RAMEEZ v Minister for Immigration
[2016] FCCA 1408
•10 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMEEZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1408 |
| Catchwords: MIGRATION – Judicial review of a decision of the Second Respondent – application for a Student (Temporary) (Class TU) visa – application filed out of time – extension of time sought pursuant to s.477 of the Migration Act 1958 (Cth) – leave not granted. |
| Legislation: Migration Act 1958 (Cth), ss.379A(4), 397C(4), 477, 477(1), 477(2) Migration Regulations 1994 (Cth), reg.1.40A, Sch.2 cls. 570.232, 571.232, 572.231, 573.223(1), 573.231, 573.223, 574.231, 575.321 |
| Cases cited: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | SHAIKH RAMEEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 632 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 18 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Ms McInnes |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Applicant’s application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 632 of 2015
| SHAIKH RAMEEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (‘the Act’) and if granted judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 18 February 2015 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa (‘the visa’).
The Court is not satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time as sought by the Applicant.
Background
The Applicant arrived in Australia on 7 May 2010, just over six years ago, as the holder of a Student (Class TU) visa which ceased on 15 March 2012. The Applicant currently has a Bridging visa E with an 8207 (no study) condition.
On 19 March 2012, the Applicant applied for the visa.
On 4 April 2012, a delegate of the First Respondent wrote to the Applicant and requested he provide additional information on several matters. The delegate noted that departmental records showed that the Applicant:-
a)failed to complete any registered course of study since arriving in Australia on 7 May 2010;
b)had not studied since 27 October 2010; and
c)had not been enrolled in a registered course of study since 29 September 2010.
On 2 May 2012, the Applicant provided a letter purporting to explain his study choices and three Certificates of Enrolment (COE) for:-
a)a Certificate IV in Business from 23 July 2012 to 14 December 2012;
b)a Diploma of Management from 11 February 2013 to 5 July 2013; and
c)a Bachelor of Business from 15 July 2013 to 31 July 2015.
On 19 June 2012, a delegate of the First Respondent refused the visa application on the basis that the Applicant did not meet the visa requirements in cl.573.223 of Sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because the delegate was not satisfied that the Applicant genuinely intended to stay temporarily in Australia.
On 8 May 2014, the first Migration Review Tribunal affirmed the First Respondent’s decision. On 1 December 2014, an order was made in this Court quashing the decision of the first Migration Review Tribunal and remitting the matter to the Tribunal to be determined in accordance with law.
On 10 December 2014, the Tribunal, differently constituted, wrote to the Applicant explaining the remittal of his matter.
On 11 December 2014, the Tribunal called the Applicant to confirm his postal address. The Tribunal officer left a phone number so that the Applicant could return the call.
On 3 January 2015, the Applicant provided updated email and postal addresses. The Applicant requested that notifications be sent by email.
On 15 January 2015, the Tribunal wrote to the Applicant at his postal address inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The scheduled hearing date was 11 February 2015. Contained in that hearing invitation was a request for the Applicant to provide information to the Tribunal, including, relevantly, the following:-
“…
1. A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2. Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion.
4. An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
The Tribunal will assess whether you intend genuinely to stay in Australia temporarily as required by clause 572.223(1)(a) of the Migration Regulations.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to Direction No. 53.
The Tribunal requests that the written statement and other evidence are provided to the Tribunal at least 7 days before the hearing date.”
On 10 February 2015, the Applicant contacted the Tribunal to request a rescheduling of his hearing before the Tribunal on the basis that he was unwell. The Applicant provided a medical certificate.
On 11 February 2015, the Tribunal rescheduled the hearing to 18 February 2015. The Applicant was notified by email and by post of the agreement to his request that the hearing be rescheduled. Furthermore, the new hearing date and time were provided to the Applicant.
On 18 February 2015, the Applicant appeared before the Tribunal at a hearing. He provided on that day a written document in support of his application. It was headed “Personal Statement” and appears in the evidence before the Court as contained in the Court Book filed and on page 96 thereof.
The Tribunal made its decision on 18 February 2015 to affirm the decision not to grant the Applicant a Student (Temporary) (Class TU) visa. On 19 February 2015, the Tribunal wrote to the Applicant at the address for service provided by the Applicant to the Tribunal to notify him of its decision.
