Sandan v Minister for immigration & Anor
[2015] FCCA 1166
•19 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDAN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1166 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file judicial review application – where no application in writing made to extend time – whether mandatory to comply with requirement to file affidavit explaining delay and showing why interests of administration of justice required time to be extended – whether time able to be extended – consideration of factors in relation to an extension of time. WORDS AND PHRASES – “and” – “must” – “evidence”. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 13.03C(1)(c), 44.05 Migration Act 1958 (Cth), Division 5, Part 5, ss.65, 357A, 360, 360A, 362B, 379A, 379C, 476, 477 Migration Legislation Amendment Act 2009 (No. 1) (Cth) |
| Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 BZAER v Minister for Immigration & Anor [2014] FCCA 813 Chen v Minister for Immigration & Anor [2014] FCCA 271 Comcare v A’Hearn (1993) 45 FCR 441 Islam v Minister for Immigration & Anor [2013] FCCA 1687 Johnson v Minister for Immigration & Anor [2015] FCCA 610 Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 141 ALD 619 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1, (2014) 308 ALR 280, (2014) 139 ALD 50 Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 MZZFI v Minister for Immigration & Border Protection [2013] FCA 1337 MZZFI v Minister for Immigration & Border Protection & Anor [2014] HCASL 101 MZZRO v Minister for Immigration & Anor [2014] FCCA 882 Re The Licensing Ordinance (1968) 13 FLR 143 Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254 SZIGQ& Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 SZRBN & Ors v Minister for Immigration & Anor[2012] FMCA 384 SZRBN v Minister for Immigration & Citizenship [2012] FCA 984 SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 SZTDM v Minister for Immigration & Anor (No. 2) [2013] FCCA 2060 SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 WZASC v Minister for Immigration & Anor [2013] FCCA 1452 WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 |
| Applicant: | SUNIL SANDAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 381 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 April 2015 |
| Date of Last Submission: | 29 April 2015 |
| Delivered at: | Perth |
| Delivered on: | 19 May 2015 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondents: | Mr P Corbould |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 29 April 2015)
The application be dismissed.
Reasons for Judgment to be published from Chambers at a later date.
The applicant pay the first respondent's costs in the sum of $6825 by 13 May 2015.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 381 of 2014
| SUNIL SANDAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding commenced on 26 November 2014 by the applicant filing an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review (“Judicial Review Application”) of a decision of the Migration Review Tribunal made on 20 October 2014 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision made on 4 February 2014 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to refuse the applicant a Student (Temporary) (Class TU) visa (“Student Visa”) under the Migration Act.
The Tribunal Decision was made on 20 October 2014 and the Judicial Review Application was filed on 26 November 2014. In order for the Judicial Review Application to have been lodged within 35 days it was required to be filed by 24 November 2014. The application was therefore lodged two days outside the time period set by s.477(1) of the Migration Act.
The applicant did not tick the box on his Judicial Review Application form indicating that he was applying for an extension of time, and the Judicial Review Application does not specify any grounds for an extension of time. The applicant did not otherwise make any application in writing for an extension of time, and did not file an affidavit in support of the Judicial Review Application.
On 18 February 2015 a Registrar of the Court ordered that the applicant file and serve on or before 8 April 2015 any amended application giving particulars of the grounds of review, and any affidavits upon which he intended to rely at hearing. The application was listed for hearing on 29 April 2015, and the applicant was ordered to file and serve an outline of submissions not less than 14 days before the hearing.
The applicant has not filed and served any amended application or any affidavits, nor any outline of submissions prior to the hearing.
When the application was called on 29 April 2015 there was no appearance by the applicant. The Court, having read the papers, most significantly the Tribunal Decision in the Court Book (“CB”) and the Minister’s submissions, determined that the application would not be dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) for non-appearance by the applicant, but rather it would be ordered that the application be dismissed, and therefore made the following orders:
1.The application be dismissed.
2.Reasons for Judgment to be published from Chambers at a later date.
3.The applicant pay the first respondent's costs in the sum of $6825 by 13 May 2015.
