Mrar v Minister for Immigration & Anor

[2015] FCCA 2629

FEDERAL CIRCUIT COURT OF AUSTRALIA

MRAR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2629

Catchwords:
MIGRATION – Application for an extension of time pursuant to s.477 of the Migration Act – application only one day late – applicant failing to provide evidence of enrolment as a student despite numerous opportunities – no merit in substantive application – application dismissed.

Legislation:

Migration Act 1958, ss.359A, 477

Minister for Immigration and Citizenship v Li [2013] HCA 18

Applicant: HARSIMRANJIT SINGH MRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1544 of 2014

Judgment of: Judge Burchardt

Hearing date: 13 August 2015

Date of Last Submission: 13 August 2015

Delivered at: Melbourne

Delivered on: 8 October 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’. 

2. The Application for an extension of time pursuant to s.477 of the Migration Act 1958 is dismissed.

3. The Applicant is to pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1544 of 2014

HARSIMRANJIT SINGH MRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 30 July 2014, the applicant seeks an extension of time to make an application for judicial review pursuant

   
   

   to s.477 of the Migration Act 1958 (“the Act”).  The application grounds asserted are:

   “I received the decision application on 7th of July 2014 exhibit marked HMS2 to the attached affidavit.  I was unaware of the time restriction imposed by the Court.”

2. The substantive grounds of application assert that the Tribunal “erred in making a decision based on the fact that the applicant had not complied with s.359A of the Migration Act 1958 (Cth), when this was not the case and its decision is thereby beyond its jurisdiction”. 

   
   

   The particulars set out pursuant to those grounds are relatively lengthy and from their terms appear to have been prepared by an agent. 

   
   

   They traverse a history of endeavours to adjourn the matter and other difficulties in the hearing being conducted by the Tribunal.

3. Essentially what is put is that the Tribunal denied the applicant

   
   

   a hearing as required by s.360 of the Act. The affidavit in support, filed likewise on 30 July 2014, deposes that the applicant was not notified of the hearing due to be heard on 8 May 2014. His previous agent, CECA, was not notified and he had moved from Perth

   
   

   to Melbourne in January 2014 and informed his agent of the change

   
   

   of address.  He was in fact in India in May 2014, promoting his songs to the Punjabi community, (he is apparently a reasonably successful entertainer), and thus had not been able to attend the hearing.

4. When the matter came before the Court, the applicant sought that the matter be adjourned to enable him to get legal advice.  I ruled against that application and indicated I would give my reasons in my judgment.  The reason I was not prepared to adjourn the matter further essentially is the very substantial amount of time that the matter has already been in the Court.  The application was filed on 30 July 2014 and as long ago as 3 November 2014, Registrar Allaway made orders setting

   
   

   the matter down for trial.

5. In my view, there is no utility in granting the applicant further time

   
   

   to get a lawyer.  He has had two agents already.  He has failed thus far to have any success in articulating his case before the Court and there is simply nothing to suggest that the applicant has taken reasonable steps to arrange representation in the meantime.

6. When the adjournment application decision was announced, I invited the applicant to address the Court, but first asked him if he had read

   
   

   the first respondent’s submissions.  He asserted he had not, although the first respondent’s representative said that they had been sent to the applicant’s address, which has not changed in the meantime, but I stood the matter down for approximately 40 minutes to give the applicant time to read the submissions and collect his thoughts.

7. When the application was then heard, the applicant said that this had all been going on for a very long time.  The Tribunal decision took place when he was overseas and it was a bad telephone line.  He had thought his previous representatives would let him know of the hearing,

   
   

   but they failed to do so.  He was not able to communicate with the Tribunal or his agent.  He said there were so many things written here, by which I took him to refer to the first respondent’s submissions and the Tribunal’s decision.  He referred to the Tribunal’s decision about his failure to establish his enrolment.

8. The first respondent was content to rely upon his written submissions.  The first respondent conceded that the application was out of time by one day, which in the scheme of things was not a matter of any significance.  The real opposition to the extension of time was an alleged lack of merit in the application itself. 

