PATEL v Minister for Immigration
[2018] FCCA 3332
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3332 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – application to this court filed late – applicants erroneously construed timing requirements – applicants had 14 days of verbal decision to request written reasons – they failed to make that request within 14 day period. |
| Legislation: Migration Regulations 1994, sch 2, cl 572.223(1)(a), reg 4.27B, cl 572.225 |
| Cases Cited: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZANW v Minister for Immigration and Border Protection [2016] FCCA 2639 |
| First Applicant: | NAMRATA SAMIRKUMAR PATEL |
| Second Applicant: | SAMIRKUMAR ARVINDBHAI PATEL |
| Third Applicant: | DIYA SAMIRKUMAR PATEL |
| Fourth Applicant: | RYAN PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 644 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 26 and 29 October and 2 November 2018 |
| Date of Last Submission: | 2 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Third Applicant: | In person |
| Solicitors for the Third Applicant: | None |
| Fourth Applicant: | In person |
| Solicitors for the Fourth Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to r 1.06 of the Federal Circuit Court Rules (“rules”) the requirement to appoint a litigation guardian for the third and fourth applicants under div 11.12 of the rules is dispensed with.
The application filed 30 March 2016 is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the sum of $6 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 644 of 2016
| NAMRATA SAMIRKUMAR PATEL |
First Applicant
And
| SAMIRKUMAR ARVINDBHAI PATEL |
Second Applicant
And
| DIYA SAMIRKUMAR PATEL |
Third Applicant
And
| RYAN PATEL |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
The issue in this case is whether an order should be made to extend the time within which the applicants are permitted to apply to this court for judicial review.
The minister’s delegate decided that the first applicant was not entitled to the student (temporary) (class TU) (subclass 572) visa for which she applied. The Administrative Appeals Tribunal affirmed the delegate’s decision.
The applicants sought judicial review in this court. They filed their application six days later than the date the legislation required. They needed an order extending time to do so.
The minister said the application to this court was late although the lateness was relatively short. The minister did not argue that he was prejudiced by the lateness. The minister said no adequate explanation for the delay was given. Further, the minister said that on the grounds alleged the applicants’ prospects of success on the substantive matters contended for were poor.
In short, the minister said it was not necessary in the administration of justice to grant the extension of time sought.
The question for me was whether the minister was correct in those contentions.
Synopsis
For the reasons that follow, in my judgment it is not in the interests of the administration of justice to grant the extension of time sought. I refuse the applicants’ application for an extension of time within which to bring this application for judicial review.
Relevant factual narration
Chronologically, between 14 July 2008 and 30 June 2012 the first applicant held a student subclass 573 visa and later a subclass 572 visa from 12 July 2012 to 28 October 2014.
On 25 November 2014 the first applicant applied for the visa in issue in this case. She was assisted by her migration agent. Her visa application indicated that she proposed to study a diploma of business between November 2014 and July 2015 and an advanced diploma of business between August 2015 and March 2016.
In her visa application she stated she had already completed several previous courses. They were –
a)a certificate III in hospitality completed in 2009;
b)a diploma of hospitality completed in 2012; and
c)an advanced diploma in hospitality completed in 2012.
On 2 December 2014 the department sought further information from the first applicant. Specifically, it sought information explaining the genuine temporary entrance criterion, evidence of overseas student health cover and evidence that certain health examinations had been undertaken. The department gave the first applicant 28 days to provide that information.
On 30 December 2014 the applicant’s representative requested a four week extension within which to provide the information sought by the department. On 2 January 2015 the department’s representative informed the applicant’s representative that extensions of time could only be approved in compelling and compassionate circumstances.
On 7 January 2015 the delegate refused to grant the applicants the visas they sought.
The delegate stated the first applicant did not meet cl 572.223(1)(a) of sch 2 to the Migration Regulations (“regulations”) because the delegate was not satisfied the first applicant genuinely intended to stay in Australia temporarily.
The applicants sought merits review in the Administrative Appeals Tribunal by application filed 22 January 2015.
On 20 January 2016 the tribunal invited the applicants to appear before it on 18 February 2016. In its invitation the tribunal indicated it expected the applicant to provide to the tribunal –
a)evidence of the first applicant’s current certificate of enrolment;
b)evidence showing the first applicant was currently enrolled in a course or had an offer of enrolment in a registered course;
c)evidence of the first applicant’s past studies in Australia;
d)an explanation for any study gaps; and
e)a statement addressing the considerations outlined in ministerial direction 53, a copy of which was attached to the invitation.