These Reasons for Judgment are the Reasons for Judgment referred to in order 2 of the Court’s orders of 29 April 2015.
Extension of time
Minister’s submissions
The Minister submits that:
a)in the absence of an application meeting the requirements of s.477(2) of the Migration Act an application for an extension of time under s.477(1) of the Migration Act is incompetent: citing WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 at [12] per Judge Lucev (“WZASQ”);
b)as there is no competent application for an extension of time before the Court, the application for review is out of time and should be dismissed; and
c)in any event, the applicant’s grounds of review do not have merit, and for that reason any extension of time application should be refused.
Whether a mandatory requirement for application to extend time to be made in writing
Section 477 of the Migration Act relevantly provides that:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court 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 Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The Judicial Review Application was lodged two days outside the time period set by s.477(1) of the Migration Act. The application is therefore incompetent by virtue of s.477(1) of the Migration Act unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act.
In WZASQ this Court observed as follows:
10 Section 477(2) of the Migration Act 1958 requires that before the Court can make an order extending time:
a) there has to be an application for an order to extend time;
b) the application for an order to extend time must be in writing; and
c) the application must specify why it is that the applicant considers that it is necessary in the interests of the administration of justice to make that order. In context, this last requirement makes it clear that the application must be one made by the applicant, for it is for the applicant to specify why it is that it is necessary in the interests of the administration of justice to make an order extending time.
11 … It is not open to the Court, whether by a Registrar or a Judge, even by consent, to make an order either waiving or avoiding the requirements of s 477(2) of the Migration Act 1958. There are no provisions of the Migration Act which allow a Registrar or Judge to do so. As the Federal Magistrates Court of Australia observed in SZRBN & Ors v Minister for Immigration & Anor: … [[2012] FMCA 384 (“SZRBN”)]
“[28] In my view the language of s 477(2) is plain. The relationship between its constituent parts, s 477(2)(a) and s 477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the court to consider the matter in s 477(2)(b) without an application pursuant to s 477(2)(a). This is not a matter as elsewhere in the Act where the court may act on its own motion (see for example s 486F(3)(a)).
[29] The application to the court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the court to extend time is contained in s 477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s 477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s 477(2)(a) of the Act.
[30] The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent. … [SZRBN at [28]-[30] per Nicholls FM] ”
12 In the absence of an application meeting the requirements of s 477(2) of the Migration Act 1958 an application for an extension of time under s 477(1) of the Migration Act 1958 is incompetent.
WZASQ at [10]-[12] per Judge Lucev. (An application for leave to appeal against SZRBN was dismissed by the Federal Court: SZRBN v Minister for Immigration & Citizenship [2012] FCA 984.)
It has long been recognised that the use of the word “must” in migration legislation, such as s.477(1) of the Migration Act, limiting time for the filing of applications imposes a mandatory obligation to comply with the time limit. In Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 (“Wang”) the Federal Court said:
In my view the use of the word “must” in s 478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but “is a word of absolute obligation”: see Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J and Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), p 278 and Public Prosecutor v Oie Hee Koi [1968] AC 829 at 852.
Wang, FCR at 391 per Merkel J.
Section 477(2) of the Migration Act is a provision under which the Court is given the discretion to make an order extending the otherwise mandatory time limitation in s.477(1) of the Migration Act if, and only if, the conditions in s.477(2) are met. In s.477(2) of the Migration Act the word “and” is used between paragraphs (a) and (b). Although not an invariable rule, where “and” appears joining two or more requirements in a statute it will usually indicate that those requirements are cumulative, unless the particular context requires otherwise: Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254 at [23] per Hill J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 285 FLR 416; (2014) 241 IR 472 at [13] per Judge Lucev. The use of the conjunctive “and” in s.477(2) of the Migration Act therefore means that the obligations imposed by paragraphs (a) and (b) of s.477(2) of the Migration Act are not severable: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [45] per Foster J (“SZRIQ”), the context not requiring otherwise. Thus, the requirements in paragraphs (a) and (b) of s.447(2) of the Migration Act must all be met before time can be extended. As indicated in WZASQ this requires:
a)an application for an order to extend time made in writing specifying why the applicant considers it necessary in the interests of the administration of justice to make an order extending time; and
b)satisfaction on the part of the Court that it is necessary in the interests of the administration of justice to make an order extending time.
