Syed v Minister for Immigration - [2011] FMCA 397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYED & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 397

MIGRATION – Application for extension of time to review decision of MRT – where no reasonably arguable case – where applicant applied for Ministerial intervention under s.351.

Migration Act 1958 (Cth), ss.116(3), 351, 476, 477
Migration Regulations 1994, r.2.43(2)(b)(i)

Daniel v Minister for Immigration [2004] FCA 21

First Applicant:

Second Applicant:

Third Applicant:

Fourth Applicant:

Fifth Applicant:

ZULFIQAR ALI SYED

BUSHRA ZAINAB SYED

SAIMABSAR ALI RIZUI SYED

EZRAM ABBAS ALI RIZUI SYED

ABIHA RUBAB SYED

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

MIGRATION REVIEW TRIBUNAL

File Number:

DNG 2 of 2011

Judgment of:

Raphael FM

Hearing date:

17 May 2011

Date of Last Submission:

17 May 2011

Delivered at:

Darwin

Delivered on:

17 May 2011

REPRESENTATION

For the Applicants:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Substantive application dismissed.
Applicant to pay the First Respondents costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNG 2 of 2011

ZULFIQAR ALI SYED

First Applicant

BUSHRA ZAINAB SYED

Second Applicant

SAIMABSAR ALI RIZUI SYED

Third Applicant

EZRAM ABBAS ALI RIZUI SYED

Fourth Applicant

ABIHA RUBAB SYED

Fifth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 5 January 2011 Mr Syed applied to this court to review a decision of the Migration Review Tribunal that had been handed down on 6 June 2010. Section 477 of the Migration Act 1958 (the “Act”) places time limits on applications to this court for a remedy to be granted in exercise of the court’s original jurisdiction under 476. The time limit is 35 days from the date of the Migration decision. The full wording of that section is:
“Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates 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 Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Magistrates 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 Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
"date of the migration decision" means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 --the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal--the date of the oral decision; or
(d) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”
In order for Mr Syed to have the court hear his application for review, he must satisfy me that it is in the interests of the administration of justice to extend his time. When he appeared before me today he told me that he had very recently sought the advice of an experienced and well regarded member of the Sydney legal profession, specialising in migration matters, and that this legal advisor had spoken to him at the telephone this morning and asked him to request an adjournment of this hearing from the court. So, prior to my giving consideration to the matters under s.477, I must consider the application for the adjournment which is opposed by Ms Hawkins appearing on behalf of the Minister.
The papers in the file reveal that the application to the court was made on 5 January 2011 and that Mr Syed appeared before Lucev FM on 1 February 2011 for a directions hearing. His Honour made orders allowing Mr Syed to file and serve any amended application by 4 April 2011 and requiring him to file and serve an outline of submission ten business days prior to the hearing. Order 4 of the orders made at the directions hearing set this case down for hearing today 17 May 2011, so that Mr Syed has had in excess of three and a half months to prepare. He told me that due to financial stress and other circumstances he had only just been able to seek the assistance of Mr Bitel. He had also had difficulty in finding an appropriate advisor. However, I note that before the Tribunal Mr Syed had the assistance of a Darwin based legal practitioner and that, after his retainer to that gentleman ceased, he received assistance and advice from a Darwin based barrister.
If I was to have been persuaded to grant the adjournment it would have been because I had received, at the very least, some indication that Mr Bitel was able to propound an argument of some merit in relation to the substantive case. This would have assisted me in granting leave under s.477 and therefore granting the adjournment that Mr Syed has requested. But nothing that Mr Syed has told me today persuades me that there is any substantive merit in the application itself. For that reason I am not prepared to grant the adjournment requested.
I come then to consider the application under s.477. It would appear that when Mr Syed received the decision of the Tribunal he was confused as to what to do next but was told that he was able to make an application to the Minister for reconsideration of his application and for the Minister to substitute a more favourable decision for that of the Tribunal.
Mr Syed did make that application under s.351 of the Act and was informed on 1 December 2010 that the Minister had decided that it would not be in the public interest to intervene. He then waited until 10 January to file the application. Before me today Mr Syed said that the reason for this further delay was that he took some time to find out what he could do. When he found out he was told that he had to prepare his case very thoroughly and so that took some further time. And when he eventually approached the court registry, it was shortly before Christmas, and he was told to come back after Christmas.
