Yama v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant is a citizen of India who was granted a temporary student visa on 29 October 2001. Between 2001 and 2002, he studied at the International Institute of Business Technology in Sydney (the Institute). The student visa was subject to Condition 8202. The student visa was due to expire on 8 November 2003. On 7 November 2003, the applicant applied for a further student visa. His application was refused by a delegate of the first respondent on 14 January 2005. The applicant applied to the Migration Review Tribunal (the Tribunal) to review the delegate's decision. On 14 September 2005, the Tribunal affirmed the delegate's decision. The applicant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. On 15 March 2007, that application for judicial review was dismissed by the Federal Magistrate. 2 The applicant now seeks an extension of time to appeal against the Federal Magistrate's decision. The applicant filed his application for an extension of time to file and serve his notice of appeal on 13 April 2007, which was after the expiry of the 21 day period within which he should have appealed. The applicant has filed an affidavit in support of his application for an extension of time. In the affidavit he says: I hereby state that I was seeking for an advisor and had absolutely no knowledge that I have to appeal within 21 days. 3 The applicant also enclosed a draft notice of appeal which stated the following grounds: (1) I am not satisfied with the Federal Magistrate decision, and (2) I am not satisfied with the decision based on evidence provided. 4 The matter was listed for hearing today at 2.15 pm. It is now just past 2.30 pm, and the applicant has not appeared. The first respondent has provided me with evidence that the applicant was informed by letter dated 12 July 2007 of the fact that this hearing would take place today at 2.15 pm. A map was provided to assist the applicant in locating the Court. I am informed that the matter was called outside the courtroom and also on the Registry level. The applicant has not appeared. The Court has power pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to make an order that an appeal to the Court be dismissed for a "failure of the appellant to attend a hearing relating to the appeal". In my view, the Court, therefore, has the power to dismiss an application for an extension of time within which to appeal, because it relates to an appeal (SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499). I exercise the power pursuant to that provision to dismiss the applicant's application. 5 However, in any event, I will consider the merits of the application. The Court has power under O 52 r 2 of the Federal Court Rules to extend time for the filing of an appeal, where there is a "special reason". In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said of the expression "special reasons": "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty‑one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in a particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think that the expression for "special reasons" implies something narrower than this. 6 In the case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348‑349, the Full Court set out some of the matters which should be taken into account. These factors include the explanation for delay, any prejudice which might be suffered by the respondent in defending the proceedings caused by the delay, and the merits of the substantive appeal. In this case, the delay is not long and is adequately explained given the fact that the applicant is self‑represented. This factor would not weigh against an extension of time. Likewise the prejudice to the respondent in defending the proceedings caused by the delay is not a matter which would weigh against the extension of time. 7 This leaves the question of the merits of the appeal. The delegate decided on 14 January 2005 not to grant the student visa, having come to the view that there had not been substantial compliance with the visa conditions on which the previous visa was issued. The visa condition in question was Condition 8202 which requires that the student, in the case where his education provider keeps attendance records, attends for at least 80% of the contact hours scheduled. The evidence before the delegate was that the applicant's attendance in the last three terms of the academic year 2002 was 80%, 60% and 36% of the scheduled contact hours. The question of whether there had been "substantial compliance" with the previous visa conditions was a relevant factor for the delegate to consider in deciding whether to grant the visa. 8 The applicant then sought review of the delegate's decision by the Tribunal. The Tribunal sent a letter on 22 April 2005 asking the Institute to provide documents comprising the applicant's attendance records, timetable, and academic calendar for terms 3 and 4 of the academic year 2002, being the two terms in respect of which the attendance records showed a 60% and 36% attendance rate. The Institute provided those documents to the Tribunal. 9 The Tribunal invited the applicant to attend a hearing on 7 July 2005. The applicant did not attend the Tribunal hearing on that date. 10 The Tribunal subsequently sent a letter to the applicant inviting him to comment on the evidence which showed that, on the face of it, he appeared not to have complied with Condition 8202 in respect of his attendance for terms 3 and 4 of 2002. The applicant, through his migration agent, made a very detailed response to the Tribunal in a seven page letter, which also annexed the records which were in issue.