The Court cannot simply jump to the second step, and satisfy itself that it is necessary in the interests of the administration of justice to make an order extending time, without an application being made which complies with the terms of s.477(2)(a) of the Migration Act.
The Judicial Review Application did not seek an extension of time and an extension of time cannot therefore be granted as the applicant has not sought one in writing under s.477(2)(a) of the Migration Act. It follows that the application is therefore incompetent by reason of s.477(1) of the Migration Act, and must be dismissed.
Extension of time – whether affidavit complying with r.44.05(2)(c) of the FCC Rules is a mandatory requirement
Rule 44.05 of the FCC Rules provides as follows:
(1) An application for a remedy to be granted in exercise of the Court's jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought--the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Rule 44.05 of the FCC Rules was inserted into the then Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) by the Federal Magistrates Court Amendment Rules 2005 (No.1) (Cth) in the following terms:
44.05 Application for order to show cause
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought — the reasons for any delay and the reasons why an extension should be granted.
This was part of a suite of amendments brought in by the Migration Litigation Reform Act 2005 (Cth).
Rule 44.05 of the then Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”) was first amended by the Federal Magistrates Court Amendment Rules 2007 (No.1) (Cth) by replacing the words “form of application under the Migration Act set out in Part 1 of Schedule 2” with the words “approved form”.
Rule 44.05 of the then FMC Rules was amended again by the Federal Magistrates Court Amendment Rules 2009 (No.1) (Cth) (“the 2009 Amendment”) by substituting for the then para.(c) of r.44.05(2) of the FMC Rules the following:
(c) if an extension of time is sought — the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
The Explanatory Statement accompanying the 2009 Amendment stated that the 2009 Amendment reflected amendments under the Migration Legislation Amendment Act 2009 (No. 1) (Cth) (“Migration Amendment Act 2009 (No. 1)”) to s.477 of the Migration Act (“2009 s.477 Amendment”).
The 2009 s.477 Amendment was a significant change to the process by which extensions of time might be granted to applicants. Section s.477(2)(a) was inserted into the Migration Act requiring applicants to state the reasons in their applications why it is in the interests of the administration of justice to grant an extension of time. The time for application was extended from 28 to 35 days, and the limitation of a maximum allowable extension (at that time being 56 days) was removed. This gave the Court wide discretion if it is in the interests of the administration of justice to grant an extension. The Second Reading Speeches and Explanatory Statement to the Migration Amendment Act 2009 (No. 1) stated that requiring applicants to give reasons for an extension of time in their applications was intended to assist the Court by drawing attention to cases where there were compelling reasons to extend time, so as to enable quicker and more efficient disposal of any applications to extend time.
The critical change to r.44.05(2)(c) of the then FMC Rules is that the word “reasons”, a synonym of explanation, was omitted, and the word “evidence” substituted. The distinction between the words is glaring. The use of the word “evidence” expressly requires that more than mere explanation be provided in support of any application for an extension of time. The intended purpose of the 2009 s.477 Amendment to promote efficiency in dealing with extension of time applications was supported by the requirement arising from the 2009 Amendment to provide evidence on affidavit, thereby facilitating proof of the reasons asserted in the extension of time application. That proof can be seen to be necessary, for without it, it would be very difficult for the Court to find facts necessary to satisfy it as to what is, or is not, in the interests of the administration of justice for the purposes of s.477(2)(b) of the Migration Act.
In Comcare v A’Hearn (1993) 45 FCR 441 (“A’Hearn”) the Full Court of the Federal Court stated that although it was to be expected an explanation for the delay would normally be given, “there was no rule that such an explanation is an essential pre-condition”: A’Hearn at 444 per Black CJ, Gray and Burchett JJ, but, as the Federal Court has otherwise observed, the failure to provide any adequate explanation for the delay may, of itself, provide sufficient reason to refuse the extension of time sought: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J (“SZMWH”).
