SHRESTHA v Minister for Immigration

[2017] FCCA 3322

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3322

Catchwords:
MIGRATION – Application for an extension of time within which to make a competent application to the Court – the Minister intended to concede that there was jurisdictional error in the relevant Tribunal decision – the Minister could not contact the applicant – the applicant did not appear at the interlocutory hearing – orders made in the applicant’s absence – writs issued. 

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: NISCHAL SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1917 of 2015

Judgment of: Judge Nicholls

Hearing date: 30 November 2017

Date of Last Submission: 30 November 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

Solicitors for the Applicant: No appearance

Solicitors for the Respondents: Ms K Gawidziel of Australian Government Solicitor

ORDERS

1. Pursuant to Rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), the application to extend time made on 10 July 2015 pursuant to Section 477(2) of the Migration Act 1958 (Cth) should proceed to a hearing notwithstanding the applicant’s non-attendance.

2. The application to extend time made on 10 July 2015 pursuant to Section 477(2) of the Migration Act 1958 (Cth) is granted.

3. A writ in the nature of certiorari issue quashing the decision of the second respondent dated 3 June 2015, Tribunal file number 1502501, to affirm the decision of the delegate of the first respondent to cancel the applicant’s Subclass 573 Higher Education Sector visa.

4. A writ in the nature of mandamus issue directing the second respondent to determine according to law the applicant’s application for review of the decision of the delegate of first respondent dated 13 February 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1917 of 2015

NISCHAL SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made to this Court on 10 July 2015, seeking an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), within which to make a substantive application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 3 June 2015, which affirmed the decision of the Minister’s delegate to cancel the applicant’s subclass 573 higher education sector visa.

2. The application to extend time was prepared by a firm of solicitors on behalf of the applicant who have since withdrawn their representation.  Nonetheless, the solicitors provided the applicant’s explanation for the application to extend time, in that “[t]he applicant was experiencing financial hardship due to the [e]arthquake in Nepal and could not get financial support in time.” 

3. As stated above, the decision of the Tribunal was made on 3 June 2015. On the basis of s.477(1) of the Act, any substantive application to the Court for review of that decision made pursuant to s.476 of the Act, must be made within 35 days of that date. The application to the Court was made on 10 July 2015, which is in the order of two days late. Therefore, the application is not competent.

4. Section 477(2) of the Act provides that the Court may, if it is satisfied that it is in the interests of the administration of justice, extend time if an applicant makes an application in writing. In the current case, the applicant has made such an application in writing, so it is appropriate to consider whether it is in the interests of justice to extend time.

5. The list of relevant elements is non-exhaustive.  In the circumstances presented, the length of the delay, any explanation for the delay, whether there is any prejudice to the Minister, and the merits of the proposed substantive application would be the factors that, in my view, need to be considered.  As to the explanation for the delay, I have already referred to the ground of the application to extend time (see above at [2]). 

6. However, there is no evidence before the Court to support that explanation.  The delay is a very small delay of two days.  Nonetheless, there is no explanation in evidence before the Court, even though the applicant was represented by solicitors for some considerable time. Further, the claim that the applicant was experiencing “financial hardship” remains unexplained.  The Minister has not asserted any prejudice in this matter if time were to be extended. 

7. What the Minister has submitted today, consistent with his position as a model litigant, is that the Tribunal decision is affected by jurisdictional error. The Minister explains as follows in a written statement handed up in Court:

   “The first respondent concedes that the decision of the Tribunal is affected by jurisdictional error because the Tribunal failed to consider the evidence before it, namely evidence submitted by the applicant regarding his enrolment in courses at the Holmes Institute.  The Tribunal failed to consider the evidence before it by making a finding that ‘the applicant has not provided evidence to satisfy the Tribunal that the offer and the CoE for the Bachelor of Accounting were issued before he ceased to be enrolled in the original higher education course’: [10] of the Tribunal decision.”

8. I agree with the Minister’s statement.  I should also note that there is at least, in my view, an arguable case that arises from ground 3 of the proposed substantive application in relation to the assertion that the Tribunal fell into jurisdictional error in relation to the “construction of Condition 8516”, with reference to [11] - [12] of the Tribunal’s decision record (at CB 64). 

9. It is not necessary to further explore that matter, which would have been the subject of argument had the Minister chosen to contest the application before the Court. I am satisfied there is at least an arguable case in that regard, but primarily, the Minister’s concession establishes that there is at least an arguable case for the purposes of s.477(2) of the Act. I therefore find that it is in the interests of the administration of justice to extend time.

10. I also am satisfied that the relief that the applicant seeks by way of his now substantive application before the Court should be granted. I agree with the Minister that the Tribunal’s decision is affected by jurisdictional error, as the Minister has explained. There is no other reason not to grant the relief. 

11. I will make the appropriate orders.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  15 January 2018