Bajwa v Minister for Immigration and Border Protection

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an application for an extension of time to file a notice of appeal and for leave to appeal from a decision of the Federal Circuit Court of Australia which dismissed an application to review a decision of the Migration Review Tribunal. The Tribunal had upheld a decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a visa. 2 The applicant had applied for a Student (Class TU) (Subclass 572) visa on 27 September 2012. The application was on 8 February 2013 and the applicant sought a review of that decision on 14 February 2013. The Tribunal decided that application in favour of the applicant and remitted the matter for reconsideration and assessment. On 11 October 2013 and 10 January 2014, the Department of Immigration and Citizenship requested that the applicant provide further information in relation to his visa application to satisfy clause 5A407 (English Language Proficiency of the Migration Regulations 1994 (Cth)) ("the Migration Regulations"), but the applicant did not respond. On 4 April 2014 a delegate of the Minister refused to grant the applicant a visa on the basis that he had not satisfied cl 572.223 of Schedule 2 to the Migration Regulations. 3 The applicant applied for review of that decision on 14 April 2014 and attended a hearing of the Tribunal on 7 November 2014. The Tribunal affirmed the delegate's decision orally on the day of the hearing and provided a written decision record on 11 November 2014. An application to the Federal Circuit Court to review the decision of the Tribunal was heard on 12 February 2016 and the primary Judge dismissed the application. On 2 May 2016 the applicant filed an application with this Court seeking an extension of time to appeal from the decision and orders of the Federal Circuit Court. 4 An appeal to this Court from the decision of the Federal Circuit Court needed to be filed within 21 days of the date of the decision by the Federal Circuit Court. The decision was made on 12 February 2016 and the last day on which a notice of appeal needed to be filed was 4 March 2016. That did not occur and the applicant, therefore, required an extension of the time within which he could file a notice of appeal. The application for an extension of time was filed on 2 May 2016 being nearly two months after the last date upon which he could file an appeal in accordance with the rules. 5 Rule 1.39 of the Federal Court Rules 2011 (Cth) gives the Court a discretion to extend the time within which to file a notice of appeal: 1.39 Extension and shortening of time The Court may extend or shorten a time fixed by these Rules or by order of the Court: (a) before or after the time expires; and (b) whether or not an application for extension is made before the time expires. In deciding whether or not to grant an extension of time, however, the Court must be satisfied that it is proper to grant the extension which is sought. In doing so it is important to bear in mind that a period is prescribed within which to make such applications. A consideration of whether it is proper to grant the extension will, therefore, usually require that the applicant provide an adequate reason for the delay: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, [19]; Parker v The Queen [2002] FCAFC 133, [6]-[7]. It is also relevant to consider whether the grant of an extension will cause prejudice to the respondent, although an absence of prejudice to the respondent will not be sufficient to warrant the grant of an extension. The merits of a proposed appeal are also relevant to whether an extension should be granted and to whether leave to appeal should be given: see SZQCZ, [19]; Parker, [6]. 6 The applicant filed an application for an extension of time together with an affidavit in support of his application. There was no draft notice of appeal accompanying the application or affidavit, but the Minister's submissions assumed that the contents of the applicant's affidavit were to be treated as the grounds which he would seek to rely upon in any appeal. 7 The form completed by the applicant as an application for an extension of time contained no details of the application beyond the words "notice of appeal from Judge Hartnett on 12 February 2016". No other details of a proposed appeal or of any reasons for seeking leave to appeal appeared in that document. The applicant's affidavit did not provide much more. It contained two numbered paragraphs stating: 1. The circuit court did not consider my documents during the court hearing and they did not give me a chance to provide them more documents. 2. I would like to provide some extra time as I can provide them all evidence to support my application to grant visa. There were no other details of the material that he wished to provide or that he might contend that he had tried to provide but had not been allowed to provide. The applicant was invited at the hearing to make further submissions in support of his application for an extension of time within which to file an appeal. He was informed of the need to provide an explanation of his failure to have filed his application within time. He was also informed that the Court could not undertake to review his applications on the merits but only to consider whether the decision of the Federal Circuit Court demonstrated legal error: see SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, [11]; SZRQA v Minister for Immigration & Border Protection [2013] FCA 962, [5]. 8 There are no facts explaining the applicant's failure to make his application within the time required by the rules. There is also nothing in the application, or in what the applicant said at the hearing, that would justify a conclusion that the decision by the Federal Circuit Court was in error or that there is sufficient doubt about its correctness or that the applicant would suffer an injustice if an extension of time and leave to appeal were refused. He gave evidence from the bar table about having recently been married, about having given money to his wife and of his wife being pregnant, however, his personal circumstances, although difficult, do not explain the failure to lodge an appeal in time or show reviewable error by the Federal Circuit Court or by the Tribunal. There was no material which showed any attempt to comply with the requirements or which linked his personal circumstances to the failure to make his application in the time required by the rules to explain why the requirements were not complied with. The application should, therefore, be refused. 