Mutoya v Minister for Immigration
[2017] FCCA 2033
•29 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUTOYA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2033 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file judicial review application – consideration of factors relevant to extension of time – delay – prospects of success. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2)(c) Migration Act 1958 (Cth), ss.353(1), 367, 476, 477 Migration Regulations 1994 (Cth), regs.1.40A, 4.21(4) Sch.2, cll.570.232, 571.232, 572.231, 573.222, 573.223, 573.231, 574.231, 575.231 |
| Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 Jiang v Minister for Immigration & Anor [2007] FMCA 215 Jiang v Minister for Immigration & Citizenship [2007] FCA 907 |
| Applicant: | VINCENT MUTOYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 241 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 30 July 2015 |
| Date of Last Submission: | 30 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 August 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) for an extension of time in which to lodge an application under s.476 of the Migration Act 1958 (Cth) be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 241 of 2014
| VINCENT MUTOYA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 12 August 2014 the applicant, Vincent Mutoya (“Mr Mutoya”), seeks an extension of time (“Extension of Time Application”) under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) in which to file a judicial review application (“Proposed Judicial Review Application”) under s.476 of the Migration Act concerning a decision of the second respondent, previously the Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal”) made on 6 February 2014 (“Tribunal Decision”).
The Tribunal Decision appears at Court Book (“CB”) 193-196. The Tribunal Decision affirmed a decision of a delegate (“Delegate”) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) dated 18 November 2011 (“Delegate’s Decision”) to refuse to grant a Student (Temporary) (Class TV) visa (“Student Visa”) to Mr Mutoya.
Mr Mutoya filed an affidavit sworn 12 August 2014 together with the Proposed Judicial Review Application (“Mr Mutoya’s 2014 Affidavit”).
Background
The background to the Proposed Judicial Review Application is as follows:
a)Mr Mutoya is a citizen of the Republic of Zambia who first entered Australia on 3 July 2009 on a Student (Temporary)(Class TU) subclass 572 visa (“Student Visa”): CB 4, 6 and 162;
b)on 31 August 2011 Mr Mutoya applied for the Student Visa (“Student Visa Application”). Mr Mutoya’s wife and children were included in the Student Visa Student Visa Application as secondary applicants: CB 1-18;
c)in the Student Visa Application, Mr Mutoya advised that his intended course was a Master of Professional Finance and Banking (“Master’s Degree”) which was due to commence on 14 February 2011 and finish on 31 December 2012: CB 5;
d)on 18 November 2011 the Delegate refused to grant Mr Mutoya a Student Visa on the basis that he did not satisfy the requirements of cl.573.223(2)(a)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”). The Delegate was not satisfied that Mr Mutoya was a genuine applicant for entry and stay as a student due to a gap in his studies between 20 June 2010 and 14 February 2011: CB 93-101;
e)on 7 December 2011 Mr Mutoya, his wife and children applied to the Tribunal for review of the Delegate’s Decision: CB 141-147;
f)on 18 December 2013 Mr Mutoya completed the course requirements for the Master’s Degree;
g)by letter dated 18 December 2013, the Tribunal invited Mr Mutoya and his family to:
i)appear before the Tribunal by teleconference from Perth on 6 February 2014 to give evidence and present arguments; and
ii)provide (amongst other things) a certificate of enrolment as required by cl.573.222 of Schedule 2 to the Migration Regulations, or evidence that Mr Mutoya was enrolled in, or was the subject of a current offer of enrolment in a registered course as set out in cl.573.231 of Schedule 2 to the Migration Regulations: CB 168-170;
h)on 3 January 2014 the Tribunal received various documents from Mr Mutoya, including:
i)a letter confirming that his wife was unwell while pregnant and that they had had a child born on 24 February 2011; and
ii)evidence that Mr Mutoya had completed the Master’s Degree requirements on 18 December 2013: CB 178-180;
i)Mr Mutoya and his wife appeared before the Tribunal by telephone on 6 February 2014 and gave evidence and presented arguments: CB 184-186 (“Tribunal Hearing”);
j)at the Tribunal Hearing on 6 February 2014 the Tribunal affirmed the Delegate’s Decision to refuse Mr Mutoyas the Student Visa (and consequently to refuse secondary visas to Mr Mutoya’s wife and children): CB 19 and CB 195 at [12];
k)Mr Mutoya was advised of the Tribunal Decision by letter dated 6 February 2014: CB 189; and
