Monn v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1164

FEDERAL COURT OF AUSTRALIA

Monn v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1164

PRACTICE AND PROCEDURE - application for extension of time to appeal - whether ‘special reasons’ for the purposes of O 52 r 15(2)

JENNIFER N MONN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Q149 of 2002

COOPER J
BRISBANE
23 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	23 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of the application to be taxed, if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q149 OF 2002

BETWEEN:	JENNIFER N MONN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	COOPER J
DATE:	23 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

1. On 17 September 2002, the applicant filed an application for an Order of Review of a decision of the Migration Review Tribunal (‘the MRT’) affirming a decision of the Minister’s delegate to refuse to grant the applicant a Medical Treatment (Long Stay) Visa (Subclass 685).

2. On 16 April 2003, Dowsett J made the following orders in respect of the application for an Order of Review:

   ‘1.       The application is dismissed.

   2.The Applicant pay the Respondent’s costs of the application and any reserved costs.

   3.        The operation of this order is suspended for seven days.

   4.The Applicant has liberty to apply within seven days to vacate this order, explaining her failure to appear today with appropriate supporting evidence.’

3. On 12 May 2003, the applicant filed a notice of motion seeking ‘that the order made on 16th April 2003 by Dowsett J be vacated to allow the applicant to proceed with her application’.  The application was dismissed by Dowsett J after a hearing on 6 June 2003.  His Honour ordered that the applicant pay the respondent’s costs.  His Honour gave oral reasons for dismissing the notice of motion on 6 June 2003.  Written reasons were certified by his Honour’s associate on 18 July 2003.

4. On 18 July 2003, the applicant filed an application for extension of time to file and serve a notice of appeal from the decision of Dowsett J as she had not filed and served a notice of appeal within the time limited by O 52 r 15 of the Federal Court Rules.

   THE APPLICATION

5. The application was accompanied by a draft notice of appeal which pleaded the following grounds:

   ‘GROUNDS

   3.The Appellant wishes to raise arguments not raised in the Courts and or Tribunals below.

   4.The Appellant has not been provided with the reasons for judgment of Justice Dowsett and so cannot finalise her grounds of appeal until such time as those reasons are made available to her.

   5.The Minister for Immigration is estopped from denying that the Appellant had a valid visa on Wednesday 24 October 2001.

   6.The Minister for Immigration should have acknowledged that visa on Friday 26 October 2001 when the Appellant was required to sign a Bridging E Visa.’

6. On 25 August 2003, the application was argued by pro bono counsel on behalf of the applicant.

7. It was submitted by counsel that the applicant did not have the published reasons of Dowsett J when she lodged her notice of appeal and did not know when they would be published.  However, the material before me satisfies me that the applicant was in Court and heard his Honour’s ex tempore reasons.  There is nothing to suggest that his Honour’s certified reasons departed from the oral judgment which he gave in Court.

8. In his short written judgment, Dowsett J refused to vacate his earlier order because he considered the applicant’s principal application for an order of review was bound to fail. He said [2003] FCA 702:

   ‘[1]     This is a motion to vacate an order which I made on 16 April 2003, dismissing an application for review of a decision of the Migration Review Tribunal.  That order was made when the applicant did not appear.  It is not necessary to go into the circumstances in which she did not appear save to say that there had been considerable prior difficulty in contacting her.  It seemed to me at the time that her failure to appear was not as a result of any incapacity to do so.  I am not persuaded that such view was wrong.  However it is not necessary to go any further into the matter.  It is quite complicated and would require a detailed examination of the Court file.  It is sufficient for present purposes to say that there would be no point in vacating the order unless Ms Monn could demonstrate that there was some reasonably viable point to be ventilated in any such review.  I proceed upon the basis that if she can demonstrate a viable argument I will grant her application to set aside the order notwithstanding my disquiet as to the way in which she has conducted these proceedings in the past.  After listening to her and to the solicitor for the Minister it seems to me to be quite clear that there is no point to be ventilated.

   [2]     A visa of the kind which she seeks is within sub-class 685 which provides for “Medical Treatment (Long Stay)” visas.  Pursuant to par 685.216 an applicant must satisfy criteria 3001 and 3004 in Schedule 3 in order to qualify for such a visa.  In effect, criterion 3001 requires that any application be made within twenty-eight days of, in the present applicant’s case, her ceasing to hold a substantive visa, which event occurred on 21 September 2001.  Criterion 3004 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa for reasons which are beyond her control.  The applicant is unable to satisfy either of these criteria.

