Chen v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 I have before me an application for extension of time to file and serve a notice of appeal. The proposed appeal is from orders made by the Federal Magistrates Court on 19 February 2007 dismissing an application for a judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 February 2006. 2 The applicant is a national of the Peoples Republic of China. He first entered Australia as a student on 25 April 2002 on a Student Temporary (Class TU) visa. Attached to that visa was Condition 8202 dealing with enrolment and course requirements. On 27 May 2004 the applicant was granted a further Student visa, which was subject to the same condition. On 27 September 2005 a delegate of the first respondent, then known as the Minister for Immigration Multicultural and Indigenous Affairs (the Minister), cancelled the visa for failure to meet Condition 8202. 3 On 5 October 2005 the applicant lodged with the Migration Review Tribunal (the Tribunal) an application for review of the delegate's decision. On 6 February 2006 the Tribunal affirmed the decision to cancel the applicant's student temporary (Class TU) visa. The Tribunal did so on the basis that the applicant had failed to satisfy Condition 8202. One aspect of Condition 8202 is that the decision-maker must be satisfied that the visa holder achieves an academic record that is certified by the education provider to be at least satisfactory. 4 The Tribunal had before it correspondence from the University of Wollongong, which was the relevant education provider, stating that the applicant was required to pass, but did not pass, 50% of his subjects for the 2005 autumn session. Accordingly, Condition 8202 was not satisfied. The applicant contended before the Tribunal that the breach of Condition 8202 was due to circumstances beyond the applicant's control, namely the illness of his mother. The Tribunal concluded, however, that, while it had some sympathy with the applicant, the Tribunal had no discretion in the matter. 5 In his application to the Federal Magistrates Court, the applicant relied on the ground that the Tribunal erroneously applied a repealed provision of the Regulations and failed to apply the substituted provision of the Regulations. That matter was dealt with in considerable detail by the primary judge, who gave oral reasons for dismissing the application for judicial review on 19 February 2007. A written version of those reasons was published on 8 March 2007. However, it was not until 10 March 2007 that the applicant took steps to appeal by filing an application for an extension of time. By that time, the twenty one day period for doing so had elapsed. The period began when the orders were made on 19 February 2007. 6 In his draft notice of appeal, the only grounds of appeal relied on are that the trial before the Federal Magistrates Court was not a fair trial in that: "(1) the applicant was unrepresented by legal advisers; (2) the applicant was not assisted by an interpreter in circumstances where he did not have a sufficient command of the English language to prosecute his own case; (3) the applicant did not have an adequate understanding of his case at law (and legal procedures in general) at the trial in circumstances where such inadequacy was apparent to the Court; (4) the applicant should have been entitled but was not given an opportunity to an adjournment of the trial." No complaint is made in the draft notice of appeal that the Federal Magistrates Court erred in the view that it took of the transitional provisions relating to the amendment of the Regulations. 7 The applicant relied on an affidavit sworn by him to support his contention that he did not receive a fair trial. He asserted in his affidavit that, on about 8 February 2007, he spoke to the officer responsible for his case at the Australian Government Solicitor's Office and was told that the officer needed to get instructions before an adjournment could be given. He said that he received no communication from the Minister or his solicitors until the hearing on 19 February 2007. 8 However, in cross-examination the applicant accepted that it could have been on 16 February 2007, namely the Friday before the hearing, that he had a discussion with an officer of the Australian Government Solicitor's Office. Ms Judith Pownall of the Australian Government Solicitor's Office has also deposed to having had a conversation with a person who identified himself as the applicant on Friday, 16 February 2007. In the course of that conversation the applicant acknowledged that he had received the Minister's submissions but wanted an adjournment because he was no longer represented. Ms Pownall told him that she would need to get instructions and that his request for an adjournment was very late, particularly in circumstances where he had filed a notice that his solicitor was no longer acting on 22 January 2007. He was told that he would need to attend the Court on Monday. Ms Pownall also asked the applicant whether he understood English well enough or whether he needed an interpreter. He responded that he did not need an interpreter. The applicant agreed in cross-examination that that is what he said on 16 February 2007. 