SZVEB v Minister for Immigration
[2018] FCCA 1629
•26 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVEB v MINISTER FOR IMMIGRATION | [2018] FCCA 1629 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of a delegate of the Minister for Immigration finding that the applicant’s application for a Bridging visa E (Class WE) was not a valid application – applicant needed an extension of time of 462 days – however he marked the ‘no’ box on the form of application indicating he was not applying for an extension of time but inconsistently provided factual grounds for the making of an extension order – application form constituted an “instrument” – principles of construction of an instrument where there is an inconsistency between different parts – proper construction of the form of application required the applicant’s negative answer to be disregarded – applicant found to have applied for an extension of time in writing under s.477(2) of the Migration Act 1958 (Cth) – no reasonable explanation for delay and no substantive ground for a finding of jurisdictional error asserted by applicant – application for extension dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.72, 474, 476, 477 Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Azevedo v Secretary Department of Primary Industries and Energy (1992) 106 ALR 683 Bechara v Bates [2018] FCA 460 Fitzgerald v Masters (1956) 95 CLR 420 MZABP v Minister for Immigration (2015) 242 FCR 585 R v Riley (1896) 1 Q.B. 309 |
| Applicant: | SZVEB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3415 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 15 May 2018 |
| Date Reserved: | 6 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2018 |
REPRESENTATION
| In person via telephone. |
| Counsel for the Respondent: | Ms C. Saunders |
| Solicitors for the Respondent: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Respondent to read and rely upon the Affidavit of Deepak Joshi affirmed on 6 June 2018, which is marked Exhibit D.
The Application filed in this Court on 8 November 2017 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3415 of 2017
| SZVEB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Pakistan aged 41 years, having been born on 7 July 1976.
By Application filed in this Court on 8 November 2017 the Applicant seeks:
a)an extension of time under s.477(2) of the Migration Act 1958 (Cth) (the Act) of some 462 days or 16 months outside the time limit prescribed by s.477(1) for him to make his substantive Application to this Court under s.476(1); and
b)impliedly to quash and have redetermined the decision dated 29 June 2016 of a delegate (delegate) of the Minister that the application made by him on 27 June 2016 for a Bridging visa E (Class WE) (Bridging visa) was not a valid application because it did not meet Item 1305(3)(ba) (Item 1305) of Sch.1 to the Migration Regulations 1994 (Cth) (the Regulations).
As stated, the Applicant requires an extension of time under s.477(2) of the Act of some 462 days outside the time limit prescribed by s.477(1) for him to make his substantive application to this Court under s.476(1). Whether or not this required extension was validly applied for in writing pursuant s.477(2)(a) is an issue to be presently determined.
I am satisfied that this Court has jurisdiction under s.474(2) and s.474(3)(g) of the Act to review the delegate’s decision that the Bridging visa of the Applicant was not valid.
Background and Decision of Delegate of Minister
The Applicant was refused immigration clearance at Sydney Airport on 24 January 2016 for refusing or being unable to present to an immigration clearance officer evidence of a visa which was in effect and held by him.
On 27 June 2016 the Applicant, when in detention at Villawood Immigration Detention Centre, lodged through his migration agent his application for the Bridging visa the subject of this proceeding. In the letter from the migration agent, which forwarded the Bridging visa application it was asserted that the Applicant had been granted a Bridging visa on 18 May 2015 which had been cancelled on 15 September 2015 because of pending criminal charges laid against the Applicant at Fairfield Local Court, but which charges thereafter had been withdrawn on 15 January 2016.
Item 1305 relevantly provided and required for the grant of the Bridging visa that:
1305 Bridging E (Class WE)
(1) …
(2) …
(3) Other:
(ba) Applicant must be an eligible non‑citizen within the meaning of section 72 of the Act.
(4) ….
(emphasis supplied)
Section 72(1) of the Act provides that an:
“eligible non-citizen” means a non-citizen who:
(a) has been immigration cleared; or
(b) is in a prescribed class of persons; or
(c) the Minister has determined to be an eligible non-citizen.
In her decision of 29 June 2016 the delegate:
a)noted and had regard to Item 1305 and s.72 of the Act;
b)found that the Applicant had been refused immigration clearance upon arrival in Australia on 24 January 2016;
c)found that the Applicant was not in one of the prescribed classes of persons under s.72(1)(b) as prescribed by reg.2.20 of the Regulations;
d)found that the Minister had not determined that the Applicant was an eligible non-citizen for the purposes of s.72(1)(c) of the Act; and
e)found accordingly that the Bridging visa application was invalid.
