Warnakulasooriya v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 800
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Warnakulasooriya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 800
File number(s): MLG 1994 of 2022 Judgment of: JUDGE SYMONS Date of judgment: 5 September 2023 Catchwords: MIGRATION – application for extension of time for review of decision made by Registrar to summarily dismiss judicial review application – no adequate explanation for delay – no prejudice to respondents – no realistic prospect of success – extension of time refused with costs Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 254, 256
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13, 21.01, 21.02, 21.04
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Schedule 2, cl 600.223
Cases cited: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 176 Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission: 18 August 2023 Date of hearing: 18 August 2023 Place: Melbourne Applicant: In person Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1994 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UDARA SAMITH FERNANDO WARNAKULASOORIYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
5 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time to review the decision made by a Registrar filed on 11 August 2023 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $1,200.
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 SYMONS:
INTRODUCTION
The application before the Court is an application filed under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) for review of a decision made by a Registrar of the Court. On 20 June 2023 a Registrar summarily dismissed a judicial review application filed by the applicant on 29 August 2022 in respect of a decision made by the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister not to grant the applicant a Student (Subclass 600) visa (visa).
The application for review of the Registrar’s decision was made outside of the time frame prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The applicant therefore requires an extension of time and has sought one in this application.
For the reasons below, I do not grant the applicant an extension of time to review the Registrar’s decision.
BACKGROUND
The applicant is a citizen of Sri Lanka and was previously the holder of a Student (Subclass 500) visa (student visa) which expired on 15 March 2020.
The applicant applied for the visa on 5 May 2020, whilst an unlawful non-citizen (CB 1-28).
In a cover letter attached to the application, the applicant’s representative explained that the applicant sought the visa to remain lawfully in Australia for a short period of time to organise his affairs before returning home. This claim was repeated on page 6 of the application (CB 6).
On 2 November 2020, a delegate of the Minister invited the applicant to comment on the following unfavourable information it had received:
Departmental records indicate that the last substantive visa you held ceased on 15/03/2020. There is no provision to grant a Tourist stream (subclass 600) visa to a person who applies for the visa more than 28 days after their last substantive visa ceased. As you were an unlawful non-citizen and did not hold a substantive visa within 28 days of your visa lodgement, you may not meet Schedule 3, criterion 3001. A Visitor (subclass 600) visa therefore cannot be granted to a person in your circumstances.
The applicant was initially given 28 days to respond. However, following a request from his representative, the time for response was extended to 10 December 2020 (CB 34). Despite this, the applicant did not provide any material responsive to the invitation (CB 41).
On 8 March 2021, a delegate of the Minister refused to grant the applicant the visa. The delegate found that in circumstances where the applicant had not applied for the visa within 28 days of holding a substantive visa and had provided no further information to explain the circumstances which led to him to lodge the onshore visa application after his last substantive visa had expired, she was not satisfied that the applicant met criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations). As a result of this finding, the applicant was unable to satisfy cl 600.223(2) of Schedule 2 to the Regulations (CB 39-41).
On 29 March 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 42-43).
On 28 April 2022, the Tribunal invited the applicant to attend a hearing on 17 May 2022 (CB 51-54).
On 11 May 2022, the applicant’s representative wrote to the Tribunal requesting the hearing be postponed (CB 62). The hearing was subsequently rescheduled to occur on 12 July 2022 (CB 67-70).
On 27 June 2022, the applicant’s representative requested a further postponement (CB 73). The Tribunal granted the request and rescheduled the hearing to 26 July 2022 (CB 74-78).
On 19 July 2022, the applicant’s representative provided a submission to the Tribunal which after setting out “the relevant law” identified under the heading “application of the facts to the relevant law” matters including (CB 87-104):
(a)a concession that the applicant last held a substantive visa on 15 March 2022 which for the purpose of PIC 3001 was the last day the applicant held a substantive visa;
(b)a concession that the applicant applied for the visitor visa on 5 May 2020 and that this was more than 28 days after his substantive visa ceased;
(c)an explanation that prior to the expiry of the student visa, the applicant attended an education institution and was promised by the institution that a further student visa application would be lodged on his behalf prior to the expiry of the current student visa. However, the applicant was misled and deceived by the education institution and as a result the applicant became unlawful;
(d)the applicant was a genuine student until factors beyond his control, which included the financial impact on his parents and brother of the COVID-19 pandemic, intervened;
(e)there were compelling reasons for granting the applicant the visa which included his desire to further his education and the current political and economic crisis in Sri Lanka;
(f)the applicant would have satisfied the criteria for the grant of the visa other than the Schedule 3 criteria.
The applicant’s representative attached supporting documents to the submission, including two statutory declarations dated 12 May 2022 made by the applicant, copies of the applicant’s confirmations of enrolment, statement of attainment, visa grant notice, medical evidence that his parents had contracted COVID-19 in February 2020, and a letter that referred to the termination of the applicant’s brother’s employment in Italy (CB 95-104).
