SHARMA v Minister for Immigration
[2019] FCCA 181
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 181 |
| Catchwords: MIGRATION – Application for extension of time – application refused and dismissed – costs as agreed or assessed. |
| Legislation: Migration Act 1958 (Cth), ss.477, 477A Migration Regulations 1944, cl.820.211 |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | GAURAV SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1448 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed 11 May 2017 seeking an extension of time is dismissed.
The applicant is to pay the costs of the first respondent as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1448 of 2017
| GAURAV SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application seeking an extension of time for judicial review of a decision made by the Administrative Appeals Tribunal on 13 March 2017.
The applicant is a citizen of India and first arrived in Australia on 3 July 2009 on a Student Subclass 572 visa.
The applicant has resided in Australia since 3 July 2009 at times with a visa and at other times without a valid visa.
The applicant was arrested by police on 28 October 2015 for driving an unregistered vehicle. At this time, the applicant did not hold a valid visa. He was placed in detention.
The applicant was subsequently granted a Bridging Visa and released from detention. He made an application for a partner visa on 11 November 2015.
The application for a partner visa was based on the applicant’s marriage to Ramandeep Kaur, an Australian permanent resident. The applicant and Ms Kaur married on 22 April 2015.
The delegate refused the visa application on 1 June 2016 on the basis that the applicant did not satisfy criterion 3001 as the applicant had applied for the visa more than 28 days after the expiry of his last substantive visa on 11 December 2011. The delegate considered whether the applicant’s circumstances were sufficiently compelling to justify a waiver of the Schedule 3 criteria, but found that they were not.
On 20 June 2016 the applicant applied to the Administrative Appeals Tribunal for a merit review of the delegate’s decision.
The applicant and his sponsor attended a hearing before the Tribunal on 13 March 2017.
The Tribunal found that the applicant did not satisfy criterion 3001 as the visa application was not made within 28 days of the expiry of the applicant’s last substantive visa.
The Tribunal then considered whether there were grounds to waive the Schedule 3 criteria, but found that there was not.
The Administrative Appeals Tribunal noted the following in its reasons for decision:
a)The applicant would not suffer hardship if required to go offshore to lodge his partner visa application;
b)There would be no negative financial impact on the applicant’s sponsor if he were to leave Australia to lodge his application offshore as the applicant did not work;
c)There was no evidence that the applicant would not be supported by his family in India if required to travel overseas to lodge his application for a partner visa;
d)That the applicant and the sponsor may suffer some temporary emotional hardship if separated but that this would not be significant hardship;
e)It was not satisfied that the applicant and sponsor would suffer significant financial or emotional hardship if the applicant was required to travel offshore to lodge his visa application; and
f)That the documents provided by the applicant in his application went to the validity of his relationship and not to reasons why he should not lodge his application offshore.
As a consequence of the above the Administrative Appeals Tribunal affirmed the decision of the delegate after finding that the applicant did not meet clause 820.211(2)(d)(ii) of Schedule 2 of the Migration Regulations.
The applicant was notified of the decision of the Administrative Appeals Tribunal by email on 14 March 2017.
The application for judicial review was filed on 11 May 2017, being more than three weeks after the expiry of the 35 day time limit in s.477A(1) of the Act.
Pursuant to s.477(2) of the Act, the Court has the power to extend that 35 day period if the Court is satisfied that it is necessary in the interest of the administration of justice to make the order extending the time.[1]
[1] The other criterion for extension of time is that an application for that order has been made in writing, which certainly occurred in these proceedings.
In Hunter Valley Developments Pty Ltd v Cohen[2], Wilcox J indicated that five factors should be considered in determining whether relief ought to be given[3]:
a)Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored.
b)There must be some acceptable explanation for the delay.
c)Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension.
d)The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.
e)The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.