The hearing was duly convened on 18 February 2016. The applicants provided evidence of her–
a)completion of the certificate III in hospitality;
b)diploma of hospitality;
c)enrolment in a diploma in business; and
d)enrolment in an advanced diploma of business.
On 18 February 2016 the tribunal delivered a verbal decision by which the tribunal affirmed the delegate’s decision. On the same day, 18 February 2016, the tribunal provided the applicants with a letter confirming the decision it had made. In that letter the tribunal expressly stated that the applicants had 14 days from the date of the verbal decision within which to make a request for a written statement of reasons.
On 9 March 2016, 20 days after the verbal decision and not 14 days as required, the applicant emailed the tribunal requesting written reasons.
On 23 March 2016 the tribunal emailed the applicants’ representative with a statement of the tribunal’s reasons for its decision. The tribunal identified that the first applicant had read and understood the delegate’s decision and that she was on notice about the issues in the review. That was paragraph 3 of the tribunal’s reasons.
Between paragraphs 4 and 9 of its reasons the tribunal had regard to the fact that the first applicant had been invited by the department to provide evidence in support of her application, including a statement addressing the genuine temporary entrant criterion and evidence of her overseas student health cover but had not provided anything and she had still not obtained her overseas health cover.
At paragraph 10 of its reasons the tribunal noted that the delegate had set out in its decision that the first applicant had maintained enrolment in short inexpensive courses and had not completed any courses above the vocational education and training sector level. The tribunal further observed that the delegate had considered that the first applicant previously held a subclass 573 visa but had not commenced a course at that level.
At paragraph 11 of its reasons the tribunal recorded that the first applicant had also not responded to the tribunal’s invitation to provide further evidence by the provision of evidence addressing whether she was a genuine temporary entrant.
In paragraph 15 of its reasons the tribunal considered that the first applicant had been in Australia since 2008 and had provided some evidence of the studies she had completed in that time.
In paragraph 19 of the tribunal’s reasons it concluded that the applicants’ statements lacked consistency. It found that the first applicant’s studies were not leading to any career plan and instead they were ad hoc. The tribunal identified that the first applicant had not studied for the last few years in concluding that she had only re-enrolled for the purpose of maintaining ongoing residency in Australia.
In paragraph 20 of its reasons the tribunal took into account the applicants’ significant ties to Australia having lived in the country for over seven years.
In paragraph 21 of its reasons the tribunal recognised that since 2008, when the first applicant arrived in Australia, she had only returned to India once for a very brief time which it said indicated that she did not have strong ties to India.
In paragraph 22 of its reasons the tribunal stated that, based on the first applicant’s study history, the value of the proposed courses to her future, her personal circumstances and her migration history, the tribunal was not satisfied that she was a genuine applicant for entry and temporary stay as a student. The tribunal concluded that the applicant did not satisfy cl 572.223 of sch 2 to the regulations and the tribunal also took into account that the first applicant did not possess the required overseas student health cover.
At paragraph 23 of its reasons the tribunal affirmed the delegate’s decision not to grant the first applicant the visa she sought.
The tribunal’s decision was given on 18 February 2016. The applicants had 35 days within which to file their application to this court. That meant they should have filed the application to commence this proceeding on 24 March 2016. Instead, they filed their application to this court on 30 March 2016. They were out of time. They needed leave to bring this case.
The applicants’ grounds for an extension of time were recorded in their application to this court. Those grounds for an extension of time were as follows –
(1)I received the Oral Decision of the Member on 18 February 2016;
(2)I only received the Written Statement of Decision on 23 March 2016;
(3)I was not given written statement within 14 days of oral decision.
(Errors in the original).
Extension of time application
Under s 477(2) of the Migration Act (“Act”) this court is empowered to extend the 35 days for the bringing of an application for judicial review if the court is satisfied that it is in the interests of justice to make such an order.
When entertaining an application for an extension of time the court is required to engage in an assessment of the grounds for seeking judicial review on no more than an impressionistic level. So much was held in MZABP v Minister for Immigration and Border Protection.[1]
[1] [2015] FCA 1391
In any such assessment the court looks to see whether the grounds are arguable, reasonably arguable or sufficiently arguable.
So far as the matters the court hearing the extension of time application investigates, they are well settled. I drew the learning together in MZANW v Minister for Immigration and Border Protection.[2]
[2] [2016] FCCA 2639
So far as the first applicant’s explanation for the delay in this case was concerned I was not satisfied that it was valid. Let me explain why. The applicants argued that the tribunal omitted to provide them with the tribunal’s reasons within 14 days of the verbal pronouncement of the tribunal’s decision. To my way of thinking the applicants misconstrued the operative legislative provisions. Where verbal reasons are given by the tribunal s 368D of the Act applies. That section required the tribunal to make an oral statement that described the reasons of the tribunal, any evidence on which findings of fact were based and which identified the date and time of the decision. That was done in this case.
