Raza v Minister for Immigration
[2018] FCCA 3456
•27 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAZA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3456 |
| Catchwords: MIGRATION – Student visa – extension of time – application lodged electronically into non-functioning computer system – applicant held substantive visa at time of electronic filing – application lodged personally next business day – applicant by then not holder of a substantive visa – criteria applicable preclude applicant from meeting applicable requirements for visa – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.347, 349, 351, 357A, 360, 474, 476, 477, 495B Migration Regulations 1994, cl.573.211 |
| Cases cited: Applicant A2 of 2002 v MIMIA [2003] FCA 576 Caswell v Dairy Produce Quota Tribunal for England & Wales [1990] 2 AC 738 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Johnson v Williams [2000] FCA 3; (2000) 58 ALD 1 Mohammed v Minister for Immigration and Border Protection (2015) 231 FCR 243 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Other materials cited: WMC Gummow, Change and Continuity, Statute, Equity and Federalism, Oxford University Press (1999) | ||
| Applicant: | MUHAMMAD TAYYAB RAZA | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1171 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 26 November 2018 |
| Date of Last Submission: | 26 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 November 2018 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondents: | Ms Ward |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1171 of 2016
| MUHAMMAD TAYYAB RAZA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 3 June 2016, the applicant seeks an extension of time to apply for judicial review under s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the second respondent (Tribunal) dated 18 June 2015. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse the applicant a Student (Temporary) (Class TU) visa.
The visa application was lodged electronically into a non-functioning computer system operated by the Department of Immigration and Border Protection. At that time, the applicant held a substantive visa which was a requirement for the visa application. When the application was lodged personally on the next business day, the applicant no longer held a substantive visa. Upon the criteria which was then applicable to the grant of the visa the applicant was precluded from meeting the eligibility requirements of the visa application. Through no fault of his own, his application to the Tribunal has not been considered on its merits.
The applicant, who has completed his Batchelor of Commerce undergraduate degree, wishes to complete a Masters of Accounting. He considers that Australian tertiary qualifications are internationally well recognised and seeks to advance himself professionally. He does so at a time which he described aptly as his prime time.
Though I must refuse the application, I endorse the observations of Perry J in Mohammed v Minister for Immigration and Border Protection,[1] that a case of the present kind may well qualify for Ministerial intervention. The result of this visa application undermines the suggestion that the applicant has been treated in a way which is either fair or just. Section 495B makes provision for the Minister to substitute a more favourable decision in cases of computer based decisions where the computer was not functioning correctly. Though that provision does not apply, s 351 does confer power on the Minister to substitute a more favourable decision than that of a Tribunal in a Part 5-Reviewable decision. There is every reason why the applicant might ask that the Minister do so.
[1] (2015) 231 FCR 243, [33].
Background
The applicant, a Pakistani citizen aged 28 years, first arrived in Australia as the holder of a Student (Temporary) (Class TU) (Subclass 573) visa on 11 May 2008.
On Friday, 13 March 2015, the applicant lodged his application on-line for a Student (Temporary) (Class TU) Subclass 573 visa. The online system was broken. He made several attempts to lodge the application online but was unable to do so. He took the initiative of taking a screen shot of his computer to demonstrate his failed attempts to do so.
On Monday, 16 March 2015, the applicant personally applied for a further Student (Temporary) (Class TU) (Subclass 573) visa. On the date of application, the applicant did not hold a substantive visa as his last substantive visa had expired on Sunday, 15 March 2015.
On 31 March 2015, the Department notified the applicant that his application for a student visa had been refused. A delegate of the Minister refused the visa application on the basis that the applicant did not hold a substantive visa at the time of lodgement, therefore the applicant did not satisfy the requirements of cl 573.211(3)(d) of the Migration Regulations1994 (Cth) (Regulations).
On 15 April 2015, the applicant applied to the then Migration Review Tribunal for review of the delegate’s decision.
On 7 May 2015, the Tribunal invited the applicant to attend a hearing on 18 June 2015 to give evidence and present arguments relating to the decision under review.
