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[2016] FCA 98
Federal Court of Australia
2016-02-12
Gilmour J
Original judgment source is linked above.
GILMOUR J: 1 This is an application pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (Rules), for an extension of time within which to appeal from a judgment of the Federal Circuit Court delivered on 21 October 2015 dismissing applications for judicial review of a decision made by the former Migration Review Tribunal (Tribunal). The Tribunal, in turn, had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant to each of the applicants a Student (Temporary) (Class TU) visa (student visa). 2 The applicants were directed to file and serve any written submissions by 27 January 2016. Short written submissions were filed in the first week of February 2016.
Background 3 The applicants are Fijian nationals. They applied for the student visa on 17 June 2014 in order to undertake study in Australia. At the time of application, the primary applicant (Applicant) was the holder of a Subclass 600 (Visitor) visa. The Delegate refused the applications on the basis that the Applicant did not satisfy clause 570.227 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 570.227 required that there be exceptional reasons for the grant of the visa onshore. 4 Certain correspondence was provided on behalf of the Applicant to the Minister's Department (Department) between 9 July 2014 and 11 July 2014. The letter had attached to it a submission document on behalf of the Applicant concerning, in effect, the question of his asserted 'exceptional reasons' (Submission Document). The Submission Document was not considered by the Delegate. The content of the Submission Document is set out at [3] of the Judgment and I have also set it out below: 1. I am happy to meet all expenses such as, school fees, and this is of course to benefit Australia economy as well as I will be meeting all weekly expenses for basic needs, which will benefit Australia, but the most importantly, completing my qualification will benefit Australia as when I will return to my country Fiji, with Australia skills and qualification so I will be able to work in a Australian company in Fiji such as lotus I Jk &Companies and Development Cooperation. 2. Here in Australia, I have my wife's parents, sister and they love Australia and are settled and when I came to Australia I meet the Australian people, their skills and qualification, that give me a great opportunity to this early course in English, which is not done in Fiji. So I take this opportunity to consider not only English but learn much more about Australian people and products, especially at government level and very sources of information in order to prepare my own vision and mission to be carried out to~ the Australian companies in Fiji. 3. In Fiji I was a part time worker as a labor, so I take this opportunity to study here and build a good relationship with Australian supplies so that I can take my qualifications and skills to Fiji and work as a full time worker in other hand I can operated my own business or take the big projects in which AI can promote or get the products from here. 5 Before the Tribunal on 23 April 2015, the Applicant stated that it had not occurred to him before coming to Australia that he wanted to study here. Further, it was only after he had witnessed the high standards of education in Australia that he decided to obtain some qualifications before returning to Fiji. Those qualifications he said would enhance his employment opportunities in Fiji in the future. He also stated that while studying in Australia he would be contributing to the Australian economy.
Tribunal decision 6 The Tribunal refused to grant the student visa on the basis that the Applicant did not satisfy clause 570.227 of the Regulations. It considered the Applicant's submission that he wished to study in order to improve his employment opportunities in the future. Although the Tribunal considered this to be understandable, it observed that it was also a common reason for studying in Australia. As such, the Tribunal did not accept that this constituted an exceptional reason. 7 The Tribunal also considered the Applicant's claim that whilst he was studying he would be contributing to the Australian economy. It found that the economic benefits would not be sufficiently significant so as to result in exceptional reasons for the grant of the visa. 8 As the second applicant applied as a member of the Applicant's family unit, the Tribunal also found that she could not satisfy the requirements of the student visa.
Federal Circuit Court proceedings 9 By application dated 29 May 2015, the applicants sought an extension of time in which to seek review of the Tribunal's decision pursuant to s 477 of the Migration Act 1958 (Cth). Three grounds were set out in the application, as follows: (a) "The Migration Review Tribunal is affected by error of law. The member failed to take into account my enrolment, my studies and payment and the fact that the Department of Immigration initially encouraged me to apply" (Ground One). (b) "I ask the honourable court to provide a copy of my file to enable me to provide particulars to support my case" (Ground Two). (c) "The Migration Review Tribunal denied me natural justice by the way conducting the hearing with other applicants (sic). I deserve a private hearing as I paid the full fee of $1604 and the Tribunal failed to give me a proper hearing" (Ground Three). 10 In submissions filed two days before the matter was listed for hearing, the applicants raised a new ground of review in respect of the Submission Document (Ground Four). Specifically, the applicants complained that it had not been considered by the Delegate or the Tribunal, and had not been included in the Court Book. At the hearing, the applicants referred to additional evidence capable of supporting the ground. The extension of time application was granted. The substantive application was referred to a further hearing. At the further hearing, it was accepted that the Submission Document had been provided to the Department but had not been considered by the Delegate or provided to the Tribunal in relation to the conduct of its review. 11 Following the hearing of the substantive application, the application was dismissed. The Court did not accept that the stated grounds established jurisdictional error, for the following reasons: (a) Ground One was unsustainable. The Tribunal's reasons disclose that on the question of exceptional reasons it took into account the Applicant's relevant circumstances; (b) Ground Two self-evidently neither alleged nor established jurisdictional error; (c) Ground Three could not be made out, as the case was conducted by the then Migration Review Tribunal which, unlike its counterpart, regularly conducted hearings in public. The bare allegation of denial of natural justice could not, without more, establish jurisdictional error; and (d) Ground Four could not succeed, as the Submission Document could not be described as sufficiently cogent and substantial in the context of the Tribunal's decision such that a failure to consider it went to jurisdiction. In any event, the Tribunal had considered the substance of the Submission Document, which was repeated by the Applicant to the Tribunal. Furthermore, there was Full Court authority against the proposition that an alleged error on the part of the Secretary under s. 418(3) sounded in jurisdictional error on the part of the Tribunal.