l)on 6 February 2014 the Tribunal published the Tribunal Decision, a copy of which was sent to Mr Mutoya by letter dated 7 February 2014: CB 193-197.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the issue before the Delegate was whether Mr Mutoya met the criteria in cl.572.223(2)(a)(ii) of Schedule 2 to the Migration Regulations. (The relevant provision was in fact cl 573.223(2)(a)(ii) Schedule 2 to the Migration Regulations, but the material provisions are the same in effect). The issue before the Tribunal, however, was whether, at the time of Tribunal Decision, Mr Mutoya met the enrolment requirements for the Student Visa: CB 195 at [13];
b)noted that, with limited exceptions not relevant to this case, cll.570.232, 571.232, 572.231. 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations required that at the time of Tribunal Decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in a course of study that is a principal course, and that that course is of the type specified under reg.1.40A of the Migration Regulations for the subclass at the time of application: CB 195 at [14];
c)noted that Mr Mutoya told the Tribunal Hearing that he was not enrolled in, or the subject of an offer of enrolment in, a registered course. The Tribunal accepted Mr Mutoya’s evidence in that regard. The Tribunal therefore found that cll.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of Schedule 2 to the Migration Regulations were not met: CB 195 at [15];
d)found, in addition, that there was no evidence that Mr Mutoya met the criteria for either a subclass 576 or subclass 580 student visa: CB 195 at [16]; and
e)found that as Mr Mutoya did not satisfy a primary criterion for the grant of the Student Visa, it followed that his wife and children also did not satisfy the secondary criteria for the Student Visa: CB 195 at [17].
For the above reasons, the Tribunal affirmed the Delegate’s Decision not to grant Mr Mutoya the Student Visa: CB 195 at [18].
Proceedings in this Court
The Extension of Time Application provides only one ground, as follows:
It was not in my knowledge that I was supposed to lodge within 35 days.
The grounds of the application as stated in the Proposed Judicial Review Application when filed was a single ground as follows:
The duration of an invitation was not in reasonable time.
Mr Mutoya’s 2014 Affidavit did not deal with the question of extension of time, but rather addressed the merits of the Proposed Judicial Review Application as follows:
The statement of decision record on page 2 of 4 paragraph 3 it was stated that I was not a genuine for entry. However I was proved to be the genuine by finishing the course for Masters in Professional Finance and Banking despite being on the student bridging visa
- On the statement of decision record page 3 of 4 they stated that I had no evidence of enrolment or an offer of letter and so there was no student visa for which I could qualify.
However, I appealed to Tribunal on 7 December 2011 so that they can intervene my case but it took them 2 years 1 month which was beyond reasonable time.
- according to their statistics invitation for student is between 400 and 650 days. To my case they took 790 days and it took them 13 minutes on the oral decision.
(Transcribed without amendment from Mr Mutoya’s August 2014 Affidavit).
On 1 October 2014 a Registrar of the Court ordered Mr Mutoya to file and serve:
a)an amended application giving particulars of the grounds of review; and
b)any further affidavits upon which he intends to rely at the hearing of the matter, including any further affidavits in support of his application for an extension of time, on or before 4 February 2015; and
c)an outline of submissions not less than 14 days before the hearing on 30 July 2015.
On 6 February 2015 Mr Mutoya filed, but did not serve, a further affidavit affirmed on that date (“Mr Mutoya’s 2015 Affidavit”). Mr Mutoya has not filed an amended application. On 21 July 2015 Mr Mutoya filed an outline of submissions (“Mr Mutoya’s Submissions”).
Mr Mutoya’s 2015 Affidavit:
a)refers to the relevant regulations under the Migration Regulations;
b)refers to the necessity for the relevant visa to be granted for the duration of the course and for the student to have the necessary health cover;
c)refers to the application to the Tribunal for review, and the fact that it took two years and two months before he was invited to the Tribunal Hearing;
d)says that it took only 13 minutes for the Tribunal to make the oral decision;
e)says that in the absence of an express fixed time period for the sending of an invitation to a hearing by the Tribunal such invitation should be sent within a reasonable time;
f)says that the Tribunal’s failure to invite him was not his problem, but a management problem;
g)says it was not possible for him to enrol in another course due to his wife’s impending pregnancy;
h)says he regard the Tribunal Decision to involve an error in law.