On 26 July 2022, the applicant attended the hearing with his representative and a witness. He was assisted by an interpreter in the Sinhala and English languages (CB 107-109). On the same day, the Tribunal affirmed the decision under review and published a statement of decision and reasons (Reasons) (CB 111-116).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the issue in the applicant’s case as whether he met the Schedule 3, Public Interest Criteria 3001 for the purposes of cl 600.223(2) of Schedule 2 to the Regulations.
The Tribunal set out cl 600.223(2) which states:
(2)If the applicant was in Australia at the time of application, and did not hold a substantive visa:
(a)the last substantive visa the applicant held was not a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic Consular) stream; and
(b)the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.
The Tribunal noted the effect of criterion 3001, namely, that the application is made within 28 days after the “relevant day” and identified the “relevant day” in the case of the applicant as being the last day he held a substantive visa.
The Tribunal noted that information contained in the decision of the delegate and confirmed at hearing, was that the applicant had last held a substantive visa when his student visa ceased on 15 March 2020. As the current application was made on 5 May 2020, the application was not made within 28 days after the applicant last held a substantive visa and the applicant did not satisfy criterion 3001 of the Schedule 3 criteria. Accordingly, the applicant did not meet cl 600.223 and the Tribunal was bound to affirm the decision to refuse the visa application.
The Tribunal referred to the written submission and supporting documents (refer [14]-[15] above) and summarised their content. The Tribunal noted the applicant’s evidence given at hearing and the applicant’s confirmation that he had started studying again and was due to complete a Diploma of Business by February 2023. The Tribunal also referred to the evidence given by the applicant’s friend, which corroborated the applicant’s experience of financial difficulties.
The Tribunal observed that it had no reason to doubt the applicant’s evidence and that it had sympathy for the circumstances he found himself in. The Tribunal noted however that it had no discretion to extend the 28-day period or to waive it by taking into account circumstances of the kind described by the applicant.
PROCEEDINGS IN THIS COURT
On 29 August 2022, the applicant filed an application under s 476 of the Migration Act 1958 (Cth) (Act) seeking judicial review of the Tribunal decision. The applicant raised the following grounds of application, reproduced without alteration:
1.The Tribunal decision contains errors of law and is not a legal decision.
2.The Tribunal failed to correctly apply section 65 of the Migration Act 1958 and rules of statutory interpretation.
3.The Tribunal failed to apply the law surrounding the operation of a legislation in extraordinary circumstances.
4.The Tribunal ought to have found that strict compliance with the Migration Act 1958 was suspended during Covid-19 where such compliance was an impossibility due to factors beyond the Applicant’s control.
5.That the effects of Covid-19 had led to the Applicant’s funding being interrupted for his studies and he could not obtain a further enrolment to apply for a student visa within the required statutory timeframe.
6.That compliance with delegated legislation to the extent such compliance was impossible due to Covid-19 ought to be a reasonable and legal exception.
7.That such compliance with delegated legislation in the Migration Act 1958 such as cl. 600.223 and Schedule 3 ought to have been held to be suspended till the Applicant could have a reasonable chance to comply.
8.That in the circumstances the Applicant ought to have been permitted to apply for and be considered for a grant of a student visa outside the 28 day timeframe of his prior visa expiring.
9.That the legislation being the Migration Act 1958 and its delegated rules are not fixed and strict and are subject to interpretation and suspension as far as reasonably necessary in such a case of a supervening and extraordinary event such as Covid-19.
10.The Applicant does not challenge the validity of the Migration Act 1958 or its delegated legislation made thereunder but only challenges its operation and scope of operation and whether operation and compliance strictly is required in the face of the effects of Covid-19.
In an amended response filed on 3 October 2022, the Minister sought an order that the application be dismissed pursuant to r 13.13 of the Rules. The application was listed for this purpose before a Registrar on 20 June 2023 and informed by an outline of submissions filed by the Minister on 6 June 2023 and an outline of submissions filed by the applicant on 19 June 2023.
On 20 June 2023, a Registrar made a decision to summarily dismiss the applicant’s judicial review application pursuant to r 13.13(a) of the Rules, on the basis that the applicant had no reasonable prospect of prosecuting the proceeding. The Registrar made this decision exercising delegated power pursuant to s 254 of the FCFCOA Act: see also item 58 in r 21.01 of the Rules.
On 11 August 2023 the applicant filed, pursuant to s 256 of the FCFCOA Act, an application for review of the Registrar’s decision.
LEGISLATION AND PRINCIPLES RELEVANT TO APPLICATIONS FOR REVIEW
Section 256(1) of the FCFCOA Act allows a party to a proceeding in which a delegate has exercised the powers of the Court under s 254 to apply to the Court for a review of the exercise of that power. The application for review must be made within the time prescribed under the Rules or within any further time allowed in accordance with the Rules. The time limit prescribed by r 21.02(1) of the Rules is seven days. Rule 21.02(2)(a) allows the Court to extend this time frame on any terms it thinks fit.