In this case there is, however, a statutory rule, and unless compliance with that rule is dispensed with in the interests of justice under r.1.06(1) of the FCC Rules – which provides that: “The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules, at any time” – the requirements of r.44.05(2) of the FCC Rules are mandatory because of the use of the word “must”: Wang, FCR at 391 per Merkel J; Broad Spectrum Training Pty Ltd & Ors v Bidding Buzz Ltd & Ors [2010] FMCA 932; (2010) 244 FLR 335 at [35]-[40] per Lucev FM, and cases there cited, applied in WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [9] per Judge Lucev (“WZASC”). Therefore, absent dispensation under r.1.06(1) of the FCC Rules, the FCC Rules prescribe that there must be an explanation provided on affidavit as to, firstly, the delay and, secondly, why it is necessary in the interests of the administration of justice for the Court to grant an extension of time.
The history of r.44.05(2)(c) of the FCC Rules, and its enactment and amendment at the same time as related amendments to the Migration Act, demonstrate that its purpose is to provide the factual foundation upon which the Court can judicially determine whether or not to make an order extending time for an applicant to make an application under s.476 of the Migration Act.
The interaction between s.477(2) of the Migration Act and r.44.05(2)(c) of the FCC Rules appears to work in the following manner:
a)if an application for an order to extend time has been made in writing and specifies why the applicant considers that it is necessary in the interests of justice to make that order, and the Court is so satisfied, compliance with the requirement to file an affidavit under r.44.05(2)(c) of the FCC Rules may be dispensed with;
b)any waiver under r.1.06(1) of the FCC Rules of compliance with r.44.05(2)(c) of the FCC Rules requires the Court to do what justice appears to require: Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J; provided that there is rational basis upon which the discretion may properly be exercised: SZNPI v Minister for Immigration & Citizenship [2010] FCA 106 at [12] per Flick J, and bearing in mind that caution may be required before too readily departing from the requirements imposed by the FCC Rules: Arifin v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCAFC 61 at [30] per North, Flick and Jago JJ and SZTKB v Minister for Immigration & Border Protection [2014] FCA 653 at [14] per Flick J; and
c)the basis for dispensing with compliance in the absence of an affidavit might be established in circumstances where, for example:
i)the relevant facts concerning the extension of time application are the subject of a statement of agreed facts; or
ii)the relevant facts concerning the extension of time application are the subject of other agreements or concessions made at hearing; or
iii)an applicant is given leave to adduce oral evidence in relation to factual material relevant to an extension of time; or
iv)the alleged jurisdictional error is either established (as in SZTDM (No.2)) or so likely to be successful as to negate the necessity for the Court to deal with factual issues ordinarily required to be determined on an application for an extension of time (for example, issues such as the explanation for the delay and prejudice to the respondent: see the authorities cited at [32] below).
The above examples might be expanded upon, but absent something of their ilk, there could not otherwise be a judicially justifiable reasonable basis for dispensing with compliance with the requirement imposed upon an applicant by r.44.05(2)(c) of the FCC Rules to file an affidavit setting out the factual material relied upon by the applicant seeking to justify an order for an extension of time.
In SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 (“SZTDM (No.2)”) this Court observed as follows:
Under r.1.06(1) of the Federal Circuit Court Rules the Court may dispense with compliance with the requirements of the Rules. Insofar as it is necessary to do so, in the particular circumstances of this case where a jurisdictional error on the part of the Tribunal has been established, I would dispense with compliance with the requirements of r.44.05(2)(c) of the Rules. There is no requirement for an affidavit containing an explanation for delay in the Migration Act. I am of the view that it is open to the Court to grant an extension of time under s.477(2) of the Act notwithstanding non-compliance with r.44.05(2)(c) of the Federal Circuit Court Rules if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
SZTDM (No. 2) at [10] per Judge Barnes.
