Kalanje v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal. The decision of the Federal Magistrate was handed down on 31 August 2006. The application was made on 27 September 2006, six days beyond the time prescribed by O 52 r 15(1) of the Federal Court Rules. In an accompanying affidavit the applicant indicated that the reason for her non-compliance with the time limit was because she was under the impression she had 28 days to lodge the appeal. That misapprehension, as the respondent Minister concedes, is understandable enough and of itself provides an explanation for the application being out of time. That of itself though is not sufficient in the circumstances to justify as of course the extension sought. As is well known and well accepted, the merits of the substantial appeal are to be taken into account in considering whether an extension is to be granted. It is this hurdle that the applicant cannot surmount. 2 The applicant is a citizen of Malawi and first arrived in Australia on 9 February 2004 as the holder of a Student (Temporary) Class TU Visa valid until 31 December 2007. That visa was subject to Condition 8202 of Schedule 8 of the Migration Regulations which obliged the holder to meet certain requirements. That which is presently relevant is that the holder of the visa must be enrolled in a full-time course of study. Having completed a program at a college in December 2004, the applicant seemingly enrolled in a Bachelor's degree course at Flinders University. On 22 September 2005 Flinders University advised the respondent Minister that the applicant did not, and had not, commenced her Bachelor's degree. On 30 September 2005 a delegate of the Minister sent a written notice of intention to cancel the applicant's visa on the ground that she may have breached the condition of her visa as she had failed to maintain enrolment at a registered education provider. On 13 October 2005 the delegate after interviewing the applicant cancelled the visa. She lodged an application for review with the Migration Review Tribunal. The applicant accepted she was not enrolled in a registered course between 28 February 2005 and 13 October 2005. The Tribunal concluded that as she was not enrolled in a registered course during the relevant period she breached Condition 8202(2)(a). It went on to indicate that in such circumstances having regard to the combined effect of s 116(3) of the Migration Act 1958 (Cth)and reg 2.43(2)(b) of the Migration Regulations, it was mandatory for her visa to be cancelled unless the Minister was satisfied that non-compliance was "due to exceptional circumstances beyond the visa holder's control". The Tribunal was not so satisfied. It concluded the applicant did not make a genuine effort to locate any other source of funds; it was not satisfied she had actively pursued access to the $15,000 which had been refunded to her by Flinders University; she had been able to fund two overseas trips to South Africa in 2005; and she had conceded at the hearing she did not try hard enough to find the money. 3 On 29 May 2006 the applicant applied to the Federal Magistrates Court to set aside the Tribunal's decision. The grounds of that application did not assert any jurisdictional error on the part of the Tribunal. That application was dismissed. 4 The learned Magistrate noted that nothing had changed in the applicant's circumstances from the time of the hearing before the Tribunal. Even at the time of the hearing before his Honour the applicant was not able to demonstrate any real attempt had been made to retrieve the Flinders University fee refund which had been sent to Botswana, or to borrow monies from her partner. Having made this comment, the Magistrate accepted he could not engage in merits review in any event and that in the circumstances the Tribunal made no error let alone any error going to jurisdiction. 5 The notice of appeal filed with this application does not assert any error of law on the part of the Magistrate nor does it address any relevant claim or jurisdictional error on the part of the Tribunal. The projected appeal is wholly misconceived. All that it asserts is that the position has changed since the visa was cancelled because she now has come into possession of $15,000. Whether this is so or not is of course not to the point. It is not the function of this Court to engage at all in merits review. The jurisdiction of this Court is confined to determining whether the Federal Magistrate incorrectly determined that the Tribunal had not committed jurisdictional error. There clearly is no ground upon which it could possibly be asserted that such was the case. Given the material before it, any finding by the Tribunal that the circumstances with which it was dealing were exceptional and beyond the applicant's control would have bordered on the perverse. No reason at all was advanced to the Magistrate suggesting that a jurisdictional error had been committed. This appeal has no prospects of success. In consequence I refuse the application for extension of time in which to file and serve a notice of appeal. 6 I will order that the application be dismissed and that the applicant pay the first respondent's costs of the application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.