Rule 21.04 provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo. Accordingly, I am required to conduct what is effectively a re-hearing of the Minister’s application for summary dismissal save that any earlier tendered affidavit or exhibit, as well as any transcript of the proceeding, may be received as evidence on the review.
The review application was listed before me on 18 August 2023 on which occasion the applicant appeared in person and was assisted by an interpreter in the English and Sinhala languages. The Minister was represented by lawyer Ms Petrovski. In addition to the submissions that were before the Registrar, the Minister also relied upon a set of submissions filed on 15 August 2023.
EXTENSION OF TIME APPLICATION
Relevant considerations
The principles that apply to whether the Court should grant an extension of time are well-established: see, for example, Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 (Hunter Valley Developments). In deciding whether to grant an extension of time, the Court will often have regard to considerations such as the length of the delay, whether the applicant has a reasonable explanation for the delay, any prejudice to the respondent or third parties and the merits of the underlying application.
Length of the delay
In the present case, the Registrar’s decision was made on 20 June 2023 and the seven-day prescribed time frame to seek review of that decision ended on 27 June 2023. The application for review was filed on 11 August 2023, over six weeks out of time. A delay of six weeks may not be excessive, but it is not insignificant when viewed in the context of a prescribed time frame of only seven days.
Explanation for the delay
In his application for review document the applicant wrote: “The reason for Extension of Time for this application is the applicant was not aware of this application (form B3A) until the court direction on 28 July 2023 to file this and applicant was unable to get proper legal advise (sic) as he faced lot of personal issues”.
When I inquired of the applicant at the hearing what steps he had taken to obtain legal support, he told the Court that he had not been able to do so because he didn’t have work rights and didn’t have enough funds. When asked what (if any) steps he had taken to see if legal aid or assistance that didn’t require payment was available, the applicant told the Court that he had looked into that (legal aid) but wasn’t able to get more information.
When asked when he came to understand that he had only seven days to file his application for review the applicant told the Court that he couldn’t recall the precise date but that it was towards the end of the seven-day period.
I do not consider that the applicant has provided an adequate explanation for a delay of over six weeks. I accept the Minister’s characterisation of the explanation as “vague”. This applies both to the explanation given in writing and the explanation given orally to the Court. Given that the applicant became aware of the prescribed time-frame inside the seven day period the lack of activity on his part is more confounding and difficult to reconcile with the reference in his application document to a court direction on 28 July 2023 (some four weeks later).
The lack of adequate explanation for the delay weighs against the grant of an extension of time.
Prejudice
The Minister has not claimed any prejudice as a result of the delay and I do not consider that the Minister would face any prejudice as a result of the delay in filing the application for review. However, the mere absence of prejudice alone does not justify the grant of an extension of time: Hunter Valley Developments at 349.
Merits: whether the applicant has a reasonably arguable case
I then turn to the merits of the underlying application. In the context of considering an extension of time to seek review of the Registrar’s decision, the underlying application is the application for review of the Registrar’s decision to summarily dismiss the applicant’s judicial review application. For the following reasons, the applicant does not have a reasonably arguable case to prevent summary dismissal of his judicial review application on a de novo review of the Registrar’s decision.
The Court has the power to summarily dismiss the application for judicial review if the applicant has no reasonable prospects of successfully prosecuting that application: see s 143(2)(b) of the FCFCOA Act and r 13.13(a) of the Rules. This necessarily directs attention to the applicant’s judicial review application.
At a reasonably impressionistic level, the applicant’s judicial review application has no reasonable prospects of success. This is because, by his proposed grounds of review (refer [23] above), the applicant has failed to grapple with the reality that on the facts found by the Tribunal (and confirmed by the applicant) there was an inevitability about the decision made by the Tribunal. In other words, in circumstances where the applicant had failed to make an application for the visa within 28 days of the day on which he last held a substantive visa, he could not meet criterion 3001 and therefore could not satisfy cl 600.223(2) of the Regulations. It is evident that the Tribunal was aware of the applicant’s personal circumstances and the impact especially of COVID-19 on his family members. However, the Tribunal correctly proceeded on the basis that it had no discretion to extend or waive the 28-day requirement. The decision that the Tribunal made was the only one open to it.
Balance of extension of time factors
Overall, I am not satisfied that it is appropriate to grant the extension of time sought by the applicant to seek review of the Registrar’s decision. The applicant has failed to offer an adequate explanation for a delay that is not insignificant in length. Furthermore, there is no realistic prospect of the Court finding that the applicant has any reasonable prospect of success in his judicial review application.
CONCLUSION
I therefore refuse the application for an extension of time for the applicant to seek review of the Registrar’s decision.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 5 September 2023
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