SZTDM (No.2) was a case dealing with its particular circumstances, but clearly falls within the category referred to at [26(iv)] above in which it is unnecessary for an affidavit under r.44.05(2)(c) of the FCC Rules to be filed because jurisdictional error on the part of the administrative decision-maker, in that case the Refugee Review Tribunal, had been clearly established, and obviously sufficiently so to warrant waiving compliance with r.1.06(1) of the FCC Rules.
In this case there is no explanation for the delay or why the interests of the administration of justice make it necessary for the Court to grant an extension of time, because there is no affidavit setting out the necessary evidence. Nor is there any obvious jurisdictional error in the Tribunal Decision. The applicant has therefore failed to satisfy the prescribed criteria in r.44.05(2)(c) of the FCC Rules for the Court to grant an extension of time and the Court has not dispensed with compliance with r.44.05(2)(c) of the FCC Rules, and there is no basis for doing so. In the circumstances, the extension of time application must fail: WZASC at [9] per Judge Lucev and Islam v Minister for Immigration & Anor [2013] FCCA 1687 at [16] per Judge Lucev.
Otherwise – factors for consideration in extending time
Lest there be error in the Court’s view that the Judicial Review Application is incompetent, or alternatively that it ought to be dismissed for non-compliance with r.44.05(2)(c) of the FCC Rules, the Court will address the factors usually considered in an extension of time application.
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established but not exhausted in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
WZASC at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones; SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
In this case the delay is minimal, the application being two days out of time. There is, however, no explanation whatsoever for the delay, adequate or otherwise, and as was observed in SZMWH the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J.
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. Further, in the circumstances of this case, where, for reasons set out below, no jurisdictional error is established, that prejudice is compounded.
The impact on the applicant of a failure to extend time for making the Judicial Review Application will be negligible, as, for reasons set out below, the proposed Judicial Review Application has no reasonable prospect of success because no jurisdictional error is established. Further, the failure of the applicant to provide evidence to the Tribunal makes it difficult to assess any impact on him, likewise his failure to provide any affidavit evidence to this Court in support of the Judicial Review Application.
As to the interests of the public at large this matter is determinable on existing well understood and explained provisions in the Migration Act and Migration Regulations and applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interests of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Turning to the merits of the proposed Judicial Review Application the background is as follows:
a)the applicant is a citizen of India who applied for the Student Visa on 14 November 2013: CB 1;
b)on 4 February 2014 the Delegate refused to grant the applicant the Student Visa on the basis that the applicant did not satisfy cl.572.223 of Schedule 2 to the Migration Regulations 1994 (“Migration Regulations”). The Delegate was not satisfied, as required by cl.572.223(2)(c) of Schedule 2 to the Migration Regulations, that the applicant would have access to funds demonstrated or declared in accordance with the requirements in Schedule 5A to the Migration Regulations relating to financial capacity: CB 62;
c)on 6 February 2014 the applicant applied to the Tribunal for review of the Delegate’s Decision. In his application form the applicant listed his postal address for correspondence as 17 Myrna Way, Parkwood, Australia, WA 6147 (“Parkwood address”) and his email address as [email protected]: CB 91;
d)by letter dated 9 September 2014 addressed to the applicant at the Parkwood address the applicant was invited to appear before the Tribunal to give evidence and present arguments on 16 October 2014. The letter also requested that the applicant provide the Tribunal, by at least 7 days before the hearing date, all documents the applicant intended to rely on to establish that he met the criteria for grant of the Student Visa, including documents demonstrating that he had sufficient funds, or access to funds, to pay relevant costs: CB 107;
e)the Tribunal did not receive any response to the letter to the applicant dated 9 September 2014;
f)there was no appearance by the applicant on 16 October 2014 at the Tribunal hearing: CB 11;
g)on 20 October 2014 the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Student Visa: CB 120; and
h)by letter dated 21 October 2014 addressed to the applicant at the Parkwood address, the Tribunal advised the applicant of the Tribunal Decision: CB 125.