The Act contains no independent requirement for the tribunal to provide a written statement of the decision when given verbally. Yet the legislation does provide that an applicant is entitled to seek written reasons of a decision given verbally.
If the applicant does seek written reasons of a verbal decision the applicant must apply for those written reasons within 14 days of the verbal decision, such period being calculated to commence when the tribunal makes the verbal decision, relevantly here 18 February 2016. That is the import and effect of reg 4.27B of the regulations.
If the request is made within that 14 day period the tribunal must provide written reasons within 14 days of the date of the request, according to s 368D(4)(b) of the Act.
Here the first applicant made a request for written reasons on 9 March 2016, six days after the 14 day prescribed time had expired. Despite that, the tribunal provided written reasons within 14 days of the first applicant’s request. It provided those written reasons on 23 March 2016. The tribunal complied with applicable requirements.
The third basis stated by the applicants as their reason for requesting an extension of time was erroneous. The fact that the first applicant was not given written reasons within 14 days of the verbal decisions was not to the point. It was the applicants who had 14 days from the verbal decision to seek written reasons. They failed to do so. Instead, they sought written reasons 16 days after the prescribed 14 day period had expired. Yet the tribunal provided written reasons within 14 days of the request made to it.
In those circumstances was an adequate explanation given for the delay in applying to this court? In my view the answer is in the negative. Ground one was erroneous as it was premised on the applicants’ wrongful construction of the time limits involved in the provision of written reasons.
The applicants seem to have proceeded under the mistaken belief that the tribunal would itself provide written reasons whether or not a request for those written reasons was made 14 days after the giving of the verbal decision. That was wrong. If the applicants had wanted written reasons they had to request written reasons within 14 days of the verbal decision and, if such a request had been made, the tribunal had 14 days after the making of such a request to provide written reasons. Had the applicants been more diligent in this case the reasons would have been requested and provided within 28 days of the verbal decision. Had that transpired the applicants would have had more than enough time to have filed this proceeding within the 35 days from the decision that s 477 of the Act prescribed.
So far as any prejudice to the minister was concerned, none was seriously pressed.
Let me now turn to an impressionistic examination of the grounds for the answer to the question whether any grounds were arguable or reasonably arguable.
Ground one
Ground one was the applicants’ contention that the tribunal failed to provide a written statement of its reasons within 14 days of the verbal decision. That ground has already been addressed. It was without merit.
Ground two
Ground two contained an assertion that the tribunal should have adjourned the hearing to allow the first applicant to obtain funds to pay for and produce the overseas student health cover. Several things must be said about this ground. First, the first applicant bore the onus of persuading the tribunal that she satisfied the relevant criteria for the grant of the visa. The requirements of cl 572.225 were a relevant criteria that the tribunal had earlier told the first applicant she needed to demonstrate. She had been put on notice for a considerable amount of time that the documents relevant to her overseas student health cover were in issue.
Second, there was no evidence that the applicants in fact sought an adjournment.
Third, the tribunal stated it was not satisfied that the first applicant was a genuine applicant for entry and temporary stay and that she therefore did not meet cl 572.223 of the regulations. There was no point in adjourning the tribunal hearing for the purpose of obtaining the first applicant’s overseas student health cover because the tribunal’s real concern was the first applicant’s compliance with cl 572.223. There was no unreasonableness in the tribunal’s decision. This ground was also without merit.
Ground three
Under ground three the applicants asserted that the tribunal engaged in unreasonableness in its conclusion about the first applicant’s compliance with cl 572.223 of the regulations. Having read the tribunal’s reasons in detail several times I was not persuaded that the tribunal made any error let alone do I conclude that its finding was legally unreasonable in relation to the first applicant’s residency.
Between paragraphs 15 and 19 of its reasons the tribunal specifically addressed the applicant’s study history, the nature of the courses in which she was enrolled and the reason she did not plan to finish her studies in India. When read fairly it seemed to me that the tribunal’s findings were open. In relation to direction 53 and in relation to cl 572.223(1)(a) the tribunal’s reasons were not unreasonable. Ground three was devoid of merit.
Conclusion
In my view no useful purpose would be served in extending time in this case. None of the grounds of review were arguable or reasonably arguable or sufficiently arguable to warrant further investigation.
I refuse this extension of time application.
I order the first and second applicants to pay the minister’s costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 16 November 2018
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