9 The lack of merits of a proposed appeal, if an extension of time or leave to appeal were to be granted, is another reason to refuse the application for the extension of time and to refuse the grant of leave to appeal. No purpose is served by granting an extension of time to lodge an appeal or to grant leave to appeal which has insufficient prospects of success. The issue for the Court to consider is whether the applicant has shown that there is sufficient doubt about the correctness of the decision of the Federal Circuit Court to warrant review and that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if the extension of time and leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399. The applicant has not shown either that there is sufficient doubt about the correctness of the decision against him or that he would suffer injustice if the extension of time and leave to appeal were refused. 10 A consideration of the decision of the Federal Circuit Court and of the Tribunal reveals no error of a kind raised by the applicant. The issue before the Tribunal was whether the applicant had met requirements that he was enrolled, or had a current offer of enrolment, in a course of study. The applicant gave evidence at the hearing that he had completed English Language Intensive Courses for Overseas Students (or ELICOS), cookery and hospitality courses and was at that time enrolled in a cookery course and that his confirmation of enrolment was at home. The applicant requested time to provide his confirmation of enrolment to the Tribunal; however, the Tribunal decided that he had had sufficient time and that he had failed to provide "a good reason" for extending time. Accordingly, the Tribunal found that there was no evidence before it that the applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study and affirmed the delegate's decision. The Tribunal also found that the applicant did not provide evidence that he had satisfied the English language requirement. The Tribunal said at [8]-[11] in its reasons: 8. The applicant claimed at hearing that he had completed ELICOS, cookery and hospitality courses, but despite being requested to do so he did not provide any evidence at the hearing. I asked the applicant whether he was currently enrolled in a course, he said he was. I asked what that was and the applicant said it was also cookery. I asked if he had a CoE and he said he did. I asked where that was and he said it was at home. I asked why he had not brought it with him to the hearing as requested in the hearing letter. The applicant said that he did not know he needed it. I referred him to the hearing letter, a copy of which he had at the hearing. He said someone at the Tribunal had told him that was all he needed to bring. The applicant asked for more time to provide the CoE. I explained that I considered he had had enough time to produce a CoE, that the hearing letter, which he had clearly received, requested he provide this information prior to the hearing, and no later than the date of the hearing, that I did not consider he had provided a good reason for me to wait any longer, and proceeded to make an oral decision. I do not accept that the applicant has a CoE or a current offer of enrolment, nor that he was told by someone at the Tribunal that he only had to bring the letter to the hearing. There is no evidence before the Tribunal that the applicant is now enro1lcd in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met. 9. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa) the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian. 10. For these reasons the decision under review must be affirmed. Other matter 11. At the hearing the applicant also stated that he did not have any evidence that he met the English language requirement. He indicated he did not have any evidence of his past studies in Australia, or an explanation for any study gaps in his enrolments, or any documents that demonstrated he had sufficient funds, all of which were listed in the hearing invitation with a request that the applicant provide 7 days prior to the hearing. These documents are required to establish that the applicant meets other criteria for the grant of the visa. Given the above findings, it is not necessary for the Tribunal to make findings on these other matters. The Tribunal was able to make these findings on the materials available to the Tribunal, and no error has been shown in the Tribunal's findings or in its reasoning. 11 The application for judicial review from the Tribunal's decision to the Federal Circuit Court relied upon two grounds set out at [11] of her Honour's reasons: 1. I am not satisfied with the decision because I am still studying here. 2. This has been done because of the lawyers mistake so, I need the review of this. Her Honour considered these grounds as being an expression of dissatisfaction and disagreement with the decision of the Tribunal. At [14] her Honour said: The Applicant's first ground as set out in his Application is an expression of dissatisfaction and disagreement with the decision of the Tribunal. Further, it is claimed in circumstances when there is no evidence before the Court, and nor was there before the Tribunal, that the Applicant is actually studying here. The history of the Applicant's study since arrival is illuminating, but that is not strictly relevant to this consideration. Her Honour then considered those grounds (as so construed) and dismissed them as having no merit. The specific complaint that there had been a mistake by the lawyers was found to lack any evidence and at [15] her Honour said: The Applicant's second ground which refers to a lawyer's mistake affecting the decision in his case is equally without merit. The Applicant did not appoint an agent or authorised recipient in the proceedings before the Tribunal. The Applicant has been a litigant in person in the proceedings in the Court. There is no evidence as to any legal advice received, from any person, by the Applicant. In any event as correctly submitted by Counsel for the First Respondent, third party fraud causes a Tribunal decision to be affected by jurisdictional error where that fraud stultified the processes of the Tribunal in some way [SZFDE v the Minister for Immigration and Citizenship [2007] HCA 35, (2007) 237 ALR 64, 81 ALJR 14101, per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ at 49]. There is no basis upon which any advice that may have been received by the Applicant can be said to have affected the Tribunal's processes. No particulars were provided by the Applicant in respect of this ground and it is, essentially, meaningless. Her Honour fully considered the applicant's broader ground and dismissed it as lacking merit and foundation in paragraphs [4]-[9] of her Honour's decision. The applicant's reference (in paragraph [2] of the affidavit accompanying his application to this Court) of needing extra time to provide further evidence to support his application for the visa which he sought is not a ground alleging error, unless the reference to needing more time is to be understood as a complaint that he had been denied an opportunity that had been sought and had not been granted for legally incorrect reasons. There is, however, no basis upon which such a ground can be made out in these proceedings. 12 Accordingly, the application will be dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.