In the Tribunal Decision the Tribunal:
a)identified that the key issue was whether the applicant satisfied the requirements of cl.572.223 of Schedule 2 to the Migration Regulations: CB 121 at [8];
b)found the applicant was required to satisfy cl.572.223(2) of Schedule 2 to the Migration Regulations by giving evidence of meeting the requirements mentioned in Schedule 5A to the Migration Regulations for the highest assessment level applicable to the applicant. The matters covered by the requirements included the applicant’s financial capacity to meet certain expenses as set out in cl.5A408 of Schedule 5A to the Migration Regulations: CB 121-122 at [9] and CB 123;
c)having regard to the assessment levels specified by the Minister pursuant to reg.1.41(1) of the Migration Regulations, and the definition of ‘assessment level’ and ‘highest assessment level’ in reg.1.03 of the Migration Regulations, found that the assessment level for the applicant, as the holder of an Indian passport, was assessment level 3, and noted that the evidentiary requirements in respect of financial capacity for this assessment level were set out at cl.5A408 in Schedule 5A to the Migration Regulations: CB 122 at [10]-[12] at CB 123; and
d)after recording that the applicant had been invited to provide evidence to satisfy the requirements of Schedule 5A to the Migration Regulations relating to his financial capacity by both the Delegate and the Tribunal, noted that it had no evidence that the required documentation had been provided. On this basis the Tribunal found that the applicant did not satisfy cl.572.223(2)(a) of the Migration Regulations. As the applicant did not meet the requirements of cl.572.223 and as no evidence had been provided on which the Tribunal could be satisfied that the applicant met the criteria for any of the other relevant visa subclasses, the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Student Visa: CB 122 at [14]-[19].
On 26 November 2014 the applicant lodged an application with this Court seeking review of the Tribunal Decision and the Delegate’s Decision.
The only order sought by the applicant is an order that the Tribunal Decision or Delegate’s Decision be quashed. The grounds of the Judicial Review Application allege that the Tribunal made an error on the following basis:
1. There was an error in processing the decision on the part of the Migration Review Tribunal:
a) Failed to establish contact with the applicant.
The Migration Review Tribunal failed to establish contact with me. I never received a notification for the invitation to the Migration Review Tribunal hearing. The email sent from Migration Review Tribunal was never received. Consequently, no evidence pertaining to the case was sent nor presented for the hearing. Furthermore, the Migration Review Tribunal did not attempt to verify the contact information I have provided.
b) There was a denial of procedural fairness.
The Migration Review Tribunal was not fair and reasonable in reaching a decision due to non-consideration of the possible ineffective communication. Instead, the Migration Review Tribunal rushed into a verdict devoid of any response from me. As I was completely unaware regarding the scheduled hearing, I was unable to attend since I was not available near my mobile device.
The essential issue raised by the grounds of review is whether the Tribunal erred by proceeding under s.362B of the Migration Act to make the Tribunal Decision without taking any action further to that which it took to enable the applicant to appear before it.
The applicant was invited under s.360 of the Migration Act to appear at a hearing of his application before the Tribunal. The Tribunal’s hearing invitation (CB 107) complied with the requirements of s.360A of the Migration Act in that:
a)the notice gave the day, time and place at which the applicant was to appear (either in person in Melbourne, or by telephone);
b)in compliance with s.379A(4) of the Migration Act the notice was sent to the applicant by post to the address he gave to the Tribunal for correspondence, namely, the Parkwood address;
c)under s.379C(4) of the Migration Act the applicant was taken to have received the notice on 18 September 2014, and was therefore given at least the prescribed period of notice of the Tribunal hearing under reg.4.21(4) of the Migration Regulations; and
d)the notice contained a statement of the effect of s.362B of the Migration Act.
Section 362B of the Migration Act provides as follows:
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.
The applicant failed to appear at the scheduled hearing before the Tribunal. The Tribunal’s discretion under s.362B of the Migration Act was therefore enlivened.
