Kashif v Minister for Immigration and Border Protection

Application for an extension of time and leave to appeal 8 Ms Kashif requires leave to appeal because the decision of the primary judge was an interlocutory decision and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal should not be brought from an interlocutory judgment unless the Court or a Judge gives leave. Ms Kashif also requires an extension of time because she filed her application for leave to appeal late and beyond the time permitted by r 35.13 of the Federal Court Rules 2011 (Cth).

Adjournment application 9 On the hearing of her application for an extension of time, Ms Kashif pressed for an adjournment of the hearing. I declined that application for the following reasons. 10 The hearing of Ms Kashif's application for an extension of time was initially listed for 10 September 2019. On 4 September 2019, Ms Kashif contacted both the Minister and the Court and sought an adjournment. She was advised by the Court that she would need to make an adjournment application accompanied by an affidavit. She did not do that but nevertheless provided a letter from her treating doctor which stated that she was not fit to attend Court. In circumstances where the Minister neither opposed or consented to the adjournment sought, the matter was adjourned to 23 September 2019. The Court communicated with the parties informing them that any further adjournment request would not be granted unless it was supported by up to date medical evidence and an affidavit. On 15 September 2019, Ms Kashif emailed my Chambers attaching an interlocutory application requesting an adjournment. Also provided was a medical certificate from her general practitioner. On 16 September 2019 the Court requested that Ms Kashif provide an affidavit from her doctor deposing as to why she is unable to attend. On 17 September 2019, Ms Kashif provided an affidavit made by her (not by her treating doctor). The affidavit included a letter from her treating doctor which stated that Ms Kashif was suffering from Major Depressive Disorder and that she was not fit for any court hearing on 23 September 2019. The treating doctor's letter noted that the court proceedings seem to be the trigger for Ms Kashif's depression. Again, the Minister neither consented or opposed the further request for an adjournment. Orders were made on 20 September 2019 adjourning the hearing to 4 December 2019. By order 3 of those orders, the Court ordered that if the applicant sought an adjournment or a vacation of the hearing fixed for 4 December 2019 by reason of her medical condition, the applicant must on or before 19 November 2019, file and serve an application for the hearing listed for 4 December 2019 to be vacated, supported by an affidavit made by her treating medical practitioner setting out the nature of the medical condition in question, the reason why vacating the hearing is necessary and the date by which, in the medical practitioner's opinion, Ms Kashif will be fit to press her application. 11 On 18 November 2019, Ms Kashif emailed the Court an interlocutory application requesting an adjournment and a medical letter from her treating doctor. On 20 November 2019, Ms Kashif was asked to file an affidavit of her medical practitioner in accordance with the orders made on 20 September 2019. An extension to 2 December 2019 was granted for the filing of that affidavit. Ms Kashif was informed that if no adjournment was granted, including because no application was made in accordance with the orders made on 20 September 2019, the hearing of her application for an extension of time would take place on 4 December 2019 and that her proceeding may be dismissed if she failed to attend. 12 On 3 December 2019 the Court wrote to Ms Kashif to confirm that the hearing would take place on 4 December 2019. The Court informed her that if she wished to appear by telephone she could do so. Ms Kashif responded stating that she would send documents that evening. A further email was sent by Ms Kashif on the eve of the hearing which attached pictures of two documents. The first was an interlocutory application requesting a postponement of the hearing. The second was a document in the form of an affidavit made by Ms Kashif which had no content. The affidavit was neither sworn or affirmed. At the foot of its second page the document contains a handwritten notation purportedly made by Ms Kashif's treating doctor. The notation certifies that Ms Kashif has been suffering from Major Depressive Disorder. It sets out her symptoms, states the trigger for her major depression seems to be the "ongoing court case" and concludes by saying that it is expected that she would be fit for her court case in 6-8 months. On the following morning, and prior to the hearing held on 4 December 2019, Ms Kashif was again advised by the Court that the scheduled hearing would take place and that she would have an opportunity to pursue her adjournment application during the hearing. 