Khangura v Minister for Immigration and Border Protection

1 The applicant seeks an extension of time to file a notice of appeal from the judgment and orders of Judge Harland delivered on 23 June 2016. Any appeal from that decision was required by r 36.03 of the Federal Court Rules 2011 (Cth) to be filed within 21 days of the orders of the Federal Circuit Court, namely, on 14 July 2016. The applicant requires an extension of time under r 36.05 of the Rules for an appeal to be commenced because an application was not filed by 14 July 2016. 2 An application for extension of time within which to file an appeal requires consideration of the length of the delay, the explanation for the delay, the presence or absence of prejudice to the respondent, and the merits of a proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [4]. The length of the delay in this case was only four days and the Minister accepts that there is no material prejudice by that delay. The applicant's explanation for the delay was that the email he received from the Federal Circuit Court did not inform him about the number of days available to him in which to file an appeal. The applicant's affidavit goes on to say that he thought that he had 28 days or 35 days but that some time during the week before he filed his application he was informed that he had only 21 days. The applicant gave no further explanation of any step taken by him when receiving the adverse decision from the Federal Circuit Court to find out about the process for filing an appeal or to find out the period of time available to him in which to appeal the decision. His explanation of not having been informed by the Federal Circuit Court about the length of time available to him for the filing of an appeal is not in the circumstances an adequate explanation. 3 The proposed appeal, however, reveals insufficient merit to warrant an extension of time. The draft notice of appeal contains no proposed grounds identifying any error by the Federal Circuit Court or in the decision by the Migration Review Tribunal which had been the subject of review by the Federal Circuit Court. The applicant has filed a document in his application for an extension of time with a heading indicating it to be a draft notice of appeal from the decision of the Federal Circuit Court. It contains two typed pages addressed to a judge of this Court. One of the pages is directed to the extension of time and the other page is directed to the proposed appeal. The latter says: This is [applicant's name and date of birth].Icame in Australia as a student and in 2013 I had tried to extend my student visa but unfortounately it has got refused for some reasons.then I had applied mrt and it was not in my favour.again I applead to federal circuit and they dismissed this case.now I want my file lodge to federal court to get a decision in my favour.i am not [aware] with that whatever had happened during the lodgement of my student visa .for that, I already being punished for that to not to file any case for 3 years.now 3 years has been over now I request you to make this decision in my favour.i also want a another chance to make my future better. I had studied here as a regular student.At this stage I am very confused that which way should I go further for my better future. Still I am turning around in my views , I am worried about my carrer.i request you if you give me another chance to make my future in Australia by doing this in my favour please.i will be very thankful to you for this. […] There is in this statement nothing to indicate error by the Federal Circuit Court or by the Tribunal. At most it seeks a reconsideration of the original decision on the merits which is not something that may be undertaken by this Court by way of appeal from a decision of the Federal Circuit Court dismissing an application for judicial review from the decision of the Tribunal. 4 On 2 May 2013 the applicant applied for a Student (Temporary) (Class TU) visa. The applicant was required by clause 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations") to satisfy the public interest criterion 4020; relevantly, that there was no evidence before the Minister that the applicant had given, or had caused to be given, a "bogus document" in relation to the application for the visa. On 6 May 2013 an email was sent to the applicant requesting that he provide documentation to satisfy the financial requirements of the criteria in Schedule 5A to the Regulations. On 14 May 2013 the applicant provided fixed deposit receipts purportedly from the Bank of India and the State Bank of Patiala which were found by Departmental staff to have been fraudulent and not to have been issued by the banks. 5 On 6 June 2013 the Department sent the applicant an email inviting him to comment on the adverse information found against him. On 17 June 2013 the applicant's registered migration agent provided an affidavit from the parents of the applicant which included different evidence of a fixed deposit. The affidavit from the applicant's parents explained that "due to some compulsory domestic affairs we have used the funds which was deposited by us for the financial support of our son, Rupinder Singh. […] now we have adequate ability and resources to meet our sponsorship commitments […]". The material from the applicant's parents did not comment on the receipts which had previously been provided by the applicant to the Department. 6 On 5 July 2013 the delegate of the Minister refused to grant the visa on the basis that there was evidence that the applicant had given the Department a "bogus document" and therefore had not satisfied public interest criterion 4020. On 19 July 2015 the applicant applied to the Tribunal for a review of the delegate's decision which was affirmed by the Tribunal on 23 June 2015. The Tribunal found that the applicant had provided documents that were non-genuine and therefore that the applicant did not satisfy public interest criterion 4020. The Tribunal referred to the affidavit from the applicant's parents quoted above and at [10] said: The comments provided by your parents were misleading. The funds were not found to have been used, but to have been non-existent and the documents provided by Mr Khangura were not issued by either the Bank of India or the State Bank of Patiala and were bogus documents. The Tribunal went on to conclude that the applicant had provided documents that were non-genuine on the evidence which had been presented to the Tribunal. 7 On 20 July 2015 the applicant filed an application for judicial review of the Tribunal's decision. On 23 June 2016 the Federal Circuit Court dismissed the application with costs on the basis that it was satisfied that the Tribunal's findings were open to it and were based on the evidence before it. Judge Harland said at [9]-[10]: 9 The PIC 4020 requirements are triggered by the fact that the Department found that the applicant had provided bogus documents. Although the Tribunal did not refer to the decision of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, that decision deals with the bogus documents. 10 The Tribunal decision specifically addresses this issue. The Tribunal member found at paragraphs 9 and 10 that the explanation provided by his parents for the missing funds were misleading as the funds were not found to have been used but to have been non-existent and that the documents provided by the applicant were not issued by either the Bank of India or the State Bank of Patiala, and were bogus documents. The Court went on to consider whether the applicant had established the existence of compelling or compassionate circumstances justifying a waiver of the public interest criterion 4020 requirements. The Court affirmed the decision of the Tribunal that there was no compelling or compassionate circumstances to justify the waiver and that the Tribunal's finding was open to it and was based on the evidence before it. 8 There is no error evident in the decision of the Federal Circuit Court or in the decision by the Tribunal which had been the subject of review. Accordingly, the proposed appeal has insufficient merits to warrant the grant of an extension of time and the application will be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.