9. From the decision of the Tribunal and the first respondent’s written submissions, it is apparent that the applicant applied for his visa on

   
   

   2 August 2012.

10. On 8 August 2012, the Department wrote to the applicant, inviting him to provide information in relation to his period of non-study and evidence to show that he met the relevant financial capacity requirements.  The applicant did not respond to this request and on

    
    

    17 September 2012, a delegate refused the application.  The delegate’s decision relevantly noted that no documents had been received, notwithstanding the extensive delay.  The applicant filed his application to review the delegate’s decision on 5 October 2012 and on 4 April 2014, the Tribunal wrote to the applicant, inviting him to attend

    
    

    a hearing on 8 May 2014.

11. The invitation was addressed to the applicant at the address provided on his application to the Tribunal and was clearly dispatched within three working days, as is shown by the affidavit of William Sharp, filed 15 January 2015.  The applicant did not attend the hearing on 8 May 2014 and the Tribunal wrote to him again on 13 May 2014, stating that it was considering whether to proceed without a further hearing. 

    
    

    On 15 May 2014, the applicant provided a response.

12. He stated he had moved and gave his new address.  He further stated that he was in India, but requested that all correspondence be sent

    
    

    to his migration agent.  The Tribunal was notified of the authorised recipient’s address and the hearing was rescheduled for 11 June 2014.  The applicant had been notified by the Tribunal that it did not have evidence that the applicant was currently enrolled, which was

    
    

    a fundamental prerequisite for the grant of the student visa for which he had applied.

13. The applicant’s representative sought an adjournment, but this was rejected and on 11 June 2014, the Tribunal spoke with the applicant via telephone.  They Tribunal emphasised the enrolment requirement, but the call had to be ended because of a bad telephone connection. 

    
    

    A further invitation was sent to the applicant on 12 June 2014 and

    
    

    on 17 June 2014, the applicant’s representative again requested

    
    

    a further adjournment.  That adjournment application was refused and the applicant did not attend the scheduled hearing on 18 June 2014.

14. The applicant had been requested to provide two reliable telephone numbers, but failed to do so, and the applicant’s telephone was recorded as being switched off when the Tribunal attempted to contact him on 18 June 2014.  On 24 June 2014, the Tribunal affirmed the delegate’s decision. 

15. The first respondent’s submissions submit that the applicant had failed to provide sufficient reasons for the delay in his application, but concentrated more on the alleged lack of merits.

16. It was submitted that the primary assertion made by the particulars of the ground for review were misconceived.  The applicant had been put on notice, express notice, that enrolment was a determinative issue in the review.  It was submitted that the decision to proceed in the circumstances was entirely reasonable and not affected by the sort of unreasonableness established in Minister for Immigration and Citizenship v Li [2013] HCA 18.

17. In my view, the first respondent’s submissions are correct.  The course of conduct embarked upon by the Tribunal was, in my view,

    
    

    a reasonable one. Every possible endeavour was made to have the applicant participate in the proceeding and the Tribunal was entitled under the Act to proceed in his absence. Moreover, as the Tribunal itself observed, at paragraph 34, CB124:

    “As set out above the applicant has been invited on multiple occasions to provide evidence of his enrolment.  He has not done so.  He is assisted by a registered migration agent who undoubtedly would have provided the tribunal with such evidence if it existed and had been made available by the applicant.  On 11 June 2014 at hearing the applicant told the tribunal he is not currently enrolled.  The tribunal finds that there is no evidence before it that the applicant is enrolled or subject to a current offer of enrolment.”

18. Given that the enrolment requirement is a time of decision requirement, it is apparent that the application could not, therefore, succeed. 

    
    

    In these circumstances and leaving aside all other considerations, there is no utility to extending the time to the applicant to make his application, because his application will not succeed. Accordingly, it is not in the interests of the administration of justice to do so.

19. In these circumstances, the application must be dismissed.

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

Associate: 

Date: 8 October 2015