   [3]     As to criterion 3001 her application was not made until 30 November 2001, her substantive visa having expired on 21 September.  From her point of view a substantial difficulty arose in that she suffered a car accident on 17 October, that is some twenty-six days after the expiry of her visa.  Indeed, as I understand it, the consequences of that accident led to her seeking the medical treatment visa which is the subject matter of these proceedings.  She says, with some justification, that she was not in a position to apply for the visa on any occasion between 17 October, when she suffered the injury, and 19 October, when the twenty-eight day period expired.  However it seems that there is no mechanism for extending the time prescribed by criterion 3001.  It follows that the applicant is left to seek the favourable exercise of such discretion as resides in the Minister.

   [4]     The applicant is also unable to satisfy criterion 3004.  There seems to be no basis upon which it could be said that the reason for her not holding a substantive visa was because of factors which were beyond her control.  The only visa which she has held expired prior to the accident.  In those circumstances, neither the Department nor the Tribunal could have reached any conclusion other than that the applicant was not entitled to the visa which she sought.

   [5]     The grounds upon which the applicant seeks review of the Tribunal’s decision were extensive and include allegations that she was denied procedural fairness.  When one appreciates the true nature of the issues which were before the Tribunal, it is clear that none of those matters could affect the inevitable outcome.  In those circumstances, there is no point to be ventilated on any application for review.  The motion to vacate the order made on 16 April should be dismissed.  I order that the applicant pay the respondent’s costs of the motion.’

9. The Federal Court Rules enable the Court or a judge to extend time for leave to file and serve a notice of appeal for ‘special reasons’:  O 52 r 15(2). 

10. In the present case, the application to extend was filed forty-two days after Dowsett J made the orders against which the applicant seeks to appeal.  Other than not receiving written reasons, the applicant puts forward no reasons why she did not file her appeal within time.  She does not suggest she did not understand the basis upon which his Honour dismissed the motion.  She does not say, and indeed cannot say, she needed to wait and see the reasons of his Honour because the argument which she wishes to advance on appeal was an argument never advanced before his Honour, nor the MRT.

11. The applicant submits that there has been no inordinate delay, no prejudice to the respondent, and that the interests of justice require that she be allowed to appeal from his Honour’s order so that she can advance in this Court substantive grounds entitling her to remitter of the decision for further consideration.  These circumstances, she submits, are sufficient ‘special reasons’ for the purposes of O 52 r 15(2).

12. The applicant does not seek to make out any basis upon which the judgment of Dowsett J miscarried.  Instead, she seeks to have his Honour’s orders set aside on the basis of a new argument.

13. The arguments which the applicant filed in Court in support of her substantive application were as follows:

    ‘Why the Tribunal Hearing should be set aside:

    II.Applicant should be taken to have met requirements of Schedule 3 Criteria 3001 because of the provisions of Criteria 3004(c).

    III.It is submitted that Schedule 3, 3001 gives discretion to waive the 28 day time period, especially having regard to 3004.

    IV.It is the Applicant’s contention that the decision of the MRT should be overturned despite any interpretation of Sub-Section 474(1) of the Migration Act to the contrary because the conduct of the MRT hearing exhibited bad faith and was therefore not bona fide.

    V.Despite several Freedom of Information applications the whole of the Departmental file was not made available to the Applicant.  Part of the file was withheld on the basis that it “would involve the unreasonable disclosure of personal information about any person”.  At the MRT hearing the Applicant sought inspection of the whole of the Departmental file, which request was refused.  It is believed that this section of the file contains matters prejudicial to the Applicant yet the Applicant was not given the opportunity by the Tribunal to know of and to address these matters.  This act in itself of the Tribunal disadvantaged the Applicant in the presentation of her case before the Tribunal, and yet the matter may well have affected the Tribunal’s attitude towards the Applicant’s case, and by virtue of this toward the Applicant herself.

    VI.It is apparent from the transcript that the Tribunal gave undue emphasis to the contents of a letter from South Brisbane Immigration Legal Services and drew an inference from that letter that the Applicant was “canvassing” for ways to remain in Australia.  The letter, fairly read, does not support such an inference.

    VII.The Tribunal Member adopted an intimidating attitude towards the Applicant, was impatient towards her, and showed exasperation.  The Applicant was given the impression that the member from the outset thought that the Applicant was wasting the Tribunal’s time.  Instances of this appear in the transcript.

    VIII.    If the Applicant is correct in her assumption that the undisclosed material is prejudicial to her, then it is clear that the Tribunal Member’s attitude is likely to have been brought about by this material, the content of which has been withheld from the Applicant who has therefore been prejudiced by this action of the Tribunal and has, by the actions of the Tribunal, been prevented from putting her case fully.

    IX.The purpose of the Migration Act is to facilitate the grant of a Visa for a particular purpose to a person who has a need for such type of Visa.  The failure to allow discretion to a decision maker to grant such a person such a Visa is contrary to the intention and the purpose of the Act.  For example, as is the case in the present circumstances, where an Applicant is prevented by illness or injury from making an application within a time limit (prescribed by Regulation and not by the Act itself) the intention of the Act to provide for the grant of an appropriate Visa to that person is frustrated.  The Regulation is thus invalid to the extent that it is beyond the purpose of the Act.