[2] [1984] FCA 176; (1984) 3 FCR 344 at 348 -349
[3] Referred to in SZMNO v Minister for Immigration and Citizenship[2009] FCA 797
The decision of Wilcox J has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time, although it was a proceeding which concerned the extension of time discretion in the AD(JR) Act. The list of factors has been endorsed repeatedly in the Federal Court as well as the Federal Circuit Court, as providing guidance on how the exercise of discretion might be approached.[4]
[4] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [41]
It will seldom be in the interest of the administration of justice to grant leave where an appeal has little or no prospects of success.[5] However, what is appropriate is for the Court to examine the grounds of appeal at what should be a “reasonably impressionistic level”[6] with the correct approach being expressed as to whether a ground of appeal is arguable or reasonably arguable. The approach to be taken under s.477(2) ought not be transferred into a full de facto hearing.[7]
[5] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [62]
[6] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [62]
[7] MZABP v Minister for Immigration [2015] FCA 1391, Mortimer J at [63]
The applicant must demonstrate that it is necessary in the interests of justice for time to be extended.[8]
[8] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Delay
During the hearing of the application for extension of time, the applicant told the Court that he was not aware of the time period in which an application needed to be lodged before the expiry of that time period. When he did learn of the limitation period, a few days after it expired, he then did not have sufficient money to pay the application fee.
The applicant tried to explain, although it still remains a little unclear as to what exactly happened, that he had tried lodging an application earlier but that it had been returned due to not having with it the requisite payment.
Ultimately, the applicant borrowed some money for the fee and lodged his application on 11 May 2017, more than three weeks after the expiry of the 35 day limitation period.
The delay in filing is not significant. The explanation for the delay, the Court finds, is acceptable.
Prejudice
The First Respondent does not assert any prejudice by reason of the delay however this does not of itself justify an extension being granted.[9]
[9] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at [349]
Merits
At the commencement of the hearing, and indeed throughout the hearing, the applicant made a number of applications for adjournment – on the basis that he wanted “one last chance” to submit “everything to prove the relationship is genuine and continuing.” Such applications are instructive of the applicant’s misunderstanding of the entire process and the Court’s jurisdiction with respect to not only the present application for an extension of time but also with respect to the substantive application. This Court is not permitted to carry out a merits review of the Tribunal’s decision.
In order to succeed in the substantive application (which is presently not before the Court), the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
The applicant’s grounds for judicial review are as follows:[10]
[10] Without alteration
a)Satisfying the CL820.211 of Migration Regulation 1994.
b)Satisfying the Past 820 of sets to Migration Rg 1994.
c)Compelling reasons exist’s meeting the Sech3 Criteria of Migration Act 1958.
d)Meeting the subsection 5?(3) of Act
There is no issue that the applicant did not lodge his visa application within the required 28 day period of the last day he held a substantive visa. This is because the date of the applicant’s marriage is not in issue and the date that the applicant last held a substantive visa before applying for a subclass 820 – partner visa is also not in issue.
The Court therefore understands the gravemente of the applicant’s substantive application to be a complaint about the delegate not being satisfied that there are compelling reasons not to apply the Schedule 3 criterion 3001.
It is apparent that the grounds claim broadly that the applicant met the statutory criteria. Except for matters going to the genuineness of the relationship, the applicant did not make any submissions (even though he was invited to do so) about how the asserted grounds amounted to jurisdictional error.
It is apparent that the applicant was before the Tribunal and remains before this Court, concerned about proving that the relationship between him and his spouse is a genuine spousal relationship. This was not however, a dispositive issue before the Tribunal. Having found that the applicant did not satisfy the requirements of criterion 3001, the Tribunal then considered whether discretion to waive compliance with schedule 3 criteria should be applied. The applicant does not, as far as the Court understands, take issue with the Tribunal’s approach in this regard.
The Tribunal explained to the applicant and his sponsor during the Tribunal hearing what compelling reasons and hardship might be and then asked each of the applicant and his sponsor what the hardship would be if the applicant was required to travel offshore to lodge his partner visa application. The applicant said that there is no hardship, but that he did not know he could lodge the application overseas. The sponsor said she could not live without the applicant and that she has struggled a lot for him.
The Tribunal considered the applicant’s circumstances and the material submitted to the Tribunal.[11] No error is demonstrated in this approach. Furthermore, the applicant himself told the Tribunal that there was no hardship caused by him being required to submit a visa application offshore and that the reason he had not done so was because he did not know that an offshore application was permitted.
[11] CB 211 at [21] to [27]
The applicant has not identified any matters which might go to jurisdictional error. In essence, the applicant is asking the Court to determine for itself whether the statutory criteria are satisfied. It is an invitation to the Court to engage in an impermissible merits review.
For reasons explained, the Court finds that the grounds of review are without merit in the sense that they are hopeless and bound to fail.[12]
[12] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [65]
Determination
The applicant has not satisfied the Court that it is necessary in the interests of the administration of justice to make an order extending the 35 day time limitation period.
Accordingly, the extension of time application is refused.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 5 February 2019
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