Sun v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 122
•16 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sun v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 122
File number(s): LNG 34 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 16 February 2024 Catchwords: MIGRATION – application for an extension of time – student visa – decision of Administrative Appeals Tribunal – inadequate explanation for delay – delay not significant – no prejudice to the first respondent – no reasonably arguable grounds of jurisdictional error – extension of time refused Legislation: Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Regulations 1994 (Cth)
Ministerial Direction Number 69
Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 7 February 2024 Place: Hobart For the Applicants: The First Applicant in person Solicitor for the First Respondent: Mr Slevison, Australian Government Solicitor ORDERS
LNG 34 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JUANJUAN SUN
First Applicant
PENGWEI LI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for an extension of time filed 22 June 2022 to apply for judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
3.The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $4,189.38.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI:
By application filed on 22 June 2022, the first applicant has sought judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made orally on 28 April 2022. The second applicant is the first applicant's spouse and relies on her grounds of review. The Tribunal affirmed the decision of the first respondent's delegate to refuse the grant of a Student (Temporary) (Class TU) (Subclass 500) visa (“the student visa”).
By her application filed on 22 June 2022, the first applicant sought to invoke the Court's jurisdiction to review the decision of the Tribunal pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”). However, the application was filed outside the 35 day time limit prescribed by s 477(1) of the Act. In particular, the application was filed 21 days out of time.
To proceed with judicial review, the applicant must persuade the Court that an extension of time pursuant to s 477(2) of the Act should be granted.
HEARING BEFORE THE COURT
The proceedings were first listed before the Court for hearing on 4 December 2023. The applicant was sent a notice of this hearing date on 11 September 2023. Due to administrative reasons, the hearing on 4 December 2023 was vacated in November 2023 and re-listed to occur on 7 February 2024.
On 7 February 2024, the first applicant appeared at the hearing, self-represented and assisted by a Mandarin interpreter. The first respondent was legally represented.
After the Court briefly explained the process for the hearing, there appeared to be confusion as to whether the applicant was ready to proceed and make submissions in relation to the extension of time application. It became apparent that the applicant was seeking an adjournment, but no indication was given about the length of the adjournment sought. Nonetheless, the Court entertained the adjournment application and heard submissions from both parties.
The adjournment was refused and brief oral reasons for declining to adjourn were given. These included that the Court was not satisfied that:
·The Applicant would engage a lawyer to appear on the next hearing date;
·Any indication was given about the length of adjournment needed; and
·Childcare responsibilities had reasonably prevented the first applicant from obtaining legal advice and preparing for the hearing, given she had known of the hearing date since November 2023.
EXTENSION OF TIME ISSUE
The first applicant was asked by the Court if she would prefer the hear the first respondent's submissions regarding the application for extension of time and then reply, or if she wished to make her submissions first. The applicant expressed a preference to hear the submissions of the first respondent and then respond.
The Court Book was received in evidence and marked as Exhibit R1. An affidavit of service of Adam Slevison, the lawyer for the first respondent, filed 17 November 2022 was also read into evidence and marked as Exhibit R2. This affidavit attached the written reasons of the Tribunal’s decision in these proceedings as that decision had been delivered orally in the first instance.
The first respondent’s lawyer made submissions orally in accordance with the written submissions filed 20 November 2023. These were translated by the interpreter assisting the first applicant. It is unnecessary to repeat the first respondent's submissions in full, rather they can be summarised as follows:
(1)The first applicant’s explanation for lodging the application for review outside the prescribed 35 days was unsatisfactory and there was no evidence before the Court that she had in fact attempted to file it within time or, if she had, that it had been rejected.[1]
(2)The application for an extension of time should not be granted because, although it is conceded that there is limited prejudice arising from a delay of 35 days, the first applicant has failed to provide a reasonable and adequate explanation for the delay in filing her review application and further, the grounds of review have no prospect of success.
[1] As merely asserted on p 3 of the application for review filed 22 June 2022, included in the Court Book filed 3 October 2022 at p 4.
In her oral submissions the first applicant stated that she disagreed that she was not a genuine temporary entrant. She said her attendance sheet relating to study showed she was a dedicated student but that language barriers with English had created difficulties, meaning that she had not been able to complete her courses.
The first applicant also rejected what she said were false claims by the Department that she was not a genuine temporary entrant and stated that she felt “wronged”.
Regarding the first respondent’s submission that the Tribunal had found that the first applicant’s ties with family and friends in China were not sufficient to operate as an incentive to return, the first applicant argued against this and stated that her ties were strong, that she communicated daily with them and that she had no intention to stay in Australia.
The first applicant also stated that she would accept the outcome of the hearing and respected Australian law. She emphasised that her purpose in seeking the student visa was to enable her to complete her accounting degree and have a decent qualification before returning to China.
The first applicant did not address in any way the first respondent’s submissions about the absence of a reasonable explanation for the delay in filing the application for review. For example, she did not provide any evidence of a failed attempt to file the application at a date prior to 22 June 2022. This was despite having heard submissions from the first respondent that the delay had not been satisfactorily explained.
After hearing the first applicant’s submissions, because they appeared to simply take issue with the findings of the Tribunal below, thereby inviting the Court to engage in impermissible merit review, I sought to elicit a better understanding of why the applicant contended that the findings by the Tribunal were not reasonably open or were illogical.