Mr Mutoya’s Submissions provide as follows:
The Federal court has the right to override an exercise of the commissioner's discretion where it involve an error in law with Migration Review Tribunal of affirming the decisions not to grant Mr Mutoya student (Temporary) (Class TU) visas.
A. The nature of appealing to the Federal Circuit Court
1. The time taken by the MRT to invite me for the hearing was very long (date of lodgement with the Tribunal was 7th December 2011 and date of oral decision on 6th February 2014) it would be assumed that they have a lot of work but the Oral Decision took only 13 minutes.
2. The tribunal member never considered my wife's situation of 8 months pregnancy. This was an indication that I was in the situation of taking care of my wife and in preparation of the new baby (Junior Vincent Mutoya) and waiting to apply for the skilled visa other than applying for the student visa.
B Fact findings from the statement of decision and reasons made by MRT
l. Mr Mutoya would be granted a visa provided he is in the position of satisfying a primary criterion for the grant of the student visa. This evidence is in page 3 of clause 13 and14 which states that “With limited exceptions not relevant to the case, cl.570.234, 571.232, 572.231, 573.231,574,231 and 575.231 of the regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principle course”.
1. On page 3 paragraph clause 17 and 18 the M RT affirmed the decision for the reasons that I did not satisfy a primary criterion (mentioned earlier) for the grant of the student visa.
C. Argument against the statement of decision and reasons made by MRT
1. The course of study that I was enrolled in was a principle course.
2. I had Overseas Student Health Cover for all the period of my enrolment which had to expire on 6th of April 2014.
3. I had a enough finances to sponsor myself for school fees and other expenses
C. Conclusion
1 Considering the facts that the MRT took 2 years 2 months before they could invite me for the hearing and only took 13 minutes for the oral decision. It is therefore concluded that, if it is assume that they invited me before completion of the course on 18 December 2013 6 weeks before MRT'S Decision, they would had granted a visa. For the reasons given above, there is no occasion for doubt that the decision made by MRT involved an error in law where the timing is concerned.
2. However it is the request that the court should consider my outline and therefore not be dismissed and with no costs so that I can make up the steps of residence how I should live here in Australia 3 children one born in Zambia and 2 born here in Australia.
The Extension of Time Application
Under s 477(1) of the Migration Act, Mr Mutoya’s application to the Federal Circuit Court was required to be filed within 35 days of the date of the Tribunal Decision. The date of the Tribunal Decision is 6 February 2014 and the application for review was required to be filed by 13 March 2014. The application was filed on 12 August 2014, and is therefore 160 days out of time.
The Court has a discretion to extend time under s.477(2) of the Migration Act, and Mr Mutoya has made the Extension of Time Application.
In WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 (“WZASQ”) this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
11 … It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s 477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor: … [[2012] FMCA 384 (“SZRBN”)].
WZASQ at [10]-[11] per Judge Lucev; see also SZBRN at [28]-[30] per Nicholls FM, where an application for leave to appeal against SZRBN was dismissed by the Federal Court: SZRBN v Minister for Immigration & Citizenship [2012] FCA 984; Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [12]-[14] per Judge Lucev (“Sandan”).
By not specifying why he considered it was necessary in the interests of the administration of justice to extend time, Mr Mutoya has failed to satisfy s.477(2) of the Migration Act. Therefore, an extension of time cannot be granted by the Court.
Rule 44.05(2)(c) of the of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that where an application for judicial review seeks an extension of time, it must be supported by an affidavit containing evidence:
a)explaining the delay; and
b)showing why it is necessary in the interests of the administration of justice for the Court to grant an extension, as required by r.44.05(2)(c) of the FCC Rules, unless compliance with the rule is dispensed with in the interests of justice: FCC Rules, r.1.06(1).
Absent such dispensation, the FCC Rules prescribe that there must be an explanation provided in an affidavit supporting the Proposed Judicial Review Application as to the delay and as to why it is necessary in the interests of the administration of justice for the Court to grant an extension of time: see also Sandan at [17]-[29] per Judge Lucev (and the various judgments of the Federal Court and this Court there referred to).
