Noor v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 247
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Noor v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 247
File number(s): MLG 3079 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 19 March 2024 Catchwords: MIGRATION – Application for an extension of time for judicial review of a decision of the Administrative Appeals Tribunal – where substantive application lodged 9 days after expiry of the statutory timeframe – where substantive application is futile and lacks merit – extension of time ought not be granted – application refused. Legislation: Migration Act1958 (Cth) ss. 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.13.06
Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 27 February 2024 Date of hearing: 13 March 2024 Place: Melbourne the Applicant: Appearing in person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 3079 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD FARHAN NOOR
Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
19 MARCH 2024
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The Applicant pay the First Respondent’s costs in the scale amount of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
This decision concerns an application for an extension of the time for filing an application for judicial review of a decision of the Administrative Appeals Tribunal.
The substantive application is made in relation to the Tribunal’s decision not to grant Mr Noor a Student (Temporary) (class TU) Student (subclass 500) visa (Student visa). It was filed 9 days outside the statutory timeframe.
Not being satisfied that it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period, the application is dismissed. The reasons for this decision follow.
APPLICATION BEFORE THE COURT
Procedural context
The substantive application was filed on 12 October 2018 with an affidavit in support. The application contained no grounds in relation to the substantive review application and specified grounds of the application for an extension of the time for filing across 2 duplicate pages of the application form. In summary, the specified grounds for an extension of the time for filing were:
(a)In filling out the application, Mr Noor realised he would require legal advice and did not have financial capacity to hire one. He intended to seek legal aid or to save money for legal fees (which he said ranged between $1,000-1,500 initially).
(b)Mr Noor was not aware of the procedure after the AAT’s refusal decision.
(c)Mr Noor wanted to recheck his statement given to the AAT and rewrite it to explain in detail what had happened and his circumstances of the past 6 years.
(d)Mr Noor needed to request a recording of the AAT hearing.
The matter was listed for call-over on 4 October 2023. Mr Noor attended on this occasion via telephone and was referred (by the presiding Judicial Registrar) to the Law Institute of Victoria with respect to engaging a lawyer.
On 22 December 2023, the application was listed for final hearing before the Court as presently constituted. The hearing was to take place on 5 March 2024 and materials were due to be filed on 30 January 2024 (by Mr Noor, who did not file anything by this date or subsequently) and 27 February 2024 (by the Respondents, the First Respondent having filed a submission on this date as ordered).
On the afternoon of 4 March 2024, Mr Noor requested an adjournment of the final hearing due to mental stress, lack of time to prepare and because no one was willing to represent him and he wanted to try and engage a representative who could support him through the process. An adjournment was granted on that occasion and the matter was re-listed for 10.00 am on 13 March 2024. The parties were notified that no further adjournment would be granted without exceptional circumstance.
On the afternoon of 11 March 2024, Mr Noor requested a further adjournment of the final hearing due to being unwell and not in a stable state to see through this on his own, not having heard back from two sources of possible representation and wanting another 2 weeks to prepare himself for the hearing. The First Respondent opposed a further adjournment on the ground that Mr Noor had been afforded ample time to engage a lawyer, the matter had been afoot for over 5 years and Mr Noor had previously been given an appropriate referral with respect to engaging a lawyer. The parties were notified that the matter would proceed as listed and if any further adjournment request were pressed it would be heard at the outset with evidence in support required to be filed and served by 2.00 pm on 12 March 2024. No evidence was filed by then or in advance of the hearing.
At 10.00 am on 13 March 2024, Mr Noor initially did not appear and on application of the First Respondent the matter was dismissed for default appearance pursuant to rule 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
At 10.10 am, Mr Noor arrived in the court house and, as the First Respondent’s representative had not yet departed the matter was brought back on and the dismissal orders were vacated. Mr Noor confirmed he had not filed any evidence in support of any further adjournment request and was ready to proceed. Accordingly, the matter proceeded to hearing of Mr Noor’s request for an extension of the time for filing.
Was the application filed late?
An application for a remedy under s.476 in relation to a migration decision must be made to this Court within 35 days of the date of the migration decision: s.477(1) of the Migration Act1958 (Cth) (Act).
The Tribunal’s decision was delivered on 29 August 2018.