On 18 June 2015, the Tribunal was notified that World Wide Visa had been appointed as the applicant’s authorised representative. On that same date, the applicant and his representative appeared before the Tribunal.
On 19 June 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa. The Tribunal found that the applicant had made a valid application for merits review under s 347 of the Act. The Tribunal also found that the issue in the application before it was whether the applicant met cl 572.211 of the Regulations.
At the Tribunal hearing, the applicant told the Tribunal he understood that the delegate had refused his application because he was not holding a substantive visa at the time his application was lodged. Critically, he confirmed that he had previously been granted a visa on the basis of Schedule 3 criteria. The applicant told the Tribunal that he believed the delegate’s decision should be reviewed because he said he had attempted to lodge an application on Friday, 13 March 2015, but that there was an error with the Department’s online application system. The applicant provided the Tribunal with a copy of the computer screenshot which he had taken thereby demonstrating his failed attempts to lodge the application. The Tribunal evidently accepted that evidence.
The Tribunal noted that if the applicant had not satisfied cl 573.211 of the Regulations, it was not a matter in which the Tribunal had discretion. The generality of that statement concealed the true circumstances. The Department’s online computer system posed the only relevant barrier to the successful lodgement of the visa application. Had the application been lodged successfully on that date, the applicant would not have been subject to the requirements of cl 3005. That is because the visa application would have fallen for consideration under cl 572.211(2). Once the application was lodged personally, the applicant no longer held a substantive visa and for that reason only he was obliged to meet the criteria prescribed by cl 572.211(3). One of the criteria under cl 572.211(3) – which was not a criteria under cl 572.211(2) – was that the applicant satisfied Sched 3, criterion 3005.
The Tribunal found that to meet cl 572.211(3)(d), the applicant must satisfy the criterion in cl 3005 of Schedule 3 which relevantly requires that a visa entry or permit has not previously been granted to the applicant on the basis of any of the criteria in Schedule 3. The applicant had previously been granted a student visa, which expired on 15 March 2015, under cl 3005 of Schedule 3 of the Regulations. As the applicant had previously been granted a visa on the basis of Sched 3 criteria, he was ineligible to satisfy cl 3005 and so could not satisfy cl 573.211(3)(d).
The Tribunal affirmed the delegate’s decision to refuse the application.
The applicant decided that the most efficient way forward was to seek Ministerial intervention. He did so. His request was denied. Once the request had been denied the applicant turned to this court.
Procedural history
On 3 June 2016, the applicant filed an application for judicial review of the Tribunal’s decision. As the application was 316 days out of time, the applicant sought an order that the time for making the application be extended under s 477 of the Act.
The applicant swore an affidavit on 3 June 2016 exhibiting the Delegate’s Decision Record, the Tribunal’s Statement of Decision and Reasons together with correspondence from the Department to the applicant dated 20 May 2016 denying the applicant’s request for Ministerial intervention.
By Response filed on 23 June 2016, the Minister opposed the making of the orders sought in the application on the basis that the application did not establish any jurisdictional error in the Tribunal’s decision.
The matter was listed for directions hearing on 9 November 2016. On that date orders were made, by consent, listing the matter for hearing of the application for an extension of time, and, if granted, Final Hearing. Further orders were made regulating the filing by the applicant of any amended application, affidavits and written submissions.
Consideration
By s 477(1), a 35-day time limit is fixed for the making of an application to this court for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2). The power to extend time is expressed as being subject to two conditions: (1) an application has been made in writing for such an extension; (2) the court is satisfied that it is necessary in the administration of justice to do so.[2] The first of those conditions was met by the request for an extension as made in the application for judicial review. The second condition is in issue.
[2]For the avoidance of doubt, the 35 day time limit commences to run from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to enlarge time for the commencement of proceedings is a broad one. It is well settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent and the merits of the substantive application.[3]
[3]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
As the Tribunal’s decision was made on 18 June 2015, the applicant had until 23 July 2015 to file his application for judicial review: s 477(1). The application was filed on 3 June 2016, being 316 days out of time.
