Khadri v Minister for Immigration and Border Protection and Migration Review Tribunal

REASONS FOR JUDGMENT 1 This is an application to extend time to file an appeal from a decision of the Federal Circuit Court. The background to the application can be shortly stated. 2 Mr Khandri (the Applicant), an Indian citizen, lodged an application for a Student (Temporary) (Class TU) visa on 25 February 2011. The application was refused by a delegate of the Minister on 12 July 2011, on the basis that that the Applicant had failed to satisfy Regulation 572.235 of the Migration Regulations 1994 (the Regulations) in that he had not substantially complied with the conditions of his previous student visa. The non-compliance arose from a gap of four months in which the Applicant did not undertake any study. The Applicant lodged an application for review with the Migration Review Tribunal (the Tribunal) on 14 July 2011. 3 The Tribunal conducted a hearing on 26 March 2013 during which the Applicant conceded that he was not currently studying, did not have a current offer of enrolment in a registered course and had not undertaken any study since March 2010. The Tribunal affirmed the decision not to grant the Applicant a Student (Temporary) (Class TU) visa. The essence of the Tribunal's decision is set out at paragraphs [21]-[23] of the Statement of Decision and Reasons (The Decision) dated 27 March 2013: 21. The applicant has applied for a Student (Temporary) (Class TU) visa for the purpose of study in Australia. There is no evidence before the Tribunal that the applicant is currently enrolled in or the subject of a current offer of enrolment in any course of study. The Tribunal is therefore not satisfied that the applicant is enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course and of a type specified for any of subclasses 570, 571, 572, 573, 574 or 575. On that basis, the Tribunal finds that the applicant does not satisfy cl.570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of Schedule 2 to the Regulations. 22. Additionally, there is no evidence before the Tribunal which suggests that the applicant meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) the remaining subclasses of the Student (Temporary) (class TU) visa. 23. As the Tribunal has found the applicant does not meet an essential requirement of Schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and as no evidence has been provided on which the Tribunal could be satisfied that the applicant meets the criteria for the remaining Student (Temporary) (Class TU) visa subclasses, the decision under review must be affirmed. 4 On 29 April 2013 the Applicant filed an application with the Federal Circuit Court (the FCC) for judicial review of the Tribunal's decision. The First Respondent applied to have the matter dismissed on the basis that the Applicant was simply inviting the Court to undertake a merits review of the Tribunal's decision; had not provided any particulars or legal grounds of review; nor had the Applicant established any jurisdictional error or arguable case for relief in accordance with r 44.12 of the Federal Circuit Court Rules 2001 (Cth). On 2 July 2013 the Applicant filed a Notice of Discontinuance in relation to the application for review field on 29 April 2013. 5 On 26 July 2013 the Applicant filed a further application in the proceeding seeking an order 'that the Tribunal or Minister's decision be quashed'. This application was accompanied by an affidavit dated 26 July 2013 in which the Applicant stated: ... before my first hearing date I was confused by some bad advices from the agents so I discontinued my case but now I want to reinstate it and want to be a part of Australia and become a good student and a resident if I successfully go through my case. 6 The further application was heard by Judge Hartnett on 15 October 2013. The Applicant appeared in person at the hearing and made submissions. At the conclusion of the hearing his Honour dismissed the application and ordered the Applicant to pay the First Respondent's costs.1 I will return to his Honour's judgment shortly. 7 On 15 November 2013 the Applicant filed an Application for an Extension of Time to file a Notice of Appeal from the decision of the Federal Circuit Court. The Applicant filed an affidavit in support of that Application and a draft Notice of Appeal containing the following grounds of appeal: 1. I am not happy with the decision made by the Federal Circuit of Australia. 2. I am looking for justice at Federal Court of Australia. 3. All the fact that not look at. 8 A preliminary issue arises as to the proper characterisation of the Federal Circuit Court's decision. If the decision is regarded as final (as opposed to interlocutory) then leave to appeal is not required and any notice of appeal had to be filed within 21 days of the date on which the judgment was pronounced or the order made (r 36.03 of the Federal Court Rules 2011 (the Rules)). The judgment and order of the Federal Circuit Court were made on 15 October 2013 and hence the time within which the Applicant was able to file a Notice of Appeal, without extension, expired on 6 November 2013 (the 21 day period fell on Melbourne Cup day and so was extended to the next working day, see r 1.61(4) of the Rules). 