13 At the hearing Ms Kashif appeared by telephone, unrepresented but assisted by an interpreter. When the hearing commenced, Ms Kashif confirmed that she sought an adjournment. She stated that the document provided by email the previous evening was intended to be an affidavit from her treating doctor. She said she did not appreciate that the statement made by her doctor needed to be either sworn or affirmed. 14 When asked the period for the adjournment sought, Ms Kashif indicated that she needed 4 to 5 months. 15 The Minister opposed the application for an adjournment on the basis that there would be no utility or purpose in the grant of an adjournment given that the application had no prospect of success. 16 Ms Kashif made submissions in supported of her adjournment application. Those submissions were directed to the merit of her substantive application. In summary, she contended that she had not been in a good mental state when she had applied for the visa. She said that she had not done anything intentionally wrong. She did not know about the requirement that she provide an AFP check. She complained that she should have been told of that requirement when she made her application to the Department. When pressed as to what if any error she contended was made by the Tribunal or the primary judge, she said that neither the primary judge nor the Tribunal understood her position and contended that they should have given her time to apply for the AFP check. She further stated that her application for a visa should not have been accepted because she should have been asked by the Department to provide the police check as part of her application before that application was accepted and dealt with. 17 I rejected Ms Kashif's application for an adjournment principally because I was of the view that there was no utility in, or useful purpose that might be served by, the grant of the adjournment. 18 Ms Kashif had not provided, as she had been requested to do, an affidavit from her treating doctor in relation to her medical condition. The provision of a sworn statement from her treating doctor, with the capacity for the Minister to have cross-examined the doctor if that was thought appropriate, would have provided a more appropriate foundation upon which the Court could have been satisfied as to the nature of Ms Kashif's illness and the extent to which the illness justified the adjourned period sought by her. 19 However, putting aside the absence of that foundation, the primary basis upon which the adjournment was refused was that, bearing in mind the nature of the challenge which Ms Kashif faced in succeeding on her substantive application, I was not persuaded that the grant of an adjournment would be of any utility to her prospect of success. In coming to that view, I took into account my assessment that there was no apparent merit to the substantive application and that there was no arguable basis for thinking that by reason of Ms Kashif being in good health, she would have the capacity to improve her prospects of success. In the absence of any utility to Ms Kashif, and in circumstances where, by reason of an adjournment additional costs would be incurred by the Minister and additional resources of the Court would be expended, it seemed to me that despite having some sympathy for Ms Kashif's predicament, there was no proper basis for the exercise of my discretion to grant an adjournment. 20 At the hearing, the Minister relied on an outline of submissions previously filed. Ms Kashif relied on the contentions previously made by her and had no substantive response to the submissions of the Minister. 21 Ms Kashif's draft Notice of Appeal contained three grounds of appeal as follows: 1. That the Court below erred by failing to find that the Administrative Appeals Tribunal (Tribunal) failed to take into account relevant evidence provided by the Appellant; 2. That the Court below erred by failing to find that the Tribunal took into account irrelevant considerations in reaching its decision; 3. That the Court below erred by failing to find that the Tribunal erred in interpreting the law. None of those grounds were particularised. Nor did Ms Kashif make any submissions directed at those grounds. 22 In considering whether leave to appeal should be granted, I need to be persuaded that there is sufficient doubt as to the correctness of the judgment of the primary judge and that, supposing that decision to be wrong, substantial injustice would be suffered to Ms Kashif if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. Whether an extension of time should be granted depends on a number of considerations, namely: (i) whether Ms Kashif has an acceptable explanation for the lateness of her application; (ii) whether there is any prejudice to the Minister; and (iii) whether Ms Kashif has a reasonable prospect of success in relation to her proposed appeal. 