The application for judicial review was filed out of time for the reason that the applicant had decided it was appropriate to seek Ministerial intervention before approaching this court for relief. The Minister submitted that Ministerial intervention is not a valid reason for delay in filing an application.[4] It was further submitted that a request for Ministerial intervention was not merely an alternative course, but an inconsistent course which necessarily accepted the correctness of the Tribunal’s decision and abandons any challenge to the decision of the Tribunal.[5]
[4]Citing Applicant M29 of 2001 v MIMIA [2003] FCA 1266, [10]-[12] (Weinberg J); Applicant A2 of 2002 v MIMIA [2003] FCA 576, [8]-[10] (von Doussa J).
[5] Citing WZAWB v Minister for Immigration [2016] FCCA 1345, [84] (Lucev J).
I reject the Minister’s submission that the applicant had failed to provide a reasonable explanation for the delay. The applicant, who is self-represented, adopted a course which he said he had taken on advance and which he considered to be the most efficient way forward. He deliberately chose not to approach the court until he had obtained a response to his request for intervention. The Minister’s submission that the applicant’s request for Ministerial intervention was not a valid reason for delay ignores the circumstances in which the visa application had been rejected by the Department’s online filing system. It ignores that the consequences for the applicant meant that his application was subject to criterion 3005 in circumstances where it would not otherwise have been so. The circumstances in which delay falls to be evaluated are fact dependent and case specific.
Delays of similar periods as has occurred in the present case have not always been determinative of the refusal of relief in other quite different circumstances: see Re Refugee Tribunal Ex parte Aala;[6] Plaintiff M13/2011 v Minister for Immigration and Citizenship;[7] and compare Caswell v Dairy Produce Quota Tribunal for England & Wales;[8] Johnson v Williams;[9] see also McGee, Limitation Periods.[10]
[6](2000) 204 CLR 82, [82]-[83] (Gaudron and Gummow JJ).
[7][2011] HCA 23, [1], [10] (Hayne J).
[8][1990] 2 AC 738.
[9][2000] FCA 3; (2000) 58 ALD 1 at [24]-[25].
[10]7th Ed (2014) at [9.006]-[9.009].
The Minister did not submit there was any relevant prejudice.
Concerning the question of merits, the Minister submitted that the substantive application was without merit. The question was whether the substantive application raised issues which were sufficiently arguable to support a conclusion that it was in the interests of the administration of justice to grant an extension of time.
As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[11] MZABP v Minister for Immigration and Border Protection.[12]
[11][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[12][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. Her Honour stated:[13]
. . . 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 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. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[14]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
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” . . .
[13][2015] FCA 1391, [62]-[63]
[14](1998) 195 CLR 516 at [7]-[9].
These statements reflect the reasoning in Spencer v Commonwealth.[15] There the case sought to be brought by the plaintiff was dismissed summarily by the primary judge whose decision was affirmed by a Full Court. Spencer’s claim was that certain restrictions which had been placed over his property constituted the acquisition of property other than on just terms. However unusual or ambitious the claim might have appeared, the High Court held that the argument could not be considered to have no reasonable prospect of succeeding in circumstances where a similar claim had been reserved for future consideration in another appeal to that Court. The plaintiff was held to be entitled to proceed to trial. While the claim was ultimately dismissed,[16] the approach taken in Spencer illustrates the lower threshold which applies in deciding whether a case should be regarded as being arguable (whether sufficiently or reasonably) or to have sufficient prospects of success. It is also instructive, whether the application be for summary judgment, an extension of time and, by extension, reinstatement.
[15](2010) 241 CLR 118.
[16]Spencer v Commonwealth [2015] FCA 754 (Mortimer J).
The application relied upon a failure to afford him natural justice and the denial of an opportunity to present evidence at a merits review before the Tribunal. The gravamen of those grounds rested upon the failure of the Department’s online lodgement system.