Application for an extension of time 12 The applicants seek an extension of time in which to appeal from the decision of the Federal Circuit Court. In an accompanying affidavit, the Applicant complains that judgment was delivered orally on 21 October 2015. The written reasons, dated 6 November 2015, were "recently sent". The draft notice of appeal asserts the following grounds: (1) The Tribunal failed to understand that my circumstances are exceptional and ignored the important written evidence which was not on file as a result of not being passed on by the Department. (2) I applied for [a] student visa and my application was valid and I submitted evidence of exceptional circumstances and do believe that the outcome is unreasonable. (3) His Honour accepted an error by the Department of Immigration in relation to the receipt of submissions and not to take this error as jurisdictional error is indeed an error in itself because if the submission was before the Tribunal at the time it would have made a different view. 13 As the Minister submits, the principles governing the exercise of the Court's discretion to grant an extension of time are well-established. The Court needs to have regard to factors withstanding the length of, and reason(s) for, the delay, the merits, or lack thereof, of the proposed grounds of appeal, and any prejudice to the other party or parties. See e.g. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349. Cases that are weak on the merits ordinarily will not warrant the grant of an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at [3] - [4] per Brennan CJ and McHugh J; [66(4)] per Kirby J. 14 The period in which the applicants are out of time is relatively brief (5 days). The Applicant claims that the delay was caused by his expectation that he would receive written reasons for judgment at the time that the ex tempore judgment was delivered. The written reasons for judgment were subsequently emailed to him after he contacted the Federal Circuit Court. I accept this to be a sufficient explanation for the short delay. 15 However, the proposed grounds of appeal are unmeritorious. 16 The applicant in his short written submissions asserts in effect relevantly that the Submission Document was ignored by the Minister. That the Minister did not consider the Submission Document is accepted. He then submits that the Department and the Tribunal were in error by not concluding that his reasons provided were "exceptional". 17 There is no basis to contend that the Tribunal "failed to understand" the exceptional nature of the Applicant's circumstances, or that its decision was unreasonable. The Applicant's circumstances were, on no view, exceptional as the Tribunal correctly found. 18 The balance of the proposed grounds seek to rely upon the Tribunal's non-consideration of the Submission Document. The proposed grounds are in effect a re-iteration of Ground Four before the Federal Circuit Court. 19 The Minister submits that the applicants cannot persuade the Court that: (1) in a realistic sense, the Submission Document itself was sufficiently cogent, substantial, consequential, or important so as to have been capable of going to the Tribunal's jurisdiction; (2) Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 at [99]; [111] - [112]; the Tribunal failed to consider those matters raised in the Submission Document; (3) any error on the part of the Secretary under s. 418(3) resulted in jurisdictional error on the part of the Tribunal. 20 The first two of these submissions are to some extent interrelated. The Applicant had undertaken part time labouring work in Fiji. Through the Submission Document, he had submitted to the Department that studying English in Australia would assist his employment opportunities in Fiji and whilst he was studying this would benefit the Australian economy. 21 The Tribunal afforded a number of opportunities to expand upon these claims. 22 The Applicant repeated to the Tribunal that studying in Australia would enhance his employment prospects in Fiji. The Tribunal put to him that his reasons did not appear exceptional, and invited further comment. The Applicant additionally submitted that he would contribute to the Australian economy. The Tribunal put to him that the economic benefits would not be sufficiently significant to constitute exceptional reasons. 23 The Applicant was afforded the opportunity to raise, and did raise, the arguments he wished to make before the Tribunal. Those arguments repeated the substance of what was set out in the Submission Document. They were considered by the Tribunal. It cannot be said that the physical Submission Document was sufficiently central, cogent and substantial as to be realistically capable of going to jurisdiction; or that the Tribunal did not consider the substance of the matters raised in the Submission Document. 24 As to the third submission, a failure by the Secretary to provide documents to the Tribunal in accordance with s 418(3) does not result in jurisdictional error on the part of the Tribunal: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [38]-[39] and [64]. 25 No appealable error is capable of being established.
Conclusion 26 The application for an extension of time within which to appeal will to be refused with costs to the Minister. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.
Ram
Minister for Immigration and Border Protection