On 24 February 2015 the Applicant sent an email to the Tribunal to make further submissions on his application. On 27 February 2015 the Tribunal wrote to the Applicant to advise that its decision had been made on 18 February 2015 and that it would not be reopening the matter.
On 11 March 2015 the Tribunal’s letter of 19 February 2015 was returned to the Tribunal with the words “NOT APPLICABLE” written on the envelope.
On 18 March 2015, when the Tribunal became aware that the Applicant claimed he had not received a copy of the Statement of Decision and Reasons of the Tribunal of 18 February 2015 (‘the Decision Record’), the Tribunal emailed a copy of its Decision Record to the Applicant. Whilst the Applicant claims that he did not receive a copy of the Decision Record prior to that date, he agreed, in submissions made before the Court on the hearing of the matter, that he had received the Tribunal decision on 18 March 2015.
On 25 March 2015, the 35-day period for applying to the Federal Circuit Court of Australia for review of the Tribunal’s decision expired. Two days later, and being 27 March 2015, the Applicant filed the application for review of the Tribunal’s decision, in the Court.
The Tribunal’s findings
The Tribunal correctly determined that the issue before it was whether the Applicant met the criterion in cl.573.223(1) of Sch.2 to the Regulations. The issue for the Tribunal was whether, at the time of its decision, the Applicant met the enrolment requirements for a student visa. The Tribunal noted that, with limited exceptions, not relevant to the Applicant’s case, cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations required 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 principal course and is of the type specified under reg.1.40A of the Regulations for the subclass at the time of application.
At the hearing before the Tribunal, the Applicant conceded that he had not studied since March 2012 and claimed that he could not do so as the no-study condition on his bridging visa prevented him from doing so. He further stated that he had attempted to enrol on a number of occasions, in a variety of courses, but, because he had a bridging visa E, he was “blocked” from the system.
The Applicant confirmed to the Tribunal that, at the time of hearing, which was also the time of decision, he was not enrolled in or subject to an offer of enrolment in a requisite course of study because he had been waiting for his student visa to be granted.
The Tribunal noted that the Applicant did not ask the Department for the no study condition to be removed from his bridging visa. The Tribunal noted, in paragraph 13 of the Decision Record, that it put to the Applicant at hearing that not having a substantive visa or the right to study did not preclude a conditional offer of enrolment being made to him by a course provider.
As there was no evidence before the Tribunal that the Applicant was, at the time of decision, enrolled in or had a current offer of enrolment in any applicable course of study, it found that the Applicant did not meet cls.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations. The Tribunal, therefore, affirmed the delegate’s decision.
In his post-decision submission to the Tribunal, dated 24 February 2015, amongst other things, the Applicant attached a Certificate of Enrolment dated 8 July 2014 for Certificate IV in Human Resources at Danford College commencing on 11 August 2014 and ending on 7 February 2015. The Applicant alleged that, due to the study restrictions associated with his bridging visa, the Danford College subsequently suspended his enrolment. The Applicant submitted that he was stuck as, on one hand, he needed a current Certificate of Enrolment to be granted the visa and, on the other hand, he could not get a current Certificate of Enrolment because of the study restriction imposed by his bridging visa. The Tribunal, in response, advised the Applicant that it was functus officio and would not be re-opening his case.
Consideration
Before the Court is the Applicant’s application and affidavits affirmed by the Applicant on 27 March 2015, which annexed the Tribunal Decision Record, which went to the extension of time application, 27 April 2016 and 17 May 2016, both of which went to enrolments and an offer of enrolment and both of which post-dated significantly in time, the Tribunal decision. The Applicant relies upon those affidavits in these proceedings. He has not filed any written submissions.
The First Respondent submits to the Court that it should refuse the application for an extension of time and dismiss the application for judicial review filed by the Applicant as incompetent under s.477(1) of the Act.
The relevant considerations on an application for extension of time are well-established. They are set out in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at 348 -349. The relevant considerations for the Court, whilst not exhaustive, include the following:-
Delay
a)the extent of the delay. In this case, the delay is two days. It is a minimal delay; and
b)the reason for the delay.
The First Respondent argues that the Court should find the Applicant has not given a persuasive reason for the delay, such that it is necessary, in the interests of the administration of justice, to make the order under s.477(2) of the Act. The Court agrees with this submission finding there is no acceptable explanation put forward by the Applicant to explain the delay.
