Hussain v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT (Delivered Ex Tempore and Revised) 1 This is an application for an extension of time in which to bring an appeal from a decision of the Federal Circuit Court. Orders were made by the Federal Circuit Court on 6 August 2013. The proceeding before the Federal Circuit Court concerned the review of a decision of the Migration Review Tribunal made on 25 February 2013 in which the Tribunal affirmed a decision made on 1 November 2012 by a delegate of the Minister to refuse to grant a Student (Temporary) (Class TU) visa to the applicant. 2 Rule 36.03 of the Federal Court Rules 2011 (Cth) requires a Notice of Appeal to be filed and served within 21 days after the date when the orders or judgment were pronounced. Accordingly, a Notice of Appeal in this matter should have been filed by 27 August 2013. The application being heard by the Court today for an extension of time was in fact filed on 9 September 2013. The applicant is therefore 13 days out of time. 3 In considering whether to extend the time in which a Notice of Appeal may be filed the Court takes into account three principal matters: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted, and the prospects of success of the appeal if an extension of time were to be granted. These considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and have been applied consistently in this Court. 4 For the reasons I gave in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203, while delay in lodging an appeal may be explicable by reason of a party's personal circumstances, whether a proposed appeal has any realistic prospects of success is a critical consideration. 5 Now I turn to the matters in this case and, first, any explanation for the delay. 6 The decision of Judge Burchardt in the Federal Circuit Court was given ex tempore on 6 August 2013. The applicant agrees he had been notified of the Court hearing but did not appear at 9.30am. The applicant had also not appeared at the Tribunal hearing scheduled in relation to his review. 7 There is evidence before the Court on behalf of the applicant that he did attend the Federal Circuit Court later in the morning, and the judge explained to him that his application had been dismissed. Contrary to what is said by the applicant in his letter to this Court, dated 9 September 2013, the learned Federal Circuit Court judge did not dismiss the applicant's appeal because the applicant did not appear. Rather, the reasons record the Court's consideration of the substance of the application for judicial review. The applicant's application was dismissed because the Court rejected the submission that the decision of the Tribunal was affected by jurisdictional error. 8 The applicant did not file an appeal from the orders of the Federal Circuit Court within time. The explanation given by the applicant appears to be that, although he was told on 6 August 2013 that his application was dismissed, he was also told he would receive a copy of the decision in the mail. The applicant says, and I accept, that he received a copy of the Court's orders and reasons in the mail on 9 September 2013. I also accept that was the date on which he filed this application in the Court. 9 The applicant's circumstances include that he is unrepresented, and although he has some proficiency in written and spoken English, he clearly has no experience of legal matters. Apparently he has not received any advice from a lawyer or a migration agent. These circumstances may explain the delay in compliance with the time limits in the Rules. I am prepared to take these matters into account in favour of the applicant, especially when the period of delay is small. I am satisfied the applicant acted promptly once he received the written reasons and Court orders in the mail. 10 It is not unreasonable, in my opinion, for any party, represented or not, to wait for a final written copy of the Court's reasons and orders before deciding whether to appeal and before filing documents. In those circumstances I would consider granting an extension of time to the applicant if I was satisfied the appeal had some realistic prospects of success. The difficulty for the applicant is that his appeal has no prospects of success. Largely that is because of the nature of the criterion the Tribunal found he did not meet. Correctly, the Tribunal examined whether the applicant met the criteria in cl 572.211(3) of the Migration Regulations 1994 (Cth). 11 The following passages from the respondent's submissions set out the background to the applicant's application to the Tribunal. The applicant is a male national of India who, on 23 October 2012, applied for a Student (Temporary) (Class TU), subclass 572 visa (visa application): AB 1-30. The applicant attached to his visa application, his previously held substantive visa, being a Student (Class TU) visa, which was valid from 12 January 2012 to 21 October 2012. On 1 November 2012, a delegate of the first respondent refused to grant the visa application: AB 36-44. In this decision, the delegate determined that the applicant was unable to satisfy the requirements in cl. 572.211 of Schedule 2 of the Migration Regulations 1994 (Regulations). This was for the reason that the applicant was not holding a substantive visa at the time of lodging his visa application and he had previously been granted a visa on the basis of satisfying Schedule 3 criteria on 12 January 2012. On 19 November 2012, the applicant applied to the Migration Review Tribunal (Tribunal) for a review of the delegate's decision: AB 53-74. The Tribunal affirmed the delegate's decision by a decision dated 25 February 2013: AB 98-102. 12 As the Tribunal recorded, the delegate refused the applicant a visa for the same reason that the Tribunal ultimately did, namely a failure to meet cl 572.211(3)(d), because the applicant had previously been granted a visa relying on Sch 3 of the Regulations. In other words, through the delegate's decision, the applicant was on notice of the problem he would face in the Tribunal: that he had previously been granted a visa in circumstances that meant he was not eligible for the kind of visa for which he was now applying. 13 It appears that the applicant had not read the delegate's decision, he had not read the Tribunal decision and, for that matter, he had not read the decision of Judge Burchardt in the Federal Circuit Court. Considered in conjunction with the fact that he has not sought advice from a migration agent, it is little wonder that he does not understand why his visa application has been refused. Nevertheless, the non-satisfaction of the visa criterion was not something that the applicant could cure or fix; it was an objective historical fact. The applicant himself had supplied the evidence on which the finding was based, because he has a supplied a copy of his previous visa with his current visa application. 14 The Minister made the following two submissions in his written submissions on this application: The Tribunal determined that the applicant was unable to satisfy cl. 572.211 having regard to information that the applicant had provided to the Tribunal in the form of the applicant's last substantive visa and a copy of the delegate's decision. The combination of this information supplied the basis for the Tribunal's finding that the applicant did not satisfy criterion 3005 (as he had previously been granted a visa on that basis) and could not therefore meet the requirements of cl. 572.211(3)(d). As the information referred to above had been provided by the applicant either for the purpose of the application for review or in connection with the process that led to the decision that was under review, it was exempt from the statutory notice provisions: ss 359A(4)(b) and (ba) of the Act. 15 Those submissions should be accepted. Neither on the basis of the law it applied nor the process it followed was the Tribunal's decision affected by jurisdictional error. The fact that the applicant did not attend the Tribunal hearing was unfortunate, and it has no doubt contributed to the applicant's sense that he has not been dealt with fairly, from his perspective. In the documents filed in support of this application, the applicant complained that the Tribunal proceeded to make a decision in his absence. The Tribunal had a discretion to proceed to make a decision on review when an applicant does not appear, pursuant to s 362B of the Migration Act 1958 (Cth). So far as the law is concerned, however, taking into account the specific provisions of the Migration Act, their content and purpose, there has been no denial of procedural fairness to the applicant. 16 Especially in circumstances where there was an objective non-satisfaction of a visa criterion based on material provided by the applicant, the Tribunal did not act unlawfully in exercising its discretion as it did. There is no vitiating unreasonableness of the kind recently discussed by the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. 17 For those reasons the application for an extension of time is refused. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.