Pal v Minister for Immigration and Border Protection

1. The applicant's application for an extension of time and leave to appeal dated 1 May 2017 be refused.
2. The applicant pay the first respondent's costs of the application to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BESANKO J: 1 This is an application for an extension of time within which to seek leave to appeal from an order made by the Federal Circuit Court. On 12 April 2017, the Federal Circuit Court made an order that the applicant's application for judicial review be dismissed. The Federal Circuit Court decided that the applicant's application for judicial review was incompetent or a nullity by reason of s 486D(1) of the Migration Act 1958 (Cth) (the Act) and that led to the order which it made (Pal v Minister for Immigration & Anor [2017] FCCA 906). 2 The order was an interlocutory order and leave to appeal is required. It was an interlocutory order because no determination of the merits of the application for judicial review was made (Luck v University of Southern Queensland (2009) 176 FCR 268 at [11]-[17] per Graham J; Rares J at [101]; Re Luck [2003] HCA 70; (2003) 203 ALR 1 at [4]-[9]). An application for leave to appeal must be made within 14 days after the date on which the judgment was pronounced or the order was made (r 35.13 of the Federal Court Rules 2011 (Cth)). A person may apply for an extension of time (r 35.14). 3 The applicant lodged an application for an extension of time and leave to appeal on 1 May 2017. He explained the delay by saying he was awaiting a result and was trying to see a doctor. He provided a medical certificate. His explanation is very difficult to follow. 4 The application for an extension of time should be refused because the application for leave to appeal has no prospect of success. In the alternative, I would refuse leave to appeal. 5 The applicant applied for a Student (Temporary) (Class TU) visa under s 65 of the Act on 30 July 2015. On 23 October 2015, a delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the visa. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the delegate's decision. On 9 May 2016, the Tribunal handed down its decision. It affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The basis of the Tribunal's decision was that the applicant had not given evidence in accordance with the applicable Schedule 5A requirements (financial capacity) and did not satisfy cl 572.223(2)(a). In the circumstances, the Tribunal found that the criteria for the grant of a subclass 572 visa were not met. 6 On 19 May 2016, the applicant made an application to the Federal Circuit Court for judicial review of the Tribunal's decision. The first return date was on 26 October 2016 at 10.00 am. The applicant did not appear on that occasion and a Registrar of the Federal Circuit Court made an order dismissing the application as a result of the applicant's non-appearance at the directions hearing. 7 On 8 November 2016, the applicant lodged a further application for judicial review seeking an extension of time within which to bring the proceeding. The applicant did not disclose in that application the fact of the previous application for judicial review. 8 Section 486D(1) of the Act provides as follows: A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. 9 The applicant's second judicial review application came on for hearing in the Federal Circuit Court on 12 April 2017. 10 The primary judge referred to s 486D(1) of the Act. He then said at [6]: In these circumstances, it seems clear that the present (more recent) application was not able to be brought and that this application is incompetent or a nullity. In these circumstances, the application must be struck out, as it is brought in breach of the Act. 11 His Honour noted that there was an issue as to whether a Registrar had the power to dismiss a proceeding before the Court, but he did not need to address that issue. He noted that the issue was presently before this Court. 12 The Full Court of this Court has since held that a Registrar of the Federal Circuit Court does not have the power to dismiss a case at the first court date for the non-appearance of an applicant (Minister for Immigration and Border Protection v BJC16 and Another [2017] FCAFC 114; (2017) 347 ALR 62 (BJC16) at [63]-[64]). 13 This does not mean that the primary judge's decision is wrong. The significant fact for the purposes of s 486D(1) of the Act is that the judicial review proceeding was brought, not its fate. Nothing was said on the application to suggest that the primary judge's decision was wrong, or even arguably wrong and in those circumstances, leave to appeal is to be refused (Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397). 14 There is a further reason leave to appeal will be refused and that is that there is unlikely to be any substantial injustice to the applicant should leave be refused. That is because the Minister told this Court that, in light of the decision in BJC16, he treats the applicant's first judicial review application as being "on foot". 15 The application for an extension of time and leave to appeal is refused. The applicant must pay the first respondent's costs of the application to be taxed in default of agreement. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.