERAL CIRCUIT COURT
In the Federal Circuit Court, the applicant raised three grounds of review.
The first ground was that the Tribunal did not consider the applicant’s case appropriately. The primary judge rejected this ground for the reason that it was, in substance, an attack on the merits of the Tribunal’s decision, rather than a contention that the Tribunal’s decision was affected by jurisdictional error.
The second ground was that the Tribunal did not understand the applicant’s mental stress. The primary judge reasoned that this ground appeared to be, in substance, another attack on the merits of the Tribunal’s decision, rather than a contention that the Tribunal’s decision was affected by jurisdictional error. However, the primary judge also reasoned that this ground could be taken as a contention that the Tribunal failed to consider the applicant’s mental health.
So understood, the primary judge noted [21] of the Tribunal’s Decision Record:
The Tribunal has taken into account the medical evidence provided by the applicant, being a letter from Dr Osman Qadri, dated 9 August 2016. The letter states the applicant is suffering from anxiety and depression due to severe medical problems suffered by his father, and he attended the practice since December 2015 for counselling twice a month until April 2016, and thereafter once a month until June 2016. The letter goes on to state the applicant has been very mentally disturbed and unable to concentrate during this period. The letter fails to outline what the process of diagnosis that employed [sic] for the applicant to reach the finding of anxiety and depression. The Tribunal finds the letter is limited, as it fails to provide an explanation as to why the applicant would be unable to study during the relevant period, and it fails to provide any evidence as to why the applicant completed his treatment in June 2016. Therefore, although the Tribunal has taken this letter into account, it finds it provides limited weight to the applicant’s claims.
Upon his attention being drawn to this paragraph in the Decision Record, the applicant accepted that his contention was that the Tribunal erred by “not accepting the health situation as put forward by him in support of his visa application and application for review”. In light of this contention, the primary judge rejected this ground on the basis that it was clearly directed to the merits of the Tribunal’s decision.
The third ground was directed to the applicant’s apparent dissatisfaction that his application to the Tribunal took eight months to determine, by which time he had assumed that he would be granted the visa he had sought. The primary judge pointed out that the Tribunal’s decision had, in fact, been given on the same day as the applicant had appeared at the hearing before the Tribunal. The primary judge concluded that this ground did not provide a basis for impugning the Tribunal’s decision, even if framed as a want of procedural fairness.
In light of those findings, the primary judge dismissed the application for judicial review, with costs.
THE PROPOSED APPEAL
The applicant’s proposed grounds of appeal to this court are framed as follows:
1.That the Federal Circuit Court Judge made an error of law through application of incorrect principles of law and as a result failed to find that the Administrative Appeals Tribunal (Tribunal) fell into jurisdictional error by not considering relevant materials which sufficiently established and satisfied the ‘exceptional circumstances’ requirement.
2.That the Federal Circuit Court Judge made an error of law by giving consideration to material submitted by the Respondent which could not be supported by evidence.
3.That the Federal Circuit Court Judge made an error of law by finding that the Tribunal had offered procedural fairness.
I note the following matters.
As to Ground 1:
·the “error of law” and the “incorrect legal principles” have not been identified;
·the “relevant materials” (said not to have been considered) have not been identified; and
·there is no “exceptional circumstances” criterion that applied to the visa which the applicant seeks.
As to Ground 2:
·the “material submitted by the Respondent” has not been identified; and
·the basis on which this material “could not be supported by evidence” has not been stated.
As to Ground 3, the “error of law” has not been identified.
On 15 January 2018, a direction was made requiring the applicant to file and serve a written outline of submissions 10 business days before the hearing of the present application. He has not complied with that direction.
The applicant appeared in person at the hearing of this application, assisted by an interpreter. I drew the applicant’s attention to each of the matters I have identified above with respect to his proposed grounds of appeal and invited him to address me on each of those matters, as well as why, more generally, an extension of time should be granted. In that regard, I informed the applicant that the Minister had accepted that the delay in filing a notice of appeal was short; that an adequate explanation had been given for the delay; and that the Minister was not contending that he had suffered prejudice except in relation to the costs of the present application. I also informed the applicant that the focus of the present application was the merits of his proposed grounds of appeal.
ANALYSIS
I am not persuaded that the proposed grounds of appeal have any reasonable prospect of success.
Ground 1 is misdirected to an “exceptional circumstances” requirement. Clause 572.227 of Schedule 2 of the Regulations provides that, subject to certain pre-conditions being satisfied, a subclause 572 visa can be granted upon the applicant establishing “exceptional reasons”. There is no material before me that shows that the applicant applied for a visa on this basis or that he meets the pre-conditions of clause 572.227 in any event. Moreover, and perhaps more importantly for present purposes, the applicant advanced no claim before the Tribunal based on either “exceptional circumstances” or “exceptional reasons” under clause 572.227; nor did he advance any ground of judicial review on these bases before the Federal Circuit Court. For these reasons alone, no appealable error is revealed by Ground 1.
Further, when I asked the applicant about Ground 1, he said that there was no error. He also said that the “relevant materials” referred to in this ground were his medical reports and his father’s medical reports. I directed the applicant’s attention to [21] and [4] of the Tribunal’s Decision Record, which refer to these reports. The applicant accepted that these materials were before the Tribunal but said that he disagreed with the Tribunal’s conclusions. This constituted the “exceptional circumstances” for the purposes of Ground 1. These answers show that the applicant’s complaint is directed to the correctness of the Tribunal’s factual findings and conclusions. This is no more than an attack on the merits of the Tribunal’s decision.
Ground 2 is without foundation. When I asked the applicant about it, he said that the primary judge had made no error. He identified the “materials” as his medical reports and expressed his exasperation that the Tribunal had not accepted his reasons for not completing his studies. No appealable error is revealed.
Ground 3, similarly, does not reveal appealable error. When I asked the applicant about this ground, he said that there was no error.
DISPOSITION
As the proposed grounds of appeal have no reasonable prospect of success, it would be futile to extend time to permit the proposed notice of appeal to be filed. The application for an extension of time filed on 6 December 2017 will be dismissed, with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 6 July 2018
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