Raza v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Raza v Minister for Home Affairs [2021] FCA 77

Appeal from: Raza v Minister for Home Affairs & Anor [2019] FCCA 1504
File number: VID 718 of 2019
Judgment of: ANASTASSIOU J
Date of judgment: 10 February 2021
Catchwords: MIGRATION – application for judicial review of decision of Federal Circuit Court refusing to extend time under s 477(2) of the Migration Act 1958 (Cth) – whether primary judge erred in making findings regarding the Tribunal’s consideration of evidence – whether primary judge took into account irrelevant considerations – whether Federal Circuit Court’s reasoning was legally unreasonable – application dismissed
Legislation:

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), s 477

Migration Regulations 1994 (Cth), cl 572.223

Cases cited:

DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91

House v The King [1936] HCA 40; 55 CLR 499

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 37
Date of hearing: 5 May 2020
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Ms J. Lucas
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice and did not appear

ORDERS

VID 718 of 2019
BETWEEN:

AHMAD RAZA

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

ANASTASSIOU J

DATE OF ORDER:

10 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed. 

2.The Applicant pay the costs of the First Respondent.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. The Applicant seeks relief, pursuant to s 39B of the Judiciary Act 1903 (Cth), in relation to a decision of the Federal Circuit Court (Raza v Minister for Home Affairs & Anor [2019] FCCA 1504) to dismiss his application for an extension of time to file an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal).  The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the Applicant a student visa.  The Applicant, in his Originating Application to this Court, contends that the primary judge erred in making certain findings concerning the Tribunal’s consideration of evidence, and that he took into account irrelevant considerations.  The Applicant seeks orders in the nature of a writ of certiorari…

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Details
Case
[2021] FCA 77
Decision Date

CaseChat Overview and Summary

The Applicant, a Pakistani national, sought judicial review of a decision by the Federal Circuit Court of Australia, which had dismissed his application for an extension of time under section 477(2) of the Migration Act 1958 (Cth). The underlying issue was the Federal Circuit Court's refusal to extend the time for the Applicant to lodge his application for judicial review, which was filed 15 months out of time. The Applicant's visa application had been refused on the basis that he was not a genuine applicant for entry and stay as a student, due to his lack of academic progress and long gaps in his studies. The primary judge had to decide whether the Federal Circuit Court erred in making findings regarding the Tribunal’s consideration of evidence, and whether it took into account irrelevant considerations, or if its reasoning was legally unreasonable.

The primary judge concluded that the Federal Circuit Court did not err in finding that it was not reasonably arguable that the Tribunal had failed to consider important evidence. Specifically, the Tribunal had rejected the Applicant’s claim that his father had withdrawn financial support as the reason for his long study gap. The grandfather's affidavit, which the Applicant claimed supported his story, was considered by the delegate and the Tribunal but did not provide past evidence of financial support withdrawal. The primary judge found that the Tribunal had engaged in an active intellectual process in assessing the Applicant’s genuineness as a student. The judge also held that the Federal Circuit Court did not take into account irrelevant considerations and its reasoning was not legally unreasonable.

Accordingly, the application for judicial review was dismissed, and the Applicant was ordered to pay the costs of the First Respondent. The dismissal of the application means that the Tribunal’s decision to refuse the Applicant a student visa stands affirmed. The court's decision highlights the importance of timely filing of judicial review applications and the rigorous scrutiny applied to such applications to ensure they meet the stringent requirements of the Migration Act 1958 (Cth).