    Conclusion

    X.The MRT has denied the Applicant procedural fairness, has been unreasonable and has displayed bias in the conduct of the hearing of the Applicant’s application for review.’

    (Original emphasis)

14. The argument which the applicant now wishes to advance is that she received three verbal extensions of her Working Holiday (Class TZ) Subclass 417 visa in the circumstances outlined in counsel’s written submissions on the application for extension of time.  These circumstances were:

    ‘Verbal Visa Extension 1

    23In that regard the Applicant / Appellant, Ms Monn says that as a result of a telephone conversation she had with a Departmental officer on Friday 14 September 2001 her visa (Working Holiday (Class TZ) Subclass 417 Visa) was extended by that Departmental Officer, until the confusion and inconvenience causing [sic] by the terrorists attacks of Tuesday 11 September 2001 had reduced to a manageable level.

    24Without the representations made to the Applicant by the Departmental Officer, the visa of the Applicant would have expired on Friday 21 September 2001 and the last day for lodgement of the subject visa application would be Friday 19 October 2001.  Acting on the  representations made to her by the Departmental Officer on that occasion, the Applicant understood her visa to have been extended and she was not obliged to submit her application for a visa, as the 28 day deadline was not imminent.

    Verbal Visa Extension 2

    25The next relevant event occurred on Friday 5 October 2001 when the Applicant was assaulted by a male person in the Myer Store, Melbourne Victoria.  As a result of that incident on Friday 12 October 2001 the Applicant had a further conversation with a Departmental Officer and explained to that officer her situation, including the injuries occasioned to her on Friday 5 October 2001.  The Applicant says once again a Departmental Officer extended her visa verbally (by telephone).  Again the Applicant relied upon the representations of the Departmental Officer and did not take steps to lodge an application for a further substantive visa, believing she still had sufficient time to do so.

    Verbal Visa Extension 3

    26The next relevant event occurred on Wednesday 17 October 2001 / Thursday 18 October 2001 in Adelaide, South Australia when the Applicant was involved in a  motor vehicle accident and hospitalised for a period of time.  On Tuesday 23 October 2001 the Applicant had a telephone conversation with a Departmental Officer, Mr Peck, and informed Mr Peck of her situation.  The Applicant says that Mr Peck considered her entire situation and verbally (by telephone) extended the existing visa of the Applicant for thirty (30) days until Thursday 22 November 2001.

    27It is submitted that on this point the decision of Ms Sherrie Dix is factually incorrect, because on Tuesday 23 October 2001 the relevant visa incident was the verbal extension of the current / existing visa, not the verbal issue of the Bridging E (Class WE) Subclass 050 Visa.

    28The Applicant having had her existing visa extended verbally on the three (3) occasions indicated above and as indicated above, the Applicant was therefore the holder of a substantive visa continually from Thursday 21 September 2000 to Thursday 22 November 2001 and had until Thursday 20 December 2001 to lodge her application for a visa.  As the subject visa application was lodged on Friday 30 November 2001, the Applicant was within time and should have been granted the subject visa.

    Evidence of Telephone Conversations Before the Tribunals

    29Material evidencing the case of the Applicant in this regard was before the relevant Tribunals, but was either overlooked or not properly considered.  This lead to incorrect conclusions being reached by each of the decision makers as to the visa status of the Applicant at the relevant time.

    30Before Ms Sherrie Dix was an affidavit of the Applicant, entitled Chronology, which referred to the conversations of Friday 12 October 2001 and Tuesday 23 October 2001, but not Friday 14 September 2001.  That document was also before the Migration Review Tribunal (MRT).

    31The MRT also took evidence from the Applicant as to the relevant considerations for this matter from the perspective of the Applicant.  In that regard the Applicant gave evidence about the telephone conversations of Friday 14 September 2001, Friday 12 October 2001 and Tuesday 23 October 2001.  (Page 12 of the transcript of the MRT proceedings).’

    (Original emphasis)

15. The transcript of the MRT proceedings was attached to an affidavit of Mr Gallo, the solicitor for the Minister.  The transcript shows that, before the MRT, the applicant did not claim she received a verbal extension of her visa on 14 September 2001, nor is there any suggestion that such an extension was given (Transcript p 9).  In the transcript, discussions that took place on 12 October 2001 and 18 October 2001 are raised.  The transcript shows that during oral evidence in the MRT, the applicant asserted that she was told she would get an extension for at least thirty days by a person called Mr Mark Pick.  However, the applicant continued on to acknowledge that, on 19 October 2001, she was visited by a Mrs Barbara Delateva, apparently an officer of the Immigration Department, and told to disregard anything Mr Pick had said as he was new to the office and that, in fact, the applicant had three days to appear before the Immigration Department otherwise she would be deemed illegal.  She was told to comply with the requirement and to make arrangements to leave the country (transcript p 12 - 14).