9 If the decision is characterised as interlocutory in nature then leave to appeal is required (s.24(1A) of the Federal Court of Australia Act 1976) and the application for leave to appeal had to be filed within 14 days of the date on which judgment was pronounced or the order made (r 35.13 of the Rules). In determining the issue of leave to appeal the Court must be satisfied that the decision sought to be appealed is attended with sufficient doubt to warrant it being reconsidered on appeal and that substantial injustice would result if leave to appeal were refused (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399). 10 It is unnecessary for me to resolve the question of proper characterisation of the Federal Circuit Court's decision, if it was final the Applicant needs an extension of time, and if it was interlocutory, he needs both an extension of time and leave to appeal, and in either case the merits of the proposed appeal will be an important consideration. I will assume, in the Applicant's favour, that the decision is final in character. The first respondent did not oppose such a course. 11 The court has a very wide discretion to extend the time for filing a notice of appeal (r 35.05). Although such an order is made in the exercise of a very wide discretion casual disregard of the requirements of the Rules is inappropriate and some good reason should be shown to dispense with the requirements to file a Notice of Appeal within 21 days (see Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [23]). 12 In this case, the delay in filing the application is relatively short (9 days) and it is conceded that there is no prejudice to the first Respondent if the court were to grant an extension of time. As to the reason for the delay the Applicant submitted that he had been 'confused' as to the requirements associated with the filing of an appeal. As the Applicant is a litigant in person and has little understanding of the legal system I accept the reason given for the delay. In any event it is not a precondition to the grant of an extension of time that an acceptable explanation of the delay be provided (see Dix v Crimes Compensation Tribunal [1993] 1 VR 297 at 302) 13 Ultimately, the question turns on the merits of the appeal. Indeed, when the application is for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding in the appeal (see Burns v Grigg [1967] VR 871 at 872, and Gallo v Dawson (1980) 93 ALR 479 at 480-481 per McHughJ). In addressing that issue it is necessary to refer to the decision of the Federal Circuit Court. 14 In its' reasons for decision the Federal Circuit Court referred to the Applicant's previous application (filed on 29 April 2013) and observed that there were no grounds of review contained in the application and that the affidavit in support of the application referred to a Certificate IV course completed by the Applicant in March 2010. His Honour noted that the Applicant's completion of this course had been referred to in the Tribunal Decision and further that the Applicant had done no study in Australia since March 2010. His Honour then stated that the Tribunal had referred to the relevant law, the Applicant's claims and evidence provided to the Tribunal and had affirmed the decision under review on the basis that the Applicant had not produced a current certificate of enrolment or an offer of enrolment in a registered course of study. 15 The gravamen of his Honour's decision is at paragraphs [6]-[8]: 6. The Applicant himself filed a Notice of Discontinuance on 2 July 2013 ('Notice of Discontinuance') in respect of the earlier proceedings commenced on 29 April 2013. It was signed by the Applicant and dated 2 July 2013. It was a voluntarily filed notice of discontinuance of the proceedings. The proceedings before me this day arise out of the Application in a Case filed by the Applicant on 26 July 2013, after the Applicant had thought about the matter and felt hopeful of a positive outcome, as essentially submitted by him. Counsel for the First Respondent referred the Court to the decision in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, being a decision of Ryan J on appeal from this Court. In that decision, His Honour referred to the relevant provisions of the Federal Magistrates Court Rules 2001 (Cth) (as they then were) which empower the Court to set aside a notice of discontinuance in accordance with r 13.03 of the rules. He went on to say in paragraph 18 of those Reasons that: "Rarely, the discontinuance may involve an abuse of process. In those cases, the Court may accede to a request by a party affected by the abuse to have the discontinuance set aside..." 7. That is not the case here. The present Applicant has knowingly and voluntarily filed the Notice of Discontinuance of the earlier proceedings. He cannot assert that his own act should be set aside as an abuse of process. There is no evidence that such Notice of Discontinuance was procured by fraud or duress or that it was done without the Applicant's knowledge or consent. Any discretionary exercise of the Court's inherent power to prevent injustice, as referred to by Ryan J in paragraph 19 of his decision in SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, is not required to be exercised here on the facts of this case. The proceedings were earlier at an end. 8. The Applicant had, in any event, no reasonable prospects of success on that application. The bringing of this application is entirely unmeritorious. It will be dismissed with costs, as sought by counsel for the First Respondent, in the sum of $1000. 