The Tribunal was required to exercise the discretionary power under s.362B of the Migration Act reasonably: Kaur v Minister for Immigration & Border Protection [2014] FCA 915; (2014) 141 ALD 619 at [82] per Mortimer J. The exercise of a statutory discretionary power will be unreasonable where the subsequent decision lacks an evident and intelligible justification: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332 (2013); 87 ALJR 618; (2013) 297 ALR 225 at [76] per Hayne, Kiefel and Bell JJ (“Li”). The Tribunal gave no reasons for its decision to proceed under s.362B of the Migration Act: see CB 121 at [7]. A court exercising powers of judicial review is therefore required to focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, the justification or intelligibility of the decision: Minister for Immigration & Border Protection v Singh [2014] FCAFC 1, (2014) 308 ALR 280, (2014) 139 ALD 50 at [45] per Allsop CJ, Robertson and Mortimer JJ. Significantly, the applicant had been aware from at least the time of the Delegate’s Decision that he was required to provide evidence of his financial capacity. Between the time that he applied to the Tribunal on 10 February 2014 and the Tribunal hearing on 20 October 2014, the applicant did not provide the Tribunal with any written arguments or material demonstrating that he met the relevant requirements. Furthermore, there was nothing before the Tribunal to indicate that the Tribunal’s hearing invitation to the applicant, sent to the Parkwood address nominated by the applicant as his address for the receipt of correspondence from the Tribunal, had been returned to the Tribunal as undelivered, or to otherwise alert the Tribunal to the possibility that the applicant had not received notification of the hearing.
Under s.357A of the Migration Act, Division 5 of Part 5 (which contains ss.360 and 362B) of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The Tribunal was therefore under no statutory obligation to attempt to verify the contact information provided by the applicant in his application for review, or to otherwise ‘establish contact’ with the applicant.
Having regard to:
a)the Tribunal’s compliance with the statutory obligations under s.360 of the Migration Act;
b)the applicant’s failure to appear at the scheduled Tribunal hearing; and
c)the absence of any material before the Tribunal suggesting that an adjournment was appropriate,
the Tribunal’s determination of the application without taking any further action to enable the applicant to appear before it cannot be characterised as an unreasonable exercise of a discretionary power in the Li sense. It does not matter for these purposes that the applicant was not aware of the notice, or claims to have not been so aware: SZIGQ& Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [5] per Downes J; MZZFI v Minister for Immigration & Border Protection [2013] FCA 1337 at [10] per Pagone J, from which an application for special leave was refused: MZZFI v Minister for Immigration & Border Protection & Anor [2014] HCASL 101.
The applicant’s allegation of a denial of procedural fairness by the Tribunal is without basis. The Tribunal complied with its obligations under Division 5 of Part 5 of the Migration Act, including its obligations under ss.360 and 362B of the Migration Act.
The Tribunal did not err in exercising its power under s.362B of the Migration Act. The applicant’s grounds of review are without merit, and the Tribunal Decision is free from jurisdictional error.
Conclusions and orders
The Court has concluded that:
a)there is no application for an extension of time in which to file the Judicial Review Application, and the Court therefore has no jurisdiction to entertain the application, and it must be dismissed;
b)even if there were a competent application for an extension of time, the Court would not grant an extension of time, both because of the applicant’s non-compliance with r.44.05(2)(c) of the FCC Rules and because an extension of time was not necessary in the interests of the administration of justice, and an order would be made dismissing the application for an extension of time, in which circumstance the Court is not required to make an order dismissing the Judicial Review Application: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J; Johnson v Minister for Immigration & Anor [2015] FCCA 610 at [43] per Judge Lucev; and
c)even if an extension of time were to be warranted, the Judicial Review Application is without merit, because the Tribunal Decision is free from jurisdictional error, and, in any event, the Court would therefore have ordered that the Judicial Review Application be dismissed.
The primary effect of the above conclusions is that there is no application for an extension of time, and the Court is, therefore, without jurisdiction to hear the Judicial Review Application. In those circumstances, the appropriate order is that the application be dismissed, and an order to that effect, together with other orders, was made on 29 April 2015.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 19 May 2015
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