I note at this point that I am satisfied that the evidence comprised in the affidavit of Mr Deepak Joshi affirmed on 6 June 2018 establishes the correctness of the jurisdictional facts found and relied upon by the delegate recorded in subparagraphs (b) to (d) above.
Claims of the Applicant
In his affidavit affirmed on 19 October 2017 the Applicant made the following claims in support of his Application:
a)He was arrested by Merrylands Police on 31 August 2015 for attempted bestiality. He was granted bail on 3 September 2015, and following a meeting with the Department of the Minister the Bridging visa which he held at that time was cancelled, on account of the charges, and he was moved to Villawood Detention Centre.
b)The charges of attempted bestiality were ultimately dropped by the Police due to a lack of evidence on 15 January 2016.
c)On 22 January 2016 he was provided with various documents regarding his migration status, including a notice of intention to remove him from Australia, a notice in respect of the costs of that removal and a letter signifying the withdrawal of Legal aid.
d)There was an attempt to return him to Pakistan, but he was refused entry into Pakistan by “the Pakistani immigration”.
e)He has been unlawfully detained since 15 September 2015 and is seeking assistance in this regard from the Court.
It will be observed that the affidavit does not specifically address the issue of the required extension of time.
Extension of Time – Requirement to be in Writing
Section 477(2)(a) of the Act provides as follows:
(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; …
(emphasis added)
In his Application filed in this Court, to the question ‘Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?’ the Applicant ticked the box labelled ‘No’ (No box), rather than the box labelled ‘Yes’. That is an inauspicious commencement to an argument that the Applicant has applied for an extension of time to this Court.
However, in the Application, immediately following the above question there is a section entitled ‘Grounds of application for extension of time’, and in that section, which required him to specify why he considered that it was necessary in the interests of the administration of justice to extend time, the Applicant stated:
1. I have been detained in Christmas Island.
2. Unable to file any application in the Court.
The Minister contends that the application for extension is incompetent because the Applicant has not sought an extension of time in writing and so the Court has no power to grant an extension. The Minister pleaded in his Amended Response filed in Court on 27 December 2017 as follows:
3. Pursuant to section 477 of the Migration Act 1958 (Cth) (the Act), an application for judicial review was required to be filed within 35 days of the date of the migration decision, being within 35 days of the date of the decision of the delegate. This 35 day period ended on 3 August 2016.
4. Accordingly, the application filed on 8 November 2017 requires an extension of time, and is not competent as it does not request an extension of time in writing in accordance with section 477(2)(a) of the Act. The Respondent formally reserves his right to object to the competency of the application however indicates that he will not oppose the Applicant amending his application so as to seek an extension of time in accordance with section 477(2)(a). Should such extension be sought, the Respondent reserves his position with respect to whether it is necessary in the interests of the administration of justice to make the order.
(emphasis added)
I note further that:
a)on the first return date of the Application on 9 February 2018 I pointed out to the Applicant that he needed an extension of time of about 18 months and that he had ticked the No box on his Application, which indicated that he did not need an extension of time. The procedural orders made on that occasion gave the Applicant an opportunity to file an Amended Application by 20 April 2018; and
b)the solicitors for the Minister sent a letter dated 13 February 2018 to the Applicant, at the email address given on his Application, which indicated that the Minister considered the Application as incompetent because it did not request an extension of time in accordance with s.477(2)(a) of the Act, that the Applicant had until 20 April 2018 to amend his Application to seek an extension of time and that if he did not avail himself of that opportunity the Minster intended to object to the competency of his Application at the hearing on 15 May 2018.
Unfortunately the Applicant did not amend his Application. Accordingly, consideration has to be given as to whether or not the Applicant has in truth made an application for an extension of time in writing. The form of Application by which the present proceeding was commenced was a form approved pursuant to r.44.05(1) of the Federal Circuit Court Rules 2001 (Cth). I am of the view that the form constitutes an “instrument”. In many authorities the word instrument is regarded as being synonymous with writing. In R v Riley (1896) 1 Q.B. 309 at 314 Hawkins J (as he then was) in the Court for Crown Cases Reserved stated:
Now, can this telegram properly be called an instrument? I am not aware of any authority for saying that in law the term “instrument” has ever been confined to any definite class of legal documents. In the absence of such authority, I cannot but think the term ought to be interpreted according to its generally understood and ordinary meaning, as stated in the dictionaries of Dr. Johnson and of Webster… Webster's definition is “a writing expressive of some act, contract, process, or proceeding.” When used generally, Dr. Johnson speaks of it as “that by means whereof something is done.” Webster, as “one who, or that which, is made a means, or caused to serve a purpose.” These definitions cover an infinite variety of writings, whether penned for the purpose of creating binding obligations or as records of business or other transactions.