16 In my view, it was plainly open to his Honour to dismiss the application in the exercise of his discretion and he made no error in doing so. The Applicant had knowingly and voluntarily filed a Notice of Discontinuance of the judicial review proceedings. There was no evidence that the Notice of Discontinuance had been procured by fraud or duress or that it was done without the Applicant's knowledge or consent. In such circumstances, it was undoubtedly the correct course to reject the application to set aside the Notice of Discontinuance (see R v Moore [1957] 1 WLR 841 at 842 per Lord Goddard CJ; R v Preston [2004] SASC 77 at [12] per Duggan J; El-Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 742 at [21]-[24] per Branson J; and SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137 at [18] per Ryan J. 17 The Federal Circuit Court was also correct to conclude that the Applicant's application for judicial review of the Tribunal's decision had no reasonable prospects of success, given the Applicant's failure to articulate any grounds of review and the Tribunal's reliance on the Applicant's own admissions. 18 As the Applicant is self-represented I have reviewed the Tribunal's decision to determine if there is any reasonable basis for judicial review. There is not. The Tribunal correctly identified the Tribunal's task and the Applicant was given ample opportunity to address the issues before the Tribunal. On 3 January 2013, the Tribunal invited the Applicant to a hearing on 7 February 2013 to give evidence and present arguments relating to the issues arising in his case. In that letter, the Tribunal also invited the Applicant to provide a certificate of enrolment as required by cl 572.222 of Sch 2 to the Regulations, or evidence that he was enrolled in, or was the subject of a current offer of enrolment in a registered course as set out in cl 572.231 of Sch 2 to the Regulations. 19 On 4 February 2013, the Applicant requested the Tribunal to postpone the hearing as he was unable to attend due to health issues. The Tribunal agreed to his request for a postponement and rescheduled the hearing for 26 March 2013. In that letter, the Tribunal repeated its invitation to the Applicant to provide a certificate of enrolment or an offer of enrolment in a registered course. 20 On 26 March 2013, the Tribunal held a hearing in relation to the Applicant's application for a Student (Temporary) (Class TU) visa. The Applicant appeared at the hearing to give evidence and present arguments. During the hearing, the Applicant conceded that he was not currently studying and had not done any study since March 2010. 21 In its Decision the Tribunal correctly addressed the issues it had to decide, provided the Applicant with a reasonable opportunity to present his case, considered the evidence and ultimately affirmed the decision subject to review. Importantly, the Tribunal's Decision relied on the Applicant's own admissions that he had not been studying as the basis for its finding that the Applicant did not satisfy the requirements of the Regulations. The Decision of the Tribunal discloses no reasonable basis for contending that it made a jurisdictional error. 22 In support of his application for an extension of time the Applicant submitted that he was depressed and confused at the time of the Tribunal hearing and was unable to put all of the relevant information to the Tribunal regarding his father's illness. The Applicant also submitted that he had spent a lot of time in Australia and would like to stay and if he returned to India he would not be able to undertake any higher education. 23 The Applicant's submissions do not go to the issue of legal error. The submissions go to the merits of the Tribunal's decision in circumstances where he was given a reasonable opportunity to put his case and many of the arguments advanced in these proceedings were put to, and considered by, the Tribunal. The role of the court in the judicial review of Tribunal proceedings is to correct legal error, not embark on a review of the merits. 24 I am satisfied that an appeal against the decision of the Federal Circuit Court has no reasonable prospect of success. It follows that there will be no injustice visited upon the Applicant if the application to extend time were refused. 25 The application for an extension of time is refused. 26 The First Respondent has sought costs in the proceedings. As a general proposition, costs follow the event and a successful party is entitled to its costs unless special circumstances justify some other order. I am satisfied that the First Respondent is entitled to costs in the proceedings in circumstances where the Applicant's application has failed and the purported appeal clearly lacked merit. I note the Applicant's submission that if a costs order were made against him then he would need time to pay. That is a matter which can be dealt with between the parties, with recourse to the court if necessary. 27 For the above reasons the Applicant's application for an extension of time is dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ross.