An application for judicial review in this Court was due to be filed by 3 October 2018. Not being lodged electronically until 12 October 2018, this application for judicial review was made 9 days after the expiry of the 35-day period.
Should the Court be satisfied to make an order extending time?
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made as the Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish that it is in “the interests of the administration of justice” to grant an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at 451 [46] – [48], Foster J.
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
Delay and explanation
In this case there was a relatively short period of 9 days’ delay.
Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38] (Tran). The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran, at [38].
Mr Noor’s explanation for the delay in his originating application may be summarised as comprising 2 main reasons which he reiterated at hearing before the Court:
(a)First, he had realised that he would require legal advice and did not have financial capacity to do so at that time; and
(b)Second, he did not know what the procedure was after the Tribunal had affirmed the delegate’s refusal of his visa application.
There is no evidence of the explanation for the delay at all.
It is understandable that Mr Noor as a self-represented litigant was unfamiliar with his options for review of the Tribunal’s decision and the Court’s procedures. However, there are a range of publicly available sources of information to assist self-represented litigants with navigating the process which Mr Noor here ultimately was able to do. In my view, without more, ignorance is a relevant factor but not of itself a reasonable or acceptable excuse for delay.
Taking into account all of the circumstances, the absence of a satisfactory or an acceptable explanation in circumstances of a relatively short period of delay weighs only slightly against the grant of an extension of the time for filing the judicial review application.
Prejudice
The First Respondent properly did not contend to suffer any particular prejudice were an extension of the time for filing to be allowed.
The absence of prejudice is a factor that weighs neither for nor against the grant of an extension of the time for filing.
Merits of the judicial review application
The time limitation reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a decision of the Tribunal. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to Mr Noor are reasonably arguable.
Mr Noor did not articulate any contention of jurisdictional error or ground of review in his written materials or when invited to do so orally at hearing. In his originating application, Mr Noor sought the opportunity to put more evidence before the Administrative Appeals Tribunal. In the accompanying affidavit (which annexed a statement of purpose document prepared by Mr Noor), he sought the opportunity to address the Court about the hardship that he had suffered in the past. In response to questions of the Court at hearing, Mr Noor confirmed that he did not have any valid enrolment in a course at the time of the Tribunal hearing and elaborated on the reasons why that were the case.
The Tribunal’s written reasons of 30 August 2018 explained that it had affirmed the delegate’s decision to refuse Mr Noor a visa because he did not meet an essential criterion – at clause 500.211, which relevantly provided that Mr Noor was required to be enrolled in, or have a valid offer of enrolment, in any course of study in Australia: Tribunal’s reasons at [13]-[16]. Mr Noor accepted that the Tribunal’s finding of fact that he was not enrolled in a course of study as required at the relevant time was correct. There is no error in this respect.
The role of this Court is limited to the identification of jurisdictional error in the Tribunal’s decision. That assessment must proceed on the basis of information that was before the Tribunal. This Court does not have the power to redetermine or consider the merit of the visa application or to remit it so that an applicant can elaborate on their evidence.
There was no allegation of a denial of procedural fairness. In any event, on the face of the Tribunal’s decision, Mr Noor was afforded procedural fairness as required by the Act in that he was invited to attend a hearing and address the Tribunal, he was put on notice of the matter which was ultimately dispositive of his application before the Tribunal and he was the subject of a Request for Student Visa Information questionnaire prior to the hearing.
Not being persuaded that there is any jurisdictional error established by the specified grounds, or otherwise apparent on the face of the Tribunal’s decision, it is concluded that the substantive application is not reasonably arguable.
This is a factor that weighs strongly against the allowance of further time in which the review application be filed.
CONCLUSION
The application in this case was filed 9 days outside the statutory time limitation. The Court may only grant an extension of the time within which the application was to be made if such extension is in the interests of the administration of justice.
Weighing all of the considerations above, and in particular that the substantive judicial review application has no reasonably arguable prospects of success, I am not satisfied that it is in the interests of the administration of justice that there be an extension of the time within which to apply for review of the Tribunal’s decision of 29 August 2018.
Accordingly, I will not extend the time for bringing the review application. I will order that the Applicant pay the Minister’s costs in the fixed amount of $4,189.38.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 19 March 2024
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