To similar effect French J (as he then was) in Azevedo v Secretary Department of Primary Industries and Energy (1992) 106 ALR 683 stated at 699:
The ordinary English meaning [of instrument] in this context is “a formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter, or record, drawn up and executed in technical form”: Shorter Oxford English Dictionary.
In arriving at the true interpretation of a document or instrument its terms must be construed as a whole (per McTiernen, Webb and Taylor JJ in Fitzgerald v Masters (1956) 95 CLR 420 (Fitzgerald) at 437) and words may generally be supplied, omitted or corrected in an instrument where it is clearly necessary to avoid absurdity or inconsistency (per Dixon CJ and Fullagar J in Fitzgerald at 426 – 427). The objective is to give as much meaning as is reasonably possible to all parts of the instrument under consideration so as to avoid repugnancy and absurdity.
In this case I consider that there is an inconsistency between the Applicant’s unqualified negation (by ticking the No box) of applying for an extension order and his written statement that he had been detained in Christmas Island and unable to file any application in this Court in the section of his Application entitled ‘Grounds of application for extension of time’. Accordingly, that part of the instrument which is calculated to carry into effect the real intention of the applicant must be objectively discerned from the instrument as a whole and the portion which would defeat that objective intention is to be rejected. As Stevenson J said in Sharp v National Rugby League Ltd [2016] NSWSC 730 at 50:
[50] “Something has gone wrong with the language” (per Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 at [25] such as to warrant the words “cancelled or” being ignored, as a matter of construction (see Fitzgerald v Masters (1956) 95 CLR 420 at 426–427; Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25 at [20]–[21]; and Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202 at [46] and generally K Lewison and D Hughes, The Interpretation of Contracts in Australia, (2012, Lawbook Co) at [9.01].
In my view, primacy is to be given to the Applicant’s handwritten expression of his grounds for an extension of time over and above the No box, on what is otherwise a standard form of instrument. It follows that the negative answer expressed by the Applicant ticking the No box is to be disregarded and that the Applicant has made an application for an extension of time in writing and thereby satisfied the requirement of s.477(2)(a) of the Act. Accordingly, the Application filed in this Court is not incompetent.
Extension of Time
The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:
[17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.
(1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.
(2) The length of the delay is a relevant factor.
(3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.
(4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.
(5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.
[18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:
12. ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).
(emphasis removed)
The necessary extension of time of 462 days is not insubstantial, even for this class of litigation. The Applicant does not suggest that he was unaware of the applicable time limit of 35 days, but rather that he was in detention and unable to make an Application in this Court.
At the hearing Ms Saunders, who appeared for the Respondent, submitted that the Applicant had not provided any adequate reason for the delay and pointed out that the Applicant had commenced two applications from Christmas Island during his detention there, one in this Court (SYG 410 of 2016) and one in the Federal Court of Australia (NSD 787 of 2016).
Overall, I am not satisfied that the Applicant has given a reasonable and adequate explanation for his delay in making his substantive Application to this Court. I would usually need to go on to consider whether or not the Applicant’s substantive case in this Court is reasonably arguable or has reasonable prospects for success, not travelling beyond an examination of his substantive grounds at “a reasonably impressionistic level”: MZABP v Minister for Immigration (2015) 242 FCR 585 at 598 [62]. However, in this proceeding the Applicant has entirely failed to assert any substantive grounds to why the Delegate’s decision suffers from jurisdictional error. The Application filed in this Court does not contain any substantive Ground and at the hearing in this Court on 15 May 2018, despite my urging, the Applicant did not make any meaningful or coherent statement as to why the decision of the Delegate suffers from jurisdictional error.
It therefore follows that there would be no utility in granting the Applicant an extension of time.
Conclusion
In my view, the Applicant has no prospects of success in establishing that the decision of the delegate is affected by jurisdictional error and it is not in the interests of the administration of justice that the Applicant be granted an extension of time. In these circumstances, the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 June 2018
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