Devanesan v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2022-11-15|Before: McEvoy J

The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".
The application for an extension of time and leave to appeal be dismissed.
The applicant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 By an application filed 25 November 2020 the applicant seeks an extension of time and leave to appeal from orders of the Federal Circuit Court of Australia (FCCA) made on 17 September 2020 in Devanesan v Minister for Immigration & Anor [2020] FCCA 2586. The primary judge dismissed an application in a case to reinstate the applicant's application of 16 July 2018 seeking judicial review of a decision of the Administrative Appeals Tribunal made on 31 May 2018 which affirmed a decision of a delegate of the first respondent (the Minister) refusing to grant the applicant a Student (Temporary) visa pursuant to s 65 of the Migration Act 1958 (Cth). 2 The applicant arrived in Australia on 8 July 2016 as the holder of a Tourist FA-600 visa, and on 30 September 2016 he was granted a second tourist visa. On 8 January 2017 the applicant applied for Student (Class TC) (subclass 500) visa. On 2 March 2017 a delegate of the Minister refused to grant the visa pursuant to s 65 of the Migration Act, on the basis that he had doubts about whether the applicant genuinely intended to remain in Australia temporarily. The applicant then applied to the Tribunal for merits review of the delegate's decision. As has been mentioned, the Tribunal affirmed the decision of the delegate. It did so on the basis that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily for the purposes of study, as required by cl 500.212 of the Migration Regulations 1994 (Cth). 3 The applicant's application for judicial review of the Tribunal's decision, which was accompanied by an application also seeking an extension of time within which to bring the application, was dismissed after the applicant had failed to appear when the matter was called on for a scheduled directions hearing. On 3 February 2020 the applicant made the application for reinstatement in the FCCA. 4 The decision of the primary judge dismissing the reinstatement application is interlocutory in nature: SZHSY v Minister for Immigration and Citizenship [2007] FCA 793 at [1] (Stone J) and Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [3] (Pagone J). Accordingly, the applicant requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Pursuant to r 35.13 of the Federal Court Rules 2011 (Cth), the applicant was required to file any application for leave to appeal within 14 days after the date on which the judgment appealed from was pronounced or the order was made. Therefore, the application for leave to appeal was due to be filed by the applicant on 1 October 2020. It was not filed until 25 November 2020, some 55 days (more than seven weeks) outside of the period prescribed by the Rules. Accordingly, the applicant also requires an extension of time to file his application for leave to appeal. 5 The applicant seeks an extension of time on the grounds that he was not aware of the "option" to institute an appeal because of the lack of legal support available to him, his ability to take action to progress his case was impacted by COVID-19, and he was prevented from taking steps to acquire legal support because he was "mentally unstable." He relies on the following material in support of his application: (a) affidavit of Jerry Billington Devanesan affirmed on 25 November 2020; and (b) affidavit of Jerry Billington Devanesan affirmed on 4 December 2020. It is to be noted that these affidavits merely set out the grounds which are stated in the application of 25 November 2020, as well as the draft notice of appeal. They do not advance any further substantial information. 6 At the hearing this morning the applicant submitted also that it is his intention to stay in the country for the purposes of education, and that he would like to enrol in a course and study music therapy. He submitted that if he is given this opportunity, he will contribute to the community. 7 The Minister opposes the application on two grounds. First, that the applicant's substantial delay in lodging his application for leave to appeal is not satisfactorily explained; and secondly, that the applicant's proposed grounds of appeal lack sufficient merit to warrant either an order extending time, or a grant of leave to appeal. The Minister relies on the affidavit of Michelle Stone affirmed on 8 December 2020. The Minister also filed written submissions on 17 October 2022. 8 For the reasons that follow, the application will be dismissed.

Application for extension of time 9 The decision to grant an extension of time to appeal is a discretionary one. In determining whether to grant an extension, the Court should consider the following factors: (a) the length of the delay; (b) the explanation for the delay; (c) any prejudice to the respondents; and (d) the merits of the proposed appeal. In this regard see AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at 343-344 [10] (North, Besanko and Flick JJ); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [19] (Murphy J); DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28] (Foster J); BAO15 v Minister for Immigration and Border Protection (2016) 151 ALD 352 at 356 [19] (Perry J) and CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] (Mortimer J).

Application for leave to appeal 10 In considering whether leave to appeal should be granted it must be shown that there is sufficient doubt as to the correctness of the judgment below and that if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ).

