Mohammed v Minister for Immigration and Border Protection

1. The application for an extension of time, taken to also be an application for leave to appeal should an extension of time be granted, be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an application for an extension of time in which to appeal against the orders made by a judge of the Federal Circuit Court of Australia on 27 July 2018 dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal made on 11 November 2016. 2 The applicant is a citizen of India. On 7 October 2011, he applied for a Skilled (Provisional) Class (VC) visa. At the time, that visa had two subclasses: 485 and 487. The applicant's form indicated the relevant subclass was 487. This visa is no longer available. The criteria for this subclass were located in pt 487 of sch 2 to the Migration Regulations 1994 (Cth) since repealed. 3 Relevantly, one of the criteria was cl 487.225 which, in short, required that the applicant needed to have a sponsor both at the time the application was made and at the time of the decision to be eligible: 487.225 (1) Either: (a) if the applicant was nominated by a State or Territory government agency in accordance with subitem 1229(3A) of Schedule 1 at the time of making the application - the requirements of subclause (2) are met; or (b) if the applicant was sponsored in accordance with subitem 1229(3B) at the time of making the application - the requirements of subclause (3) are met. … (3) All of the following requirements are met: (a) the applicant, and all persons included in the application, are sponsored by a person who: (i) has turned 18; and (ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (iii) is usually resident in a designated area of Australia; and (iv) is related to the applicant, or the applicant's spouse or de facto partner (if the applicant's spouse or de facto partner is also an applicant for a Subclass 487 (Skilled - Regional Sponsored) visa), as: (A) a parent; or (B) a child or step-child; or (C) a brother or sister, an adoptive brother or sister, or a step-brother or step-sister; or (D) an aunt or uncle, an adoptive aunt or uncle, or a step-aunt or step-uncle; or (E) a nephew or niece, an adoptive nephew or niece, or a step-nephew or step-niece; or (F) a grandparent or first cousin; (b) the sponsorship was made: (i) on Form 1277 (Internet), and the Minister has accepted the sponsorship; or (ii) on Form 1277: (A) by posting the form (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this sub-subparagraph; or (B) by having the form delivered by a courier service to the address specified by the Minister in an instrument in writing for this sub-subparagraph; and the Minister has accepted the sponsorship. 4 At the time the application was made, the applicant was sponsored by an eligible relative, the applicant's first cousin, Ms Begum. However, on 20 February 2015 before the delegate of the Minister made the decision in respect of the application, the sponsor withdrew her sponsorship of the applicant. 5 The sponsor also refused to give any evidence throughout the visa application proceedings. It seems that what lay behind the sponsor's attitude was the conviction of the applicant in a criminal matter. In 2015, the applicant pleaded guilty and was convicted in respect of misappropriation of funds. The sentencing judge noted that he had been taken advantage of by his employer and was not aware that what he did was unlawful and that the conviction should not be looked upon or taken as a reason for refusing his immigration application. But the upshot of this was that the applicant was not sponsored at the time of the decision of the delegate. 6 The applicant applied for review to the Administrative Appeals Tribunal. The Tribunal first heard the matter in October 2016. At the request of the applicant, the Tribunal adjourned the hearing to 9 November 2016 so as to give the applicant a further opportunity to speak to his former sponsor to resuscitate the sponsorship. In the week leading up to the 9 November hearing, the applicant's migration agent emailed the Tribunal on a number of occasions, and on 2 November 2016, the agent indicated that while the sponsor could not attend, she was willing to write a letter and authorise her husband to appear as a witness. On 4 and 7 November, the applicant's agent informed the Tribunal that the sponsor and her husband would not be attending. 7 The applicant attended the 9 November 2016 hearing through his migration agent and by telephone. In the decision dated 11 November 2016, the Tribunal affirmed the delegate's decision. The Tribunal was not satisfied that at the time of its decision the applicant was sponsored. Ms Begum had refused to re-sponsor the applicant and refused to give evidence or appear at the Tribunal hearing. Thus cl 487.225(3)(a) was not satisfied. When the matter came to the Federal Circuit Court, it was listed as a show cause hearing and followed by further hearing on 15 June 2018. In those proceedings the applicant set out 13 grounds of review. 8 The primary judge, in a careful judgment, was concerned to ascertain whether the Tribunal had any discretion to make a decision other than to affirm the delegate's decision, and the first respondent filed supplementary submissions in this regard. The primary judge concluded that none of the grounds provide the basis for setting aside the Tribunal's decision and that there was no error on behalf of the Tribunal. 9 However, both the Tribunal and the primary judge were, to a degree, discomfited by the merits of the outcome. The Tribunal had commented in [13] of its reasons: 13. At the hearing, the applicant expressed his frustration about the unfairness in the delay in processing his visa application by the Department, which resulted in the applicant no longer being able to meet the visa criteria and precluding him from being eligible to apply for other various visas. The applicant noted that at the time of his visa application in 2011 he had various visa options to pursue and he did not appreciate that his sc487 visa application would take such a long time to process. Now with the passage of time and the change by his sponsor he does not have other options to remain in Australia, noting he had been in Australia for 8 years. Whilst the Tribunal appreciates the personal circumstances of the applicant and the impact of the delay in processing his visa application, the Tribunal cannot take these matters into account. 