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application is dismissed. Background The Applicant is a Pakistani national who arrived in Australia on 5 January 2011 on a student visa that was valid until 14 October 2013. On 10 October 2013, the Applicant applied for a Student (Temporary) (Class TU) visa. On 6 May 2014, the delegate refused his application for a visa on the basis that he was not a genuine applicant for entry and stay as a student and so did not satisfy cl 572.223(2)(b) of the Migration Regulations 1994 (Cth). The delegate took into account the Applicant’s lack of academic progress (having completed only one course of study), the cancellation of his enrolments in other courses and lack of explanation for long gaps in his studies. On 29 May 2014, the Applicant applied to the Tribunal for review of the delegate’s decision. The Tribunal invited the Applicant to attend a hearing on 1 December 2014 to give evidence and present submissions. On 24 November 2014, the Applicant requested that the hearing be postponed, claiming he was unable to prepare for it due to “lots of tension and depression” caused by his mother being ill and booked for surgery. On 26 November 2014, the Tribunal notified the Applicant of its decision to refuse to adjourn the hearing. Among other reasons for refusing the adjournment, the Tribunal noted that the Applicant had not provided evidence that he was unfit to attend. The Applicant did not appear at the hearing on 1 December 2014 and did not provide any evidence regarding his mother’s illness or surgery. On 2 December 2014, the Tribunal affirmed the delegate’s decision not to grant the Applicant a visa. In its reasons, the Tribunal noted, inter alia, that:(1)the Applicant had been invited to attend the hearing;(2)the Applicant had requested an adjournment of the hearing on the basis that he could not prepare for the hearing on account of the tension and depression he claimed had been caused by his mother’s illness and impending surgery;(3)the Tribunal refused to adjourn the hearing based on the lack of evidence that the Applicant was unfit to attend the hearing, and the Applicant was advised that the hearing would proceed;(4)the Applicant failed to attend the hearing;(5)the Applicant did not provide any supporting evidence about his mother’s condition and did not contact the Tribunal to explain his non-attendance at the hearing; and(6)the Applicant had provided limited supporting evidence to explain his extended study gap, having been in Australia for over three years but having completed only one single short course.The Tribunal was not satisfied that the Applicant met an essential requirement of the Regulations, namely that he was a genuine applicant for entry and stay as a student. Accordingly, the Tribunal affirmed the delegate’s decision to refuse a further student visa. Before the Circuit Court On 25 February 2016, the Applicant filed an application in the Circuit Court for judicial review and sought an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) to file the application. His application was 15 months out of time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The Minister filed written submissions on 28 April 2020 addressing the grounds of review raised in the Applicant’s written submissions. At the hearing on 5 May 2020, counsel for the Minister did not object to reliance on the four grounds set out in the Applicant’s written submissions in addition to the grounds in the originating application. The application was therefore argued on the basis of the grounds articulated in the Applicant’s written submissions and the two grounds raised in the originating application. I will address each of those grounds in my reasons below. Ground 1 of the originating application — the Tribunal’s consideration of the grandfather’s affidavit (Ground 2 of the written submissions) Ground 1 of the originating application in this Court is the same as ground 2 in the Applicant’s written submissions. This ground was raised in the Circuit Court as ground 3. The Applicant claims that the primary judge erred in finding that it was not reasonably arguable that the Tribunal had failed to consider important evidence, being the Applicant's grandfather's affidavit. The Applicant’s long study gap, between August 2012 and October 2013, was a significant matter considered by the Tribunal in assessing whether the Applicant was a genuine applicant for entry and stay in Australia as a student: cl. 572.223(2) of the Regulations. Before the Circuit Court, the Applicant claimed that the Tribunal failed to consider important supporting evidence about the reason for his study gap, namely that his father had withdrawn financial support. He submitted that his grandfather’s affidavit supported his claim that his father had withdrawn financial support. The primary judge considered this ground in detail from paragraphs [59] to [74] of his reasons. His Honour observed that the Tribunal had effectively rejected the Applicant’s assertion that his father had withdrawn financial support and that was the reason why the Applicant had a long study gap period. The primary judge also observed that the delegate had clearly considered the grandfather’s affidavit, and that the Tribunal had in turn clearly considered the delegate’s decision and the grandfather’s evidence. The primary judge held that the grandfather’s affidavit was, in effect, forward-looking — it provided assurance that the Applicant would be provided with financial support in the future, but did not support a finding that the Applicant’s father had earlier withdrawn financial support. At [69] of his reasons, the primary judge held: I do not accept that it is reasonably arguable that the grandfather's affidavit was highly corroborative of the issue whether the father had withdrawn his financial support or of the explanation for the applicant's extended period of absence from study. The affidavit addresses the grandfather's willingness to provide financial support in the future. It did not speak to past events but to the future. At [72] of his reasons, the primary judge held that the grandfather's evidence was not of fundamental importance to the Tribunal's consideration of whether the Applicant had provided an adequate explanation for the extended period of his non-enrolment in his course of study, and reiterated that the delegate had considered the grandfather's affidavit and, in turn, the Tribunal clearly considered both the delegate’s decision and the grandfather's evidence. At [73], his Honour concluded that the Tribunal engaged in an active intellectual process in the assessment of whether it should be satisfied that the Applicant was a genuine applicant for entry and stay in Australia as a student.