Hassan v Minister for Immigration and Border Protection

JUDGE: BARKER J DATE: 26 NOVEMBER 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Mr Nazmul Hassan applied for a student (temporary) (class TU) visa on 28 August 2013, based on his enrolment in a graduate diploma of information technology. 2 On 11 October 2013, a delegate of the Minister refused Mr Hassan's visa application. The delegate found that Mr Hassan had not provided evidence in respect of his financial capacity and overseas student health insurance, as required by cll 573.223 and 573.225 of Sch 2 of the Migration Regulations 1994 (Cth). 3 Mr Hassan brought an application for review of this decision, but the Migration Review Tribunal affirmed the delegate's decision on 30 April 2014. 4 The Federal Circuit Court summarily dismissed Mr Hassan's application for judicial review of the Tribunal's decision on 2 July 2014, pursuant to R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the application of the Minister. See Hassan v Minister for Immigration & Border Protection [2014] FCCA 1408. The primary judge found that Mr Hassan's application did not raise an arguable case for the relief claimed. 5 Mr Hassan now applies for an extension of time, and leave to appeal from the Federal Circuit Court's judgment.

the tribunal's decision 6 Mr Hassan was initially invited to appear before the Tribunal on 20 February 2014, but this hearing was postponed to 30 April 2014 at his request. 7 Mr Hassan's migration agent confirmed the hearing date by telephone in advance. However, when the matter came on for hearing on 30 April 2014, Mr Hassan did not attend and did not seek to have the hearing date vacated or relisted. Accordingly, the Tribunal proceeded to make its decision on the material then available to it without an appearance by Mr Hassan. 8 The issues before the Tribunal were whether Mr Hassan satisfied the requirements in cl 573.223(2)(a) of Sch 2 of the Regulations and whether, at the time of the Tribunal's decision, he met the enrolment requirements for a student visa. 9 In respect of the enrolment requirements, the Tribunal noted that cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of the decision, an applicant must be enrolled in, or be the subject of a current offer of enrolment, in a course of study that is a principal course and of a type specified under reg 1.40A for the subclass at the time of the application. 10 The Tribunal found that there was no evidence that Mr Hassan was presently enrolled in, or the subject of an offer of enrolment in, a course of study. It observed that it had specifically directed Mr Hassan to provide such evidence in two hearing invitation letters. The Tribunal noted that the only evidence of enrolment was that provided by Mr Hassan to the department in support of his student visa application. It stated that according to the confirmation of enrolment number he provided, Mr Hassan was enrolled in a graduate diploma of information technology with a course end date of 30 July 2014. It added that at the date of its decision, the confirmation of enrolment number had, however, been cancelled on 25 October 2013, and Mr Hassan had not provided any evidence of subsequent enrolment. 11 Accordingly, the Tribunal found that there was no evidence before it that Mr Hassan was enrolled or had a current offer of enrolment in an applicable course of study. 12 It also noted that Mr Hassan had not provided any evidence of financial capacity or overseas student health insurance, despite being specifically directed to provide such evidence in both hearing letters. 13 In the circumstances, the Tribunal found that the criteria for the grant of a subclass 573 were not met and it affirmed the delegate's decision.