Whilst I am prepared to accept that persons in the position of Mr Syed do not find it easy to deal with applications made under the Act, which are notorious for their complexity, I am also sensible of the existence of s.477 and the clear requirement of the Act to ensure that applications in respect of decisions are made promptly. It is now well settled that the fact of an application under s.351 to the Minister is not of itself a ground for extending time under s.477; Daniel v Minister for Immigration [2004] FCA 21 per Goldberg J at [14] and [15]. His Honour noted that the existence of an application to the Minister could be construed as an acceptance by the applicant of the Tribunal’s decision. I would not be prepared to go that far in this case but feel bound by his Honour’s views to disregard the existence of the s.351 application as a ground for the extension of time.
Notwithstanding the views expressed above, I would be sympathetic to an application if I could be persuaded that there were serious questions to be tried in respect of the decision under review. This court has had some 10 years of experience in considering decisions of the Refugee and Migration Review Tribunals and it is still the case that some decisions can be read (without an eye attuned to the perception of error) which clearly indicate the possibility of jurisdictional error. I have read this decision several times and it is not one of those.
Put shortly, Mr Syed was granted a visa that contained the standard condition 8105 restricting his hours of work to 20 hours per week during the period in which his course was in session. That was advised to Mr Syed. His course commenced on 1 July 2007 and continued for a period of two years, the semesters being from 1 July to 30 December and from 1 January to 30 June in each year. During each year the student was entitled to 20 days vacation leave. It is not disputed that during this 20 days vacation leave a student with a temporary visa, such as Mr Syed had, would be entitled to work more than 20 hours per week but the Tribunal found for the balance of that period he was restricted to those 20 hours.
During the course of the Tribunal proceedings there was considerable debate as to what periods of leave Mr Syed had received but, in the Tribunal’s decision, it gave Mr Syed credit for all leave that the Tribunal found the university had approved and only considered the breach of condition 8105 in respect of periods during which there had been no clear approval by the university.
These periods were the weeks commencing 2 December 2007, the week commencing 23 December 2007, the week commencing 30 December 2007 and the week commencing 6 January 2008. Mr Syed had argued that the university was not in session during that time and, therefore, he was entitled to work unrestrictedly but the Tribunal found that his terms of enrolment provided for the semester dates that I have already extracted and that the coursework semester periods did not apply to him. He was limited to unrestricted working only during the four weeks of leave that he was granted by the university. The Tribunal, having come to the conclusion based upon evidence from the university records that was open for it accept, was obliged, by the provisions of s.116(3) of the Act and Regulation 2.43(2)(b)(i) of the Migration Regulations 1994 (the “Regulations”), to cancel the visa if it found that condition 8105 was not complied with. That is what it did.
Mr Syed did not indicate any grounds upon which he identified jurisdictional error in his application. He annexed to that document a copy of the submission made by his counsel to the Tribunal. It is very difficult for a letter, which is provided to a Tribunal before it makes a decision, to identify jurisdictional error in the decision itself and, in this case, I can not say that such an error exists. The letter, which is found at [CB 218 - 220], sets out the history of Mr Syed applications for leave. There most certainly was some confusion in relation to the forms because the procedures laid down by Charles Darwin University were not entirely clear as to whether such applications were to be dealt with by the Research Office or the International Support Officer but those matters were placed before the Tribunal and it came to a conclusion about them.
One of Mr Syed’s most strident arguments before me was that he had applied for leave of absence. The documentation certainly indicates that such an application was completed although it does not indicate that such an application was ever approved. However, as the Tribunal pointed out to Mr Syed, a leave of absence is a different animal to recreational leave and that the conditions upon his visa would not allow him to apply for leave of absence, to take time off from his course, so that he could work full time.
Thus, even if such leave had been granted (which the Tribunal found it had not), I have serious concerns as to whether it could be considered a period during which Mr Syed was entitled to work the hours that he in fact did work in late December 2007 and early January 2008.
For these reasons I am unable to conclude that there would be a serious matter to be tried such that I could overlook the very considerable delay that occurred between July 2009 and January 2011 when the application was eventually lodged. I do not believe that it is in the interest of justice that an extension of time should be granted under s.477 and I refuse that application.
It follows that the substantive application must be dismissed and the applicant is to pay the first respondents costs which I assess in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 27 May 2011