By not filing an affidavit containing evidence showing why it is necessary in the interests of the administration of justice for the Court to grant an extension, as required by r.44.05(2)(c) of the FCC Rules, Mr Mutoya has failed to satisfy r.44.05(2)(c) of the FCC Rules, and in circumstances where no dispensation has been applied for nor granted, it follows that an extension of time cannot be granted by the Court.
Notwithstanding the views expressed above in relation to an extension of time not being granted by the Court by reason of the failure to satisfy the procedural requirements of s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules the Court does, hereunder, consider the other relevant factors normally taken into account in exercising its discretionary power to extend time under s.477(2) of the Migration Act.
The relevant factors the Court ordinarily takes into account in its exercise of the discretionary power under s.477(2) of the Migration Act include:
a)the extent of the delay;
b)the reasons for the delay;
c)whether there is any prejudice to a party in either granting or refusing to grant the extension; and
d)whether there is any arguable merit in the application.
See Brundavanam v Minister for Immigration & Anor [2013] FCCA 2298 at [3] per Judge Riley; WZASC v Minister for Immigration& Anor [2013] FCCA 1452 at [7] per Judge Lucev.
Delay
The delay in this case is more than four times the specified statutory limitation period. It is, therefore, a very lengthy delay.
In Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 at [13] per McHugh J (“Marks”) the High Court said that the grant of an enlargement of time is not automatic and a case “would need to be exceptional” before the time for commencing proceedings was enlarged by many months.
In considering the law with respect to the delay in making an application, and in particular an application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard to the judgments of the High Court in Marks and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
The effect of delay in a case concerning prerogative relief from the decision of an administrative decision-maker was commented upon by the High Court in Marks at [16] per McHugh J in the following terms:
Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”. The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this Court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this Court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
In this case, the delay is very lengthy. It is, as has been observed above, more than four times the specified statutory limitation period. In the context of a case seeking prerogative relief from the decision of an administrative decision-maker such as the Tribunal a delay of this length weighs significantly against the Extension of Time Application being granted.
Explanation for delay
Although no affidavit explaining the delay has been filed by Mr Mutoya, he asserts in his Judicial Review Application that “it was not in my knowledge that I was supposed to lodge within 35 days”.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: Islam v Minister for Immigration & Anor [2013] FCCA 1687 at [17] per Judge Lucev (“Islam”), referring to SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”) where the Federal Court observed that:
38. In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the … Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. …
SZSDA was followed in MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
The Court further notes that Mr Mutoya has given no evidence about the extent of his knowledge of the availability of judicial review, how and when he first became aware of time limits on making applications and how soon after becoming aware he lodged his application.
In the circumstances, there is no satisfactory, let alone persuasive, explanation for Mr Mutoya’s very lengthy delay in filing the application. There being no satisfactory explanation for the delay in filing the Proposed Judicial Review Application, the lack of explanation weighs significantly against the grant of the Extension of Time Application.
Prejudice
There is no prejudice to Mr Mutoya in the failure to grant the Student Visa as the purpose of it was to enable him to complete the Master’s Degree which, by reason of the delay in the Tribunal Hearing being listed, he completed in any event.
The Minister does suffer some prejudice by reason of the fact that upon the expiry of the time for the issue of a Constitutional writ against the decision or judgment the Minister has a vested right to retain the judgment or decision: Marks at [17] per McHugh J.
Although not a matter of significant weight, the prejudice suffered by the Minister does not weigh in favour of the grant of the Extension of Time Application.
Merits
In the sole ground of the application, Mr Mutoya alleges that the “duration of invitation was not in reasonable time”. In Mr Mutoya’s 2014 Affidavit he states that he applied to the Tribunal on 7 December 2011 so that “they can intervene my case but it took them 2 years one month which was beyond reasonable time”: Mr Mutoya’s 2014 Affidavit. Similar contentions are made in the statement annexed to Mr Mutoya’s 2015 Affidavit and in Mr Mutoya’s Submissions.