23 Ms Kashif has given an explanation as to why her application was late. I will proceed on the basis that that explanation is acceptable and also on the basis that there is no prejudice to the Minister. It is convenient then that I consider whether Ms Kashif has any reasonable prospect of success in relation to her proposed appeal together with the question that needs to be answered in her application for leave to appeal, being whether there is sufficient doubt as to the correctness of the judgment of the primary judge. 24 In my view, consistently with the submission made by the Minister, the language of cl 485.213 of Sch 2 of the Regulations makes it plain that there are two temporal elements that needed to be satisfied by Ms Kashif on the making of her application for the visa. First, there needed to be evidence of Ms Kashif having applied for an AFP check in the 12 months immediately preceding the date of the lodgement of the application and second, that evidence needed to have "accompanied" the application for the visa. The same conclusion was arrived at by Wigney J in his Honour's consideration of the terms of cl 485.213 in Mir v Minister for Immigration and Border Protection [2018] FCA 697 at [46]. The Tribunal took the same view as did the primary judge. Ms Kashif's third ground of appeal that the primary judge failed to find that the Tribunal had erred in interpreting the law, has no reasonable prospect of success and does not warrant the grant of an extension of time. There is no doubt as to the correctness of the primary judge's view as to the requirements of cl 485.213. 25 Ms Kashif's first and second proposed grounds of appeal also have no reasonable prospect of success to warrant the grant of an extension of time nor do those grounds raise any doubt as to the correctness of the judgment of the primary judge. The relevant evidence that ground 1 asserts the Tribunal failed to take into account and the irrelevant considerations ground 2 asserts the Tribunal took into account in reaching its decision, are not specified. Without those matters being particularised, it is not possible to understand the nature of Ms Kashif's challenge to the decision of the primary judge. In any event, there is nothing apparent from the evidence before the Tribunal that it may be said the Tribunal should have taken account of. Nor is there anything apparent from the decision of the Tribunal to suggest that an irrelevant consideration was taken into account. The Tribunal correctly identified the two requirements of cl 485.213 set out above at [24]. The Tribunal took into account evidence relevant to those considerations, being the uncontested fact that at the time Ms Kashif lodged her application for a visa she had not applied for an AFP check in the 12 months preceding the making of that application and that her visa application was not accompanied by evidence that she had applied for an AFP check in the relevant period. Each of those considerations were relevant considerations and it is not apparent that any account was taken of a consideration that may be regarded as irrelevant. 26 Turning then to the oral submissions made by Ms Kashif in the hearing, none of the matters there raised were relevant considerations in the task which the Tribunal was required to perform. There was no error in either the primary judge or the Tribunal failing to understand Ms Kashif's position. Nor did the Tribunal or the primary judge have any capacity to give Ms Kashif time to apply for an AFP check. 27 What was said by Ms Kashif was really in the nature of a complaint about the law, rather than a complaint about the way in which the law was applied by the Tribunal or by the primary judge. Ms Kashif's complaint about the law, or specifically the strict requirements of cl 485.213 is not without justification. So much was recognised by the Tribunal in acknowledging Ms Kashif's dismay that "such a seemingly trivial failure could derail her visa application". The Tribunal further noted the fact that the Department had allowed Ms Kashif to make an online application without clearly flagging to her that it would fail in the absence of it being accompanied by an AFP check. In Mir, Wigney J also recognised that the relevant visa criteria had the capacity to operate harshly and arbitrarily. I have considerable sympathy for Ms Kashif's predicament and share in the view that what has happened to her demonstrates a harsh and unfortunate consequence of the relevant visa criteria. I say that primarily because what appears to have defeated Ms Kashif is not her inability to obtain a suitable AFP check, but simply the timing of the presentation of that material to the Department. 28 Those observations do not assist Ms Kashif. As the Tribunal said, the Tribunal must apply cl 485.213 as it stands. The criteria provided no discretion for the Tribunal to overlook or waive its requirements. 29 Ms Kashif's application for an extension of time and leave to appeal must be dismissed. Ms Kashif has not identified any reason why, as the unsuccessful party she should not pay the Minister's costs of the application and no reason why that ordinary rule should not be applied is apparent to me. Accordingly, Ms Kashif should also be ordered to pay the Minister's costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.