judicial review in the federal circuit court 14 In Mr Hassan's application for judicial review, in the Court below, filed on 4 June 2014, he raised the following grounds of review: (1) The delegate to the Minister (DIBP) failed to understand that I am a genuine applicant for stay as a student visa holder. (2) The delegate to the Minister failed to understand that I have the adequate arrangements in Australia for health insurance during the period of my intended stay in Australia. (3) The delegate to the Minister failed to understand that I have the financial capacity to continue my study in Australia. 15 The Federal Circuit Court explained to Mr Hassan at a directions hearing on 25 June 2014 that the Court had no power to interfere with the Tribunal's decision, unless it was satisfied that the decision was affected by a jurisdictional error. The primary judge also explained to Mr Hassan that his application could be dismissed if it did not raise an arguable case for relief and he could face an adverse costs order. Mr Hassan confirmed that he still wished to press his application for judicial review and he was given leave to file and serve an amended application, further evidence and submissions. 16 The Minister brought an application for dismissal of Mr Hassan's claim, on the basis that he did not raise an arguable case for the relief claimed, pursuant to R 44.12 of the Federal Circuit Court Rules. 17 At the hearing of the Minister's application, Mr Hassan referred to an affidavit filed on 30 June 2014, which annexed a statutory declaration seeking an adjournment of two weeks to enable him to provide evidence of financial documents which he had not provided to the Tribunal. The Minister objected to this evidence on the ground of relevance, but it was admitted into evidence in support of his application for an adjournment. 18 The primary judge refused to grant an adjournment, finding that any adjournment would be of no utility, because the evidence referred to was not capable of establishing jurisdictional error on the part of the Tribunal. 19 In respect of the dismissal application, her Honour noted that Mr Hassan did not allege that the Tribunal fell into error by proceeding to make a decision without allowing him to appear. The primary judge found that there was nothing to suggest that the Tribunal's findings and conclusions were not open to it on the evidence and material before it and for the reasons it gave. While the primary judge made no final finding as to whether the Tribunal's decision was affected by jurisdictional error, her Honour stated that there was no jurisdictional error apparent on the face of the decision record and none had been identified by Mr Hassan. 20 Consequently, on 2 July 2014, the Court was not satisfied that Mr Hassan had raised an arguable claim for relief and the proceeding was dismissed with costs, pursuant to R 44.12 of the Federal Circuit Court Rules.