9 I have before me the transcript of the hearing before the Federal Magistrates Court. At that hearing the applicant made no complaint about the absence of an interpreter and did not seek an adjournment of the hearing. The applicant said in his affidavit that he did not say anything at the hearing except answer a few questions from the primary judge. He said that he did not understand quite a few words that were spoken by the Minister's solicitor in her submissions to the Federal Magistrates Court. He said he did not know whether he could stop her and ask questions but, in any event, by the time he had formulated any questions, it was too late. 10 The applicant accepted that, at the completion of the hearing on 19 February 2007, he understood that he had not been successful. However, he says that nobody told him at that time that he only had 21 days from that date to appeal. 11 It is common ground that there was a further conversation involving the applicant and Ms Pownall on 15 March 2007, when the applicant telephoned and asked to meet to discuss his visa. He was told by Ms Pownall that he must communicate with the Minister's Department and that she could not give him any advice about his visa. 12 The applicant also said that he spoke to the Registry and understood, from what he was told, that he would have 21 days from the date when he received the judgment. He said that he understood that to mean receiving a letter enclosing the reasons. He said that he received the written reasons of the Federal Magistrates Court on 14 March 2007. It was not until after then that he realised that he was out of time for filing notice of appeal. 13 In the circumstances, if there were at least an arguable case in favour of any grounds of appeal, I would be disposed to extend the time. However, I am not persuaded that the grounds presently stated in the draft notice of appeal have any prospect of success. The applicant was clearly afforded procedural fairness at the hearing before the Federal Magistrates Court. He expressly declined the services of an interpreter, he made no complaint on the day of the hearing that he needed an interpreter and he did not ask for an adjournment. Further, there is no basis for concluding that, had he asked for an adjournment, an adjournment ought to have been granted. There is certainly no basis for concluding that the Federal Magistrates Court denied the applicant procedural fairness by not offering an adjournment in circumstances where he did not ask for one. He had known for some four weeks that he would not have legal representation. If the only grounds of appeal were those specified in the present draft notice of appeal, I would conclude that there would be no utility in extending the time. 14 However, I am concerned as to the legal question that was dealt with by the Federal Magistrates Court. My reading of his Honour's reasons does not lead me to conclude that there was any error. However, I have not had the advantage of detailed submissions on the question. It may well be that it is simply unfortunate for the applicant that the cancellation occurred when it did. Having regard to the course that I propose to adopt, I will say something about the legal question. 15 As at 27 February 2005, when the applicant's visa was cancelled, s 116(3) of the Act provided that one of the circumstances in which the Minister must cancel a visa is that the Minister is satisfied that the visa holder has not complied with Condition 8202. By Migration Amendment Regulation 2005 (No 8) of 6 October 2005, the relevant regulation was amended to provide that one of the circumstances in which the Minister must cancel a visa in the case of a student temporary (Class TU) visa, is relevantly, that the Minister is satisfied that the visa holder has not complied with Condition 8202 and that the non compliance was not due to exceptional circumstances beyond the visa holder's control. Reg 7 provided that that amendment applies in relation to all Student (Temporary) (Class TU) visas in force on or after the day on which that amendment commences. The amendment commenced on 8 October 2005. It is perhaps simply bad luck for the applicant that his visa was cancelled less than two weeks before the amendment became effective, namely, 27 September 2005. That, however, appears to be the effect of the transitional clause. 16 On the other hand, as I have said, it is a matter that could cause concern. I therefore propose to give the applicant the opportunity, if he wishes, of filing a further draft notice of appeal raising as a ground, that the Federal Magistrates Court erred in rejecting the ground specified in the application to that Court. I propose to adjourn the hearing of the application for leave, for three weeks, in order to give the applicant the opportunity of obtaining legal advice, filing a further draft notice of appeal and making written submissions. If, at the further hearing of the application, I am disposed to extend the time for filing a notice of appeal, I will hear the appeal forthwith. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.