Khan v Minister for Immigration and Citizenship

Federal Court of Australia|2009-05-07|Before: Besanko J

REASONS FOR JUDGMENT 1 This is an application by Mr Muhammad Zaheer Khan for an extension of time within which to file and serve a notice of appeal. The application is brought under O 52 r 15(2) of the Federal Court Rules. The first respondent, the Minister for Immigration and Citizenship, opposes the application. The second respondent, the Migration Review Tribunal, has filed a notice of appearance wherein it submits to any order of the Court, save as to costs.

Facts 2 On 25 January 2008, the applicant applied for a Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) ("the Act"). On 30 January 2008, a delegate of the first respondent refused the application. The applicant was advised of the refusal by letter dated that day. The delegate found that the applicant's application was to be assessed by reference to the criteria for the grant of a subclass 572 visa. The applicant's application did not satisfy cl 572.211 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations") which required that the application be made within 28 days after the day when the last substantive visa held by the applicant ceased to be in effect. The delegate found that the applicant's last substantive visa ceased to be in effect on 24 October 2007 and that the application for a Student (Temporary) (Class TU) visa was lodged on 25 January 2008. It followed that the application was made more than 28 days since the last substantive visa ceased to be in effect. 3 The applicant made an application for review of the decision to the Migration Review Tribunal ("the Tribunal"). The application for review is dated 5 February 2008 and it authorised payment of the fee which must accompany the application from a credit card account identified in the application. 4 The Tribunal found that the application for review was in fact made on 21 February 2008. The prescribed fee to accompany the application was $1400: reg 4.13(1) of theRegulations. 5 The Tribunal made the following findings: "On 21 February 2008, a Tribunal officer attempted to process payment of the fee using the credit card details given by the applicant. However the transaction was declined. The officer contacted the applicant on 21 February 2008 to advise him that the credit card payment could not be processed and that the review application would not be valid without payment. The applicant advised that he was awaiting some funds and that the money would be deposited into his account later that day or the next morning. The Tribunal officer attempted to process the payment again that afternoon but the payment was declined. On the morning of 22 February 2008 a Tribunal officer attempted to process the payment, but again the transaction was declined. A further attempt was made on 26 February 2008 but this transaction was also declined.

The Tribunal officer attempted contacting the applicant by telephone on 26 February 2008 but was unable to get in contact with the applicant. The last day within the prescribed period within which to pay the fee was 29 February 2008 but the fee was not paid by that date, or at any time since then." 6 Section 347(1) of the Act provides that an application for review of an MRT-reviewable decision must be made in the approved form, be given to the Tribunal within the prescribed period, and be accompanied by the prescribed fee (if any). 7 The Tribunal wrote to the applicant asking him to address or comment on the effect of his non-payment of the prescribed fee. In response, the applicant said that there were only two factors preventing him from making a valid application and they were: "1. Financial hardship in the beginning but still lodged the application to catch up on due date.