The Tribunal’s decision was made on 18 February 2015. The Tribunal sent its Decision Record of that date to the last address for service provided to the Tribunal by the Applicant in connection with the review on 19 February 2015. The Tribunal provided thereafter an additional copy of the decision to the Applicant via email on 18 March 2016.
The Applicant claims that he did not receive the letter sent by post. Even though that letter was returned to the Tribunal on 11 March 2015, it was sent to the last address for service provided by the Applicant. The method of service complied with the prescribed methods of delivery under s.379A(4) of the Act.
Pursuant to s.397C(4) of the Act, the Applicant was deemed to have received the document seven working days after the date of the document. The Decision Record was forwarded to the Applicant by notification of decision of 19 February 2015. Additionally, the Applicant received a copy of the decision from the Tribunal by email on 18 March 2015. The Applicant, at that time, still had one week within which to file his application for judicial review. He provides no explanation for his failure to file his application in time in respect of that period.
Whether there is any prejudice to the Respondents
The First Respondent concedes there is no prejudice that could not be satisfied by an order of costs.
The impact on the Applicant
The impact will be significant, as the Applicant will be precluded from proceeding with his substantive application.
The interests of the public at large
The timely hearing of applications before the Court is in the interests of the public at large and of those other litigants seeking to use the Court’s resources.
The merits of the substantive application
The First Respondent argues that it is not necessary in the interests of justice to make an order extending the time period when considering the merits of the Applicant’s application for judicial review.
The First Respondent referred the Court to the decision of Mortimer J of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, (‘MZABP’) when, in considering an extension application under s.477(2) of the Act, her Honour observed at 62 that:-
“…it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage…”
The Court has considered whether the Applicant’s grounds as set out in his substantive application, are “plainly hopeless”.[1] The Court has considered what Mortimer J in MZABP at 63 said:-
“The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success.””
[1] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, [62].
The Applicant’s first two grounds of his application, filed 27 March 2015, are “plainly hopeless”. His first purported ground of review is “unfair dismissal”. His second is that the Tribunal member (Magda Wysocka) wasn’t justified.
The Applicant’s third ground is set out as follows:-
“She applied limitation of regulations stating that applicant was failed to submit (sic) confirmation of enrolement (sic) (COE), despite of mentioning to her that applicant has been blocked by Immigration system, as applicant doesn’t hold rights for study under Bridging Visa “E”. Almost all college Institutions failed to produce confirmation of enrolment to applicant due to bridging visa E restrictions. This is the second time error made by tribunal. Applicants is just stuck and has become a victim again. The decision made by tribunal is totally injustified (sic).”
This third ground above is really a complaint that the Tribunal did not accede to the Applicant’s claim. The Applicant’s complaint that the Tribunal did not give sufficient weight to his submission does not rise to the level of an arguable case, as submitted by counsel for the First Respondent.
No jurisdictional error attends the decision of the Tribunal. It was plainly open to it to conclude that there was no necessary evidence before it. Indeed, it is conceded by the Applicant that the Applicant was not enrolled, or had a current offer of enrolment, in any applicable course of study. The Tribunal’s reasons for decision make clear that the Tribunal considered the evidence given by the Applicant, including his attempts to obtain a certificate of enrolment and, thereafter, the basis for its conclusion that the necessary legal framework had not been satisfied.
I note also that the Tribunal commented in its Decision Record that the Applicant did not ask the Department for the no study condition to be removed from his bridging visa, and that the Tribunal put to the Applicant at the hearing that not having a substantive visa, or the right to study, did not preclude a conditional offer of enrolment being made to him by a course provider.
None of the affidavit evidence filed by the Applicant on this hearing was evidence that the Applicant was enrolled, or had a current offer of enrolment, in any applicable course of study at the time of the Tribunal’s decision. That affidavit evidence also undermines the Applicant’s argument before the Tribunal that he was unable to enrol in a course by being blocked from the immigration system. However, as I indicated earlier in these reasons, that affidavit evidence is not relevant to whether the Tribunal made a jurisdictional error.
The Court concludes, there being no acceptable explanation for the delay, and there being no merit in the substantive application such that an arguable case is raised, that the Court should refuse the application for an extension of time under s.477 of the Act. Costs shall follow.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 10 June 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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