application for extension of time and leave to appeal 21 Mr Hassan now applies for an extension of time and leave to appeal against the Federal Circuit Court's decision, on the ground that the Federal Circuit Court made an error in finding that there was no jurisdictional error in the Tribunal's decision. His application was accompanied by a supporting affidavit filed 30 July 2014, explaining his delay in appealing, but he did not file any written submissions. Because the summary dismissal was an interlocutory decision, any appeal should have been filed by 26 July 2014. 22 In Mr Hassan's affidavit, he states that he was waiting for the decision letter from the Federal Circuit Court to include in his notice of appeal to the Federal Court. He says he did not receive this letter until 12 July 2014 and thought it wise not to wait for the decision letter and to lodge his notice of appeal in the Federal Court before the 28 day limit expired. Mr Hassan states that he intended to lodge his notice of appeal to the Federal Court on 23 July 2014 and at that point, came to know that he had been given a show cause notice and had 14 days to appeal, not 28 days. He says if he had known this earlier, he would have applied before the period of 14 days expired. 23 The Minister has made submissions going both to the extension and leave to appeal questions, dealing with both the question of delay and the merits of the application. 24 First, however, the Minister raises an issue not raised in the Federal Circuit Court and not raised by Mr Hassan in the present proceeding, concerning an apparent error in the Tribunal's decision. He does so as a model litigant. At [8] of the decision record, the Tribunal found: [A]s at the date of this decision, the [confirmation of enrolment] was cancelled on 25 October 2013 and the applicant has not provided evidence of any subsequent enrolment. 25 The Minister recognises that the information upon which this finding was based was never put to Mr Hassan in writing, as required by s 359A of the Migration Act 1958 (Cth). The Minister suggests that the Tribunal may have intended to put this information to Mr Hassan at the hearing, pursuant to s 359AA of the Act, but Mr Hassan did not attend the hearing. 26 The Minister accepts that this failure constitutes a potential breach of s 359A of the Act, and also potentially a breach of s 360 of the Act, as this was not an issue before the delegate. See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. 27 Nonetheless, the Minister submits that the Tribunal's decision was supported on an independent basis, in that, at [10] of its decision, the Tribunal also found that Mr Hassan had not provided any evidence of financial capacity or overseas student health insurance, which was the reason his application was refused by the delegate. The Tribunal noted that Mr Hassan had been directed to provide this evidence on two occasions prior to the scheduled hearing before it, but he had not done so. 28 The Minister submits that this independent basis is not affected by error and is sufficient to support the validity of the Tribunal's decision. See SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [62]-[68] (Kirby J); SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [230]-[234]; Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at [90]-[125]. 29 As to the present application, the Minister notes that a summary dismissal is an interlocutory judgment pursuant to R 44.12(2) of the Federal Circuit Court Rules and Mr Hassan requires the Court's leave to appeal the Federal Circuit Court's decision. The Minister says that the two primary considerations are: (1) whether in all the circumstances, the decision from which leave is sought is attended by sufficient doubt to warrant it being reconsidered; and (2) whether any substantial injustice would result if leave were refused. See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; SZSNN v Minister for Immigration and Border Protection [2013] FCA 1218; (2013) 217 FCR 171 at [36]. 30 In the Minister's submission, for the reasons given by the primary judge, an appeal would have no real prospects of success. The Minister notes that Mr Hassan failed to attend the Tribunal hearing or to provide the Tribunal with any of the evidence it needed (and requested) in respect of the relevant visa criteria. 31 The Minister submits that while one of the independent rationales for the Tribunal's decision was based on information which was not put to Mr Hassan, the other basis was not affected by error. The Minister contends that the Federal Circuit Court's decision is not attended by sufficient doubt to warrant it being reconsidered by this Court. 32 In respect of Mr Hassan's application for an extension of time, the Minister observes that Mr Hassan filed his application for leave to appeal on 30 July 2014, although he was required to do so by 26 July 2014, pursuant to R 35.13 of the Federal Court Rules 2011 (Cth). The Minister submits that although the Court has a wide discretion to extend time, a party must show some good reason to dispense with the requirement to file a leave application within time. See Hurd v Zomojo Pty Ltd [2013] FCA 581 at [10]; Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]. 33 The Minister says that the only explanation for the late filing of the application for leave is in Mr Hassan's affidavit of 30 July 2014. Mr Hassan states that he erroneously believed the Federal Circuit Court's decision was final, rather than an interlocutory judgment and if he had realised the true situation, he would have applied within the required 14 days. 34 In the Minister's submission, while Mr Hassan was not legally represented and was only a few days late in filing his application, his explanation is neither exceptional nor compelling. The Minister contends that given the lack of merit that would attend any appeal, there is no good reason for the Court to grant the extension of time. 35 The Minister submits that the application for an extension of time to seek leave to appeal should be dismissed with costs, and if an extension were granted, the resulting application for leave should be dismissed with costs. 36 On the hearing of the appeal, Mr Hassan confirmed the extension of time is sought because of his belief that he had 28 days to seek leave to appeal. He also asked for time to file the information that he did not file in the Tribunal in support of his review application. It is, however, not open to Mr Hassan to lodge such materials in this Court as they concern the factual merits of his case and should have been filed in the Tribunal. 37 The Court generally accepts the submissions made on behalf of the Minister, although it would in the circumstances extend the time to seek leave to appeal. 38 So far as the leave to appeal application is concerned, it is important to give attention to the merits of the case and whether the decision in relation to which leave to appeal is sought is attended by sufficient doubt to warrant it being reconsidered and whether any substantial injustice would result if leave were refused. 39 In this case, even though the Tribunal, under the Act, arguably should have put to Mr Hassan certain enrolment information it held - that the earlier confirmation of enrolment had been cancelled on 25 October 2013 - before it made its decision, the Tribunal also proceeded on the express basis that Mr Hassan had not provided any evidence of financial capacity or overseas student health insurance, despite being specifically directed to provide such evidence in both hearing letters that had been sent to him. That is a relevant and independent ground upon which the Tribunal's decision rests. 40 For this reason, in my view, the decision made by the Tribunal, as the primary judge found, was not affected by any error as to jurisdiction and the decision of her Honour that, as a result, Mr Hassan's judicial review application did not raise an arguable claim is not attended with sufficient doubt to warrant it being reconsidered. No substantial injustice will result if leave to appeal or any extension of time to appeal is not granted. 41 In these circumstances, the application for extension of time and leave to appeal from the judgment of the Federal Circuit Court should be dismissed with costs.

conclusion and orders 42 The Court orders: (1) The application for extension of time is granted but leave to appeal in this proceeding is refused. (2) The applicant pay the costs of the first respondent on the application, to be taxed if not agreed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.