16. The MRT found that:

    ‘14.     The visa applicant lodged a Medical Treatment Long Stay (Temporary) Subclass visa on 30 November 2001.  On 21 December 2001, the delegate made a decision not to grant the Subclass 685 visa on the basis that the visa applicant did not meet Schedule 3 requirements of the Regulations.  In particular the delegate found that the visa applicant did not meet the criteria of clause 685.216(b)(ii) of the Regulations as at the time of application the visa applicant’s substantive visa was out of effect for a period of 39 days.  This period of time exceeds the part 3001(1), Schedule 3 criteria of the Regulations.

    15.      The visa applicant lodged the application for review on 25 January 2002.  In response to section 8 of the review application form the visa applicant stated the decision-maker had failed to consider the relevant facts and took in irrelevant considerations.  It was further stated submissions would be provided in response to the invalidity of the decision.

    16.      The visa applicant’s then agent, in a letter to the Tribunal dated 25 January 2002 explained that the visa applicant was seeking further material and medical reports in support of her case.  He therefore requested a period of 90 days be granted to submit the submission.  No additional medical reports (other than the medical certificate referred to in paragraph 10 above) or submissions have been received by the Tribunal.

    17.      At the hearing the visa applicant reiterated much of the material on the files and referred to the events leading to her current situation.  She told the Tribunal that prior to the expiry of her Subclass 417 visa, she had made enquiries with the Department and consequently lodged an application for a visa some time in September 2001.  The visa applicant claims that this application must have been lost, as there is no record of the Department receiving the said application.  The visa applicant could not state the class of visa she claims to have lodged. Nor was she able to provide evidence of monies paid (bank statements/credit cards/cash) to the Department or tell the Tribunal the amount of money she was supposed to have paid in association with the lodgement of the claimed visa application.
    ...

    27.      There is no evidence before the Tribunal that the visa applicant did in fact lodge or attempt to lodge a visa application for permanent residence prior to the expiry of her Subclass 417 visa.  The Tribunal considers it plausible that had the visa applicant lodged an application for a further visa she would at the very least be able to inform the Tribunal the class of visa she applied for and/or the monies she was required to pay for any such application.  The visa applicant’s Subclass 417 visa ceased on 21 September 2001.  On 17 October 2001 the visa applicant was involved in a motor vehicle accident, and admitted to the Royal Adelaide Hospital on 18 October 2001.  The Tribunal notes that the visa applicant was discharged from the Royal Adelaide Hospital on 25 October 2001 and on 30 November lodged the application for the Subclass 685 visa.  The Tribunal accepts that the visa applicant may have found it difficult to check on her migration status whilst being hospitalised.  Nevertheless the Tribunal finds that the visa applicant failed to validly lodge an application within the required 28 days after the relevant day.

    28.      The Tribunal has had regard to the visa applicant’s argument that she was under the impression she had lodged a visa application, that she was hospitalised and had the visa application been lodged just a few days earlier it would have been a valid application.  The provision of Schedule 3 is explicit in that it does not allow the Tribunal discretion to waive the time limitation.  (See Holani v Minister for Immigration and Multicultural Affairs (1999) FCA 707).  Furthermore, given the evidence before it, the Tribunal is not satisfied that the  visa applicant is not the holder of a substantive visa because of factors beyond her control (3004(c)).  Having considered all the available evidence and the circumstances of this matter, the Tribunal finds on balance that the visa application must fail and the Tribunal must affirm the decision under review.  The Tribunal finds the visa applicant fails to meet the criteria set out in clause 685.216 and therefore does not meet regulation 685.21 of the Regulations.’

1. The material discloses that the case as to the applicant being given an oral extension of her visa on 14 September 2001 was not put to the MRT, and her case as to what was happening in September 2001 was put on a different basis, which the MRT did not accept.  Further, the material discloses that she put the case to the MRT of oral extensions being given by a Mr Pick or Peck, a departmental officer, in October 2001, and it is clear that this was not accepted by the MRT.

2. What the applicant now wishes to do is to obtain merits review as to the findings of fact made or not made by the MRT in order to advance a legal argument not previously put, and which requires new or different factual findings than those made by the MRT to sustain it.  This Court has no jurisdiction to entertain merits review.  There is no error of law simply in making a wrong finding of fact:  Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Any appeal based on the new argument now sought to be advanced must fail.

3. The applicant has failed to make out special reasons.  The application is dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             23 October 2003

Counsel for the Applicant:	R Bowler
Solicitor for the Applicant:	Pro bono/Friend of the Court
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 August 2003
Date of Judgment:	23 October 2003