Had funds in account especially for the case review later on but MRT didn't charge as the credit card details were provided." 8 The Tribunal concluded that, as the prescribed application fee had not been paid, or waived under reg 4.13(4), the application for review was not a valid application, and the Tribunal had no jurisdiction in the matter. The Tribunal's decision was signed on 9 April 2008 and sent to the applicant with a letter dated 10 April 2008. 9 The applicant considered that the Tribunal had committed a jurisdictional error, and on 21 July 2008, he instituted a proceeding in the Federal Magistrates Court, seeking constitutional writs. In the application, the applicant claimed that he received notice of the Tribunal's decision on 14 April 2008. 10 The first respondent sought an order from the Federal Magistrates Court that the applicant's application be dismissed on the following grounds (or any one of them): 1. The applicant did not make his application to the Federal Magistrates Court within the period of time prescribed by s 477 of the Act. 2. The applicant unreasonably delayed in bringing his application, and the application should be dismissed in the exercise of the Court's discretion. 3. The application for constitutional writs was not arguable because the application for review accompanied by the prescribed fee was not made to the Tribunal within the prescribed period. The first respondent submitted that the Tribunal was clearly right in holding that it did not have jurisdiction. 4. The granting of constitutional writs would be futile in the circumstances because, had the Tribunal addressed the merits of the application for review, it was inevitable that it would have affirmed the delegate's decision. That followed from the fact that it was clear that the applicant did not satisfy the requirements of cl 572.211 and, in particular, subcl (3)(c). 11 The federal magistrate rejected the first and second grounds, but upheld the third and fourth grounds. 12 The applicant's application for an extension of time was listed for hearing before me on 4 May 2009 at 2.15 pm. The applicant did not appear at that time. The first respondent asked me to proceed to hear the application in the applicant's absence. The National Appeals Registrar of this Court, through a staff member of the Court, advised the applicant of the date, time and place of hearing of the application by letter dated 17 March 2009. That letter was sent to the applicant's address as it appeared on his application for leave to file and serve a notice of appeal. In addition, the first respondent wrote to the applicant on two occasions at the said address, the first being on 20 February 2009 and the second on 19 March 2009. Those letters were put in evidence before me. In the letter dated 19 March 2009, the first respondent advised the applicant of the date, place and time of the hearing of his application. The applicant was given adequate notice of the hearing and has made no attempt to contact the Court to explain his absence. In those circumstances, it seemed to me appropriate to proceed to hear the application, even though the applicant did not appear. 13 The principles which are relevant to the determination of an application for an extension of time within which to file and serve a notice of appeal are well established: Jess v Scott (1986) 12 FCR 187 at 195. The matters which must be considered are the length of the delay, the explanation for the delay, the prejudice to the respondent if the application is granted, the prejudice to the applicant if the application is not granted, and, to a point, the merits of the proposed appeal. The authorities establish that the shorter the delay, the more likely it is that an extension of time will be granted, that the mere absence of prejudice to the respondent will not lead to the granting of an extension of time, and that, although the merits of the proposed appeal may be considered, it is to be remembered that the application is not the hearing of the appeal itself. 14 The length of the delay in this case is not substantial; it is in the order of one week. The respondent's only statement as to the explanation for the delay is that he needed extra time, as he was preparing the application himself without any professional help. That is not a full and satisfactory explanation for the delay. 15 The respondent candidly concedes that he will suffer no prejudice if the application is granted. As far as the applicant is concerned, and putting to one side any conclusions about the merits of the proposed appeal, the applicant will be prejudiced if the application is refused in that he will lose the chance of successfully appealing against the orders made by the Federal Magistrates Court. 16 In my opinion, the decisive consideration in the determination of this application is that I do not think that the proposed appeal has any realistic prospects of success. 17 In a case such as the present, the Tribunal had jurisdiction to review the delegate's decision only if the application for review was in the approved form, was given to the Tribunal within the prescribed period, and was accompanied by the prescribed fee. I would take a similar approach to the construction of s 347 of the Act as Lehane J took to the then s 339 of the Act in Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 102-103. Before the Federal Magistrates Court, the applicant argued that there were in fact funds in his credit card account on 29 February 2008 and that the Tribunal should have accessed those funds on that day. There was some evidence put before the Federal Magistrates Court by the applicant to establish that there were funds in the account. It may be doubted whether the evidence was sufficient to establish that fact, but the federal magistrate did not make a finding of fact one way or the other; rather, he decided the point against the applicant on the following ground: "It is not for the holder of the dishonoured cheque or the rejected credit card to make attempts to obtain payment of an application fee when it is the applicant's responsibility to ensure that the fee is paid. The applicant seeks to effect a reversal of responsibilities which is not justified by the wording of the Act which requires that the review application 'be accompanied by the prescribed fee (if any)'. Those words mean that the payment must be tendered and tendered effectively. A payment does not accompany an application if the purported payment is ineffective. Further, if payment by credit card is ineffective it is for the applicant to remedy the deficiency, not the Tribunal. The applicant has to make the payment; the Tribunal is not obliged to pursue it." 18 I think that reasoning is correct, and that conclusion means that, even if an extension of time is granted, the federal magistrate's conclusion that the application should be dismissed would be upheld. 19 The federal magistrates' conclusion would be upheld on another ground and that is that the grant of constitutional writs would be futile. It seems clear beyond argument that the applicant did not satisfy the criteria which he was required to satisfy at the time of application and could not do so. In those circumstances, had the Tribunal considered the merits of the application for review, it would have had no alternative but to affirm the decision of the delegate. 20 The period of delay is not substantial and the first respondent will suffer no prejudice if an extension of time is granted. However, those matters are outweighed by the fact the explanation for the delay is not a full and satisfactory one and, more importantly, the proposed appeal has no realistic prospects of success. The application for an extension of time is refused. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate: Dated: 7 May 2009 The Applicant did not appear

Solicitor for the First and Second Respondents: Mr A Markus of the Australian Government Solicitor

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