10 Similarly and more expressly, the primary judge noted that this may be a matter for s 351(1) of the Migration Act 1958 (Cth), which gives the Minister the discretion to substitute a decision of the Tribunal with a decision more favourable to the applicant regardless of whether the Tribunal had power to make a more favourable decision. The primary judge continued at [24] and [25] as follows: 24. The circumstances faced by the Applicant clearly affected the Magistrate hearing the criminal charges against him. The Applicant presented before the Court as a sincere person who believed strongly that a wrong had been done as a result of the actions of the person who had been his Sponsor. That view was shared by the Magistrate Grasso. The Applicant told the Court that he is currently working full time in a retail business as console operator in Burnie, Tasmania. He also said that he had a person who was prepared to act as a Sponsor for the purposes of a Visa application. He is supporting his family. 25. This may be a matter in which the Minister may make a discretionary decision pursuant to s.3 51 (1) of the Act. That section allows for Ministerial intervention to substitute the decision of the Tribunal with one that is favourable to the Applicant after reviewing the material available to the Department. This is a matter that the Applicant should obtain legal advice on. 11 In the present application, the applicant seeks an extension of time to file a notice of appeal in accordance with rule 16.05 of the Federal Court Rules 2011 (Cth). The application for leave to appeal was required to be filed within 14 days, that is, by 10 August 2018. This was not done. The application for an extension was filed 18 days after the last day for filing. 12 The principles in relation to extension of time are well settled. They are outlined in BOA15 v Minister for Immigration and Border Protection [2016] FCA 214; 151 ALD 352 at [19]: The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 13 The applicant explained the delay in his affidavit of 28 August that he could not apply on time because he was informed of the Federal Circuit Court decision and he came to know that the matter was decided only when he contacted the Court to know the outcome. 14 The delay is not long. The matter should be decided not so much on the explanation for the delay but as to the merits of the likely application. 15 There is also a notice of objection to competency filed by the Minister. The applicant would need leave to appeal if an extension of time were granted because of the way the Federal Circuit Court dealt with the matter as a show cause matter. I propose to treat the application for an extension of time as also an application for leave to appeal. 16 The applicant's draft notice of appeal has three grounds of appeal: 1. The court below erred by failing to find that the Administrative Appeals Tribunal's (Tribunal) decision was affected by jurisdictional error by not considering the claim the Applicant were not afforded procedural fairness; 2. That the court below erred by failing to find that the Administrative Appeals Tribunal failed to take into account relevant considerations. 3. The court below erred by failing to find that the Tribunal's decision was affected by jurisdictional error by erroneously interpreting clause 487.225 of the Migration Regulations. 17 The applicant, notwithstanding a direction of a Registrar of the Court, has not filed written submissions elaborating or particularising any of these three grounds. 18 The applicant appeared today by telephone. He made an application for an adjournment for him to seek assistance in respect of this matter. That application for an adjournment had not been foreshadowed to the Minister or the Court. No material was placed in support of it. I have rejected that application. 19 I have looked at the material. The essential reason why the applicant failed before the delegate and the Tribunal, and effectively before the Federal Circuit Court, was that there was a tolerably clear failure to meet the mandatory criterion, then in place at the time in 2015 and 2016, of sponsorship at the time of the decision. 20 Dealing with the first two grounds of the draft notice of appeal, the first respondent submitted that the applicant had failed to particularise their grounds and to identify any failure of the Tribunal to afford procedural fairness or consider any relevant consideration. I agree. Nothing has been put to me as to what procedural fairness error occurred or what relevant consideration was not taken into account. From the Tribunal decision there appeared to be no such apparent errors given the simplicity of the problem facing the applicant, to which I have referred. 21 As to the final ground on cl 487.225, that is, jurisdictional error by erroneously interpreting that clause, there are no submissions in support of that ground. As I have said, the requirements of sub-cl 487.225(3) are tolerably clear. There needed to be sponsorship at the time of the decision of the delegate or at the time of the decision of the Tribunal. There was not such a sponsorship. To the extent that the Tribunal and the primary judge thought that there were questions that might be rectified by an application of s 351 of the Act, that is a matter for the Minister. 22 On the material before the Court and for the reasons that I have given, I do not see any reasonable prospects of success of the appeal if the application for an extension of time were granted and if the application for leave to appeal were granted. For these reasons, the application for an extension of time in which to file an application for leave to appeal should be dismissed. 23 The orders of the court are that the application for an extension of time, taken to be also an application for leave to appeal should an extension of time be granted, be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.