Length and reasons for the delay 11 It is submitted by the Minister that the applicant's delay of 55 days in lodging his application for leave to appeal is significant and has not been adequately explained. As has been mentioned, the applicant claims that he was not aware of the "option" available to him to institute an appeal because of a lack of legal support. The Minister submits that an absence of knowledge or mere ignorance of time limits is, of itself, an insufficient explanation for a delay in commencing proceedings: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [5]-[6] (Flick J); SZSDA v Minister for Immigration & Citizenship (2012) 135 ALD 17 at 23 [38] (Foster J). Additionally, the Minister notes that the applicant does not explain what steps he took to inform himself of his ability to seek leave to appeal. 12 The applicant bears the onus for making and progressing his application within a timely manner, particularly given his failure properly to progress his judicial review application and his reinstatement application in the Court below. I do not consider that the applicant's claim, that he was not aware of the "option" available to him to institute an appeal because of a lack of legal support, in the absence of any explanation about what steps he did take to consider an appeal or obtain legal assistance, is a sufficient explanation for his delay. 13 Insofar as the applicant's submission that his ability to take action to progress his case was impacted by COVID-19 is concerned, the Minister submits that the applicant has not provided any explanation or evidence to demonstrate how the pandemic and relevant restrictions have prevented him from progressing his case. I accept the Minister's submissions in this regard. There is no detail whatsoever provided by the applicant in relation to this aspect of his case. 14 Turning finally to the applicant's submission that he was prevented from taking steps to acquire legal support because he was "mentally unstable", the Minister submits once again that the applicant does not provide any explanation or evidence in relation to his mental condition or explain how it prevented him from acquiring legal support or commencing these proceedings within the prescribed time period. I observe, in this connection, that pro bono legal assistance has been offered to the applicant for the purposes of this application, but he has failed to take this offer up.

Prejudice to the respondent 15 The Minister submits that other than incurring costs, there will be no prejudice to the Commonwealth if an extension of time were to be granted, although it is noted, and I accept, that an extension of time can be refused even in the absence of a showing of any material prejudice: AZAEY at 344 [11].

Merits of the proposed appeal 16 The Minister contends that there is insufficient merit in the substantive application pressed by the applicant for there to be a grant of leave to appeal. 17 The draft notice of appeal sets out two proposed grounds of appeal as follows: 1. Applicant thinks the order, which is based on the application has a question of law and it should be investigated. 2. Applicant has provided lot of information and supporting documents for the Visa application. Applicant believes this information was not considered properly and not granted a fair order. 18 It is submitted by the Minister that the above grounds are bare assertions of error which are meaningless without further particulars identifying how the primary judge erred in dismissing the reinstatement application. In WZAVW v Minister for Immigration [2016] FCA 760 at [35], Gilmour J noted in relation to an unparticularised assertion of jurisdictional error that a failure to particularise a ground of review is sufficient basis for it to be dismissed. 19 The Minister also submits that neither ground actively engages with the primary judgment and accordingly fails sufficiently to demonstrate any error which would warrant the grant of leave to appeal, and that the first ground fails to identify the "question of law" which the applicant claims "should be investigated". It is the Minister's contention that, properly understood, this complaint invites the Court to undertake impermissible merits review. 20 The second ground, the Minister submits, misconstrues the decision of the Tribunal and the decision of the primary judge. As the primary judge observed at [36] in relation to this second ground, "in the absence of specific details regarding the information the Tribunal is said to have overlooked, this ground is incapable of establishing jurisdictional error." Plainly his Honour was correct in this observation. 21 The Minister also submits that the primary judge correctly noted that the Tribunal had properly observed that the applicant was not enrolled in any course of study and therefore did not satisfy cl 500.211 of Sch 2 of the Regulations, and that the Tribunal was entitled, based on the material before it, not to be satisfied that the applicant genuinely intended to stay in Australia temporarily and as such did not satisfy cl 500.212 of the Regulations. 22 I accept the Minister's submissions in relation to all of these matters and consider that the draft grounds of appeal lack sufficient merit to warrant either an order extending the time for the making of the leave application, or a grant of leave to appeal. It is well established that the court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [11] (Lindgren J) and SZQGO v Minister for Immigration & Citizenship (2012) 125 ALD 449 at 454 [29] (Murphy J).

CONCLUSION 23 For these reasons there will be orders substantially in the terms proposed by the first respondent. The application will be dismissed and the applicant will be ordered to pay the Minister's costs of the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

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