I directed the first applicant to the Tribunal’s written reasons, noting findings about the criteria in cl 500.212 of the Migration Regulations 1994 (Cth) and the factors in Ministerial Direction No 69, which were assessed against her. That is, that she had enrolled in a Diploma of Hospitality Management to increase her chances of obtaining the student visa when she really intended to study accounting.[2] Further, that the first applicant had maintained connections with her family and friends in China without being there and this did not serve as an incentive to return.[3] Thirdly, in respect of ground one of her application – that the Tribunal had failed to comply with the Act and denied the applicant fairness – she was invited to comment on my preliminary observation that the Tribunal reasons showed it had applied the correct regulations and Ministerial Direction applicable to student visas.
[2] Exhibit R2 Annexure AJS-1, Tribunal written reasons dated 1 November 2022 at [16].
[3] Exhibit R2 Annexure AJS-1, Tribunal’s written reasons dated 1 November 2022 at [19].
The first applicant agreed with my preliminary observations and did not state anything of substance in response to the other matters I had raised. No further reasons were given about why she asserted she had been denied fairness.
EVALUATION AND DETERMINATION.
As explained and emphasised to the first applicant at the hearing, the Court's powers of review pursuant to s 476 of the Act do not extend to determining afresh whether she satisfies the criteria for the student visa.
Instead, I have reviewed the decision and written reasons of the Tribunal, considered the limited submissions made by the first applicant and the focused and relevant submissions made by the first respondent, with a view to identifying potential and arguable jurisdictional error. [4] It is in this context that the application for an extension of time is to be considered.
[4] Error in the nature discussed in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
By virtue of s 477(2) of the Act, the Court should only extend the limitation period referred to in s 477(1) if it is necessary in the interests of the administration of justice.
There are no express statutory criteria in the Act to inform whether it is in in the interests of the administration of justice to extend time under s 477(2). However, many authorities have established that generally three non-exhaustive factors may be considered,[5] being:
·Whether there has been a reasonable and adequate explanation for the delay;
·Whether there is any prejudice to the respondent; and
·Whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.
[5]See, eg, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; and Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67 at [15]-[17].
Other than the contention that she attempted to file an application within time, there is no explanation for the delay in filing until 22 June 2022. Critically, no evidence of the attempted earlier filing has been provided and the first applicant did not respond to the submissions at the hearing made by the first respondent about this.
In the circumstances described at [15] and [23] of these reasons, I am not persuaded that a reasonable or adequate explanation had been given for filing outside the statutory time limits.
Despite there being no reasonable or adequate explanation for the delay, this absence is not fatal to the application seeking an extension of time because the first respondent concedes there is little prejudice arising from the delay. However, I have concluded that the extension of time should not be granted because I consider there is no prospect of the substantive application for review succeeding for the following reasons.
The substantive application for review relies on only two grounds. Ground one merely asserts that the Tribunal failed to comply with the Act but, as conceded by the first applicant during the hearing, the Tribunal did in fact address the relevant statutory criteria to be satisfied for the grant of a temporary student visa.
To the extent that ground one might be interpreted as an allegation that the Tribunal did not afford procedural fairness, it is baseless because the first applicant attended a hearing and was assisted by a Mandarin interpreter.[6] She made oral submissions and had provided a response to the s 359 request for information.[7] I infer that in ground one, the first applicant may have intended to rely on her perceived denial of fairness because the Tribunal did not favourably make findings about the evidence she relied upon.
[6] Court Book filed 3 October 2022, p 105.
[7] Court Book filed 3 October 2022, pp 76-94.
If the first applicant intended to make the inferred contention referred to above at [27], that claim is baseless for two reasons. First, it invites the Court to make more favourable findings about the considerations discussed by the Tribunal at [16]-[24]. This is impermissible and does not constitute jurisdictional error.[8] Secondly, the findings the Tribunal made were objectively and reasonably open on the evidence the Tribunal identified in its written reasons. They have not been demonstrated to be illogical either.
[8] See, eg, MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].
Ground two of the substantive application does not identify jurisdictional error at all. It states: “[m]inister for immigration, citizenship, migrant services and multicultural affairs committed jurisdictional error of law in that it failed to comply with the migration act 1958.”
As the ground refers to the first respondent, it can only be interpreted to refer to the decision of the delegate of the first respondent.[9] As this is a primary decision it is not amenable to judicial review.[10] If, in the alternative, the ground were taken to refer to the Tribunal then it has no prospect of success because it fails to particularise how or in what manner there was a failure to comply with any relevant part of the Act.[11]
[9] Court Book filed 3 October 2022, p 58.
[10] Subsections 476(2)(a) and 476(4) of the Act.
[11] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21]
CONCLUSION
Weighing the considerations relevant to whether it is necessary in the interests of justice to extend time, as discussed in the above reasons, the extension of time sought is refused. It follows that there will be Orders dismissing the interlocutory application to extend time.
During the hearing, the First Respondent submitted that if the application was dismissed, it sought an order for costs in the sum of $4,189.38, being the fixed sum in the scale for a matter concluded at interlocutory hearing.[12]
[12] Per Item 2, Division 1, Part 2 of Schedule 2 of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The applicant was invited to make submissions about costs, but said she had none.
As the application is to be dismissed, I consider that a costs order against the applicant is just in all the circumstances and the sum claimed is reasonable and consistent with the scale and complexity of the matter.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 16 February 2024
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