There is no jurisdictional error in the Tribunal Decision by reason of the time taken by the Tribunal to either invite Mr Mutoya to the Tribunal Hearing or to make the Tribunal Decision. Save in respect of certain decisions under s.367 of the Migration Act (which are not applicable here), the Tribunal is under no obligation to make the Tribunal Decision within a certain timeframe. Although s.353(1) of the Migration Act requires the Tribunal to pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”, such a provision is best seen as exhortatory or aspirational and does not result in invalidity merely because a conclusion can be drawn by a court that some action by the Tribunal does not meet those requirements: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [49] per Gleeson CJ and McHugh J, [108]-[109] per Gummow J and [176]-[179] per Callinan J; Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [51]-[52] per Hayne, Kiefel and Bell JJ and [96] per Gageler J.
The Tribunal invited Mr Mutoya by letter dated 18 December 2013 to the Tribunal Hearing on 6 February 2014, and the letter to Mr Mutoya invited him to provide (amongst other things) a certificate of enrolment as required by cl.573.222 of Schedule 2 to the Migration Regulations, or evidence that he was enrolled in, or was the subject of a current offer of enrolment in a registered course as set out in cl.573.231 of Schedule 2 to the Migration Regulations. The letter also advised Mr Mutoya that the Tribunal may make a decision at the end of the Tribunal Hearing: CB 169-170. In the circumstances, it is not open to Mr Mutoya to contend that he was not given sufficient notice of the issues that were relevant to the Tribunal’s determination of the application for review.
On the evidence before the Tribunal, Mr Mutoya was not enrolled in, nor was he the subject of an offer of enrolment in, a registered course. Accordingly, the only decision that was open to the Tribunal was to affirm the Delegate’s Decision on the basis that Mr Mutoya did not satisfy a primary criterion for the grant of a Student Visa. There is therefore no error, let alone jurisdictional error, in the Tribunal Decision.
Mr Mutoya’s contention that he could have met the requirements for a Student Visa if the Tribunal had held a Tribunal Hearing while he was still enrolled, does not alter the fact that, at the time of the Tribunal Decision, Mr Mutoya did not meet an essential requirement for the grant of a Student Visa.
Even if there were some jurisdictional error in the Tribunal Decision, the Court would not in the exercise of its discretion in granting prerogative relief, grant such relief. Put shortly, there are two reasons for that:
a)Mr Mutoya sought the Student Visa for the purpose of completing the Master’s Degree, and he has completed the Master’s Degree, and therefore a remittal to the Tribunal would, in the Court’s view, lack utility: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J, or would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, upheld on appeal: Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J; and
b)Mr Mutoya has not suffered any practical injustice: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502 (2003) 72 ALD 613 at [25]-[29] and [34] per Gleeson CJ, [61]-[67] and [81]-[83] per McHugh and Gummow JJ, and [111] per Hayne J.
It follows that the Proposed Judicial Review Application lacked merit, and it did not establish either an error in law, or any jurisdictional error in the Tribunal Decision. Even if it had, for the reasons set out above, the Court would not have granted prerogative relief. In all of those circumstances, the lack of prospect of success of the application weighs significantly against the grant of the Extension of Time Application.
In relation to other matters adverted to by Mr Mutoya either in his Submissions or at the hearing the Court does not consider that they warrant an extension of time. The fact that Mr Mutoya might have applied at some stage for a graduate visa does not mean that he met the criteria for the Student Visa, and, in any event, he did not apply for any form of graduate visa that he might have been entitled to following his completion of the Master’s Degree. Mr Mutoya’s reliance upon his wife’s pregnancy as a reason for the delay cannot be sustained. Mrs Mutoya had a baby on 13 March 2014 according to the birth certificate annexed to Mr Mutoya’s 2015 Affidavit. There is no medical or other evidence of Mrs Mutoya having any difficulty with her pregnancy, her birth, or any post-birth complications, either personally or in relation to the newborn child. Even giving Mr Mutoya some leeway in relation to the birth of the child on 13 March 2014, that being the date that the application for review was required to be filed with this Court, there is no evidence as to why it then took 160 days to file the application for review. These matters do not support the grant of an extension of time.
Conclusions and orders
For the reasons set out above, the Court has concluded that Mr Mutoya’s Extension of Time Application is not made out, and it must be dismissed. There will be an order accordingly.
The dismissal of the Extension of Time Application renders it unnecessary to make an order dismissing the Proposed Judicial Review Application: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 August 2017
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