The Minister relied upon the exhaustive statement of natural justice in relation to the conduct of the review of a Part 5-Reviewable decision: s 357A. It was submitted that the applicant had been invited to a hearing and afforded an opportunity to give evidence and present arguments on the issues arising in relation to the decision under review: s 360. The applicant had annexed a copy of the Delegate’s decision to his application for a merits review by the Tribunal and so was on notice of that issue in any event: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[17]
[17] (2006) 228 CLR 152, [35].
It was submitted that the court had no jurisdiction to review a decision to refuse a request for Ministerial intervention: ss 474(7), 476(2).
The Minister relied upon Mohammed v Minister for Immigration and Border Protection,[18] where Perry J held that it was not arguable that a valid visa application had been made online where it had been rejected:
In my view, there is no error in the Tribunal’s finding that no valid visa application was lodged on 23 May 2012 and that the later valid application could not apply retrospectively, as the Court below held.
First, under s 45(1), subject to the Act and Regulations, a non-citizen who wants a visa “must apply” for a visa of a particular class. However, it is only where the application is “valid” that the Minister is under an obligation to consider it by virtue of s 47(1) of the Act. If an application is not a valid application, the Minister is not to consider it (s 47(3)). In this regard, s 47(4) confirms a decision that the application is not valid is not a decision to refuse the visa. It follows that the Act prevents the Minister, and therefore the Tribunal standing in the Minister’s stead by virtue of s 349 of the Act, from considering a purported visa application if it is not valid: Wu v Minister for Immigration and Ethnic Affairs;[19]Minister for Immigration and Multicultural Affairs v Hayman.[20] In this statutory scheme, there is no room for retrospective validation of an invalid application. An application is valid under s 46(1) “if, and only if” it meets the requirement for a valid application at which point the obligation to consider the application is engaged;[21] Onea v Minister for Immigration and Multicultural Affairs;[22] Muradzi v Minister for Immigration and Citizenship.[23]
Secondly, the conditions with which a valid application must comply are set out in s 46(1) which provides that: . . .
The passages quoted above do not appear to have been considered since.
[18] (2015) 231 FCR 243, [33].
[19](1996) 64 FCR 245, 261 (Carr J), 278-279 (R D Nicholson J, Jenkinson J agreeing).
[20] [1999] FCA 217; (1999) 90 FCR 120, [21]-[22] (Finkelstein J).
[21] Wu, supra at 261 and 279-280.
[22] [1997] FCA 1472; (1997) 80 FCR 254 at 261 (Finkelstein J).
[23] [2011] FCA 976, [34]- [35] (Tracey J).
As her Honour held, the Act prevents the Minister, and therefore the Tribunal standing in the Minister’s stead by virtue of s 349 of the Act, from considering a purported visa application if it is not valid.
Upon those principles, the Tribunal was obliged to treat the failed attempt at online lodgement as constituting a valid visa application. Upon the facts of the case, the Tribunal was further obliged to apply criterion 3005 to the application that was lodged by hand on the next business day. The Tribunal was obliged to find that the applicant was not eligible for consideration under criterion 3005. The Tribunal was only able to conclude that the criteria of cl 573.211(3) were not met.
As the applicant was self-represented I have re-examined the materials comprised in the court book. In my opinion, the matters addressed above speak loudly to the legal unreasonableness of the outcome of this case. However, I do not consider that legal unreasonableness is an avenue by which the Tribunal’s decision is open to challenge. Though legal unreasonableness may be advanced as a basis for judicial review, there was nothing unreasonable in the approach taken by the Tribunal or the process it adopted. The legal unreasonableness was engaged at the anterior point of the Departmental failure of its online – and apparently preferred means of – lodgement. The apparent absence of an administrative discretion to extend time and the delegate’s decision based upon criterion 3005 is redolent of the unconscientious reliance on statutory provisions of which WMC Gummow wrote extra judicially in Change and Continuity, Statute, Equity and Federalism.[24]
[24] Oxford University Press (1999), pp. 65-70.
Conclusion
As I consider that there is no arguable merit to the Grounds of review advanced by the applicant and have identified no other basis for legitimate complaint, I cannot conclude that it is in the interests of the administration of justice to grant an extension of time. The application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 27 November 2018
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