Koppolu v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file an appeal against a decision of Allsop J given on 16 April 2004. His Honour dismissed an application for review of a decision of the Migration Review Tribunal ("the MRT"). The MRT affirmed the decision of a delegate to refuse to grant the applicant a Student (Temporary)(Class TU) visa. 2 The application for an extension of time was filed on 7 September 2004, approximately four months after the time provided for under the rules. 3 Order 52 rule 15(2) provides that an extension of time may be granted for "special reasons". 4 In Jess v Scott (1986) 12 FCR 187 ("Jess v Scott") at 195, the Full Court stated that what is necessary to satisfy the test is to demonstrate circumstances which justify the departure from the general rule in the particular case. The ground must be such as to take the case out of the ordinary. 5 However, as has been observed by the Court, even if special circumstances are identified, the Court still has a discretion to grant or refuse an extension. One of the factors which is of particular importance in the exercise of the discretion is whether there is any prima facie strength to the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. 6 I will set out briefly the background, including a reference to the reasons of the MRT and the reasons of Allsop J, before turning to the application in the present case. 7 As the MRT noted, the central question on the review was whether the applicant had complied substantially with Condition 8202 of the visa. That condition provided that the holder met the necessary requirements if he or she achieved an academic result that was certified by the education provider to be, at least, satisfactory. 8 The evidence before the MRT, which was supplied by the education provider, showed that the applicant had failed all of the subjects taken by him at the University in the years 2001 and 2002. 9 At the hearing before the MRT, the applicant provided an interim academic transcript which showed that he had passed some subjects at courses conducted by the Australian Institute of Management and Computing. This was a different education provider from the institution referred to above. 10 The MRT recorded that the applicant gave reasons why he said his record at the University had not been satisfactory. However, the MRT was not satisfied that the applicant had complied substantially with Condition 8202 of the visa. 11 The applicant's migration agent did not attend the hearing before the MRT, but the MRT's reasons record at [22] that a staff member who was an "unregistered" person from the representative's firm assisted the applicant at the hearing. 12 The applicant was unrepresented on his application for review before Allsop J. His Honour noted at [6] that the MRT considered the applicant's explanation for his poor academic record but he went on to observe that the MRT found that those considerations did not absolve the applicant from the fact that he had failed each and every subject attempted in the course. His Honour said at [8] "The Tribunal considered not only the academic transcript but also the explanation put to it by the applicant." 13 His Honour said that "There was no apparent unfairness in the procedure adopted. No jurisdictional error has been shown." 14 The applicant did not file a notice of appeal from the judgment of Allsop J, but instead sought prerogative relief from the High Court. He was represented by his present solicitor when the application came before Heydon J on 23 August 2004. 15 His Honour said:- "The applicant's draft order nisi dated 26 May 2004 seeks prerogative relief in this Court challenging a decision of the Migration Review Tribunal delivered on 21 July 2003, upholding a refusal of a delegate of the Minister to grant a visa. It does so on six standard form grounds. On 16 April 2004, Justice Allsop, sitting in the Federal Court of Australia, held that the procedure adopted by the Tribunal involved no apparent unfairness and held that no jurisdictional error was shown. Those findings amount to a rejection of the grounds on which the applicant relies. The applicant did not appeal against Justice Allsop's orders. There is no evidence or other material to support the grounds relied on. Accordingly, there is no point in remitting the matter to the Federal Court of Australia, and the proceedings are dismissed with costs." 16 The applicant relies upon an affidavit sworn on 6 September 2004 to establish special circumstances. He points to the fact that he was unrepresented before Allsop J. He says he did not have the financial resources to engage a solicitor. I pause there to observe that the applicant's draft order nisi in the High Court was dated 26 May 2004, approximately a month after the decision of Allsop J. It is not clear whether the applicant had legal representation at that time but, as I have said, he certainly did have representation on 23 August 2004. 17 The affidavit goes on to say that the applicant went to the High Court to seek guidance and advice. He says he was told by the High Court registry to apply for a draft order nisi. That suggests that he may not have had legal representation on that day. He says that on 23 August 2004 Heydon J directed his solicitor to lodge an appeal to the Federal Court. This does not appear from the transcript. 18 He also says in the affidavit that he is advised that a jurisdictional error was made by the MRT in allowing an unregistered person to represent the applicant in the hearing. 19 The affidavit also says that the applicant was advised by his solicitor to apply for an extension of time to file and serve a notice of appeal. 20 Written submissions were filed by the applicant on 29 September 2004. I assume that the submissions were prepared by the applicant's solicitors who have represented him since at least 23 August 2004. The submissions seek to agitate as a ground of appeal the contention that the representation by an unregistered person who it is said was not competent to give migration assistance constituted a breach of s 280 of the Migration Act 1958 (Cth) ("the Act") and jurisdictional error. 21 This point was not run before Allsop J. The well known decisions of the High Court in Coulton v Holcombe (1986) 162 CLR 1 ("Coulton v Holcombe"), Water Board v Moustakas (1988) 180 CLR 491 and University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 all point against leave being granted to run this point on appeal. 22 Ms Burnett, who appeared for the Minister, told me that if leave were given to run this point for the first time on appeal, it may cause prejudice and it seems clear enough to me that the matter would require evidence on both sides. No evidence has been put on by the applicant to support the contention apart from the reference to it in the decision of the MRT to which I referred above, but importantly, there may well be prejudice to the Minister, which would clearly preclude the point being taken on appeal for the reasons referred to by the High Court in Coulton v Holcombe. 23 In any event, I cannot see how the representation by an unregistered person at the hearing could amount to jurisdictional error. No authority was put to me in support of the proposition that it does amount to jurisdictional error. Whether or not there was a breach of s 280 of the Act, the representation of the applicant by an unregistered person seems to me to be beside the point. 24 The same answer can be given to the two other points, which Mr Williams put forward as constituting jurisdictional error. The first point was that the education provider did not follow mandatory provisions of the legislation by giving notice under s 20 of the Education for Overseas Students Act 2000 (Cth). He also said that the MRT failed to ask itself the right question because it did not ask whether the applicant could have substantially complied. 25 As to the s 20 point, there is no evidence to support it. The question of substantial compliance of whether the applicant could have complied was considered by the MRT. Allsop J referred to that in his reasons for judgment. 26 I do not see that the fact that the applicant was unrepresented before Allsop J has any bearing on the question of whether the Court would exercise its discretion to grant leave to run any of these points for the first time on appeal. 27 I do not consider that the applicant's affidavit demonstrates special circumstances within the principles stated in Jess v Scott. In any event, even if there were special reasons, nothing has been put to suggest that there are any prospects of success on appeal. 28 Accordingly, the application is dismissed with costs. I certify that this and the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jacobson. Associate: Date: 7 October 2004