FEDERAL COURT OF AUSTRALIA

Hasan v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 788

PRACTICE AND PROCEDURE – application for extension of time to file and serve a notice of appeal – relevant factors – prospects of success – standard to be applied

Education Services for Overseas Students Act 2000 (Cth) s 20

Migration Act 1958 (Cth) s 137J, s 137L

Federal Court Rules, Order 52 rule 15

Jackamarra v Krakouer [1998] HCA 27

Jess v Scott (1986) 12 FCR 187

Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574

Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460

NAII v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1008 WAGL v  Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 595

Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 132

SZAAK v  Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 702

WAAD v Minister for Immigration & Multicultural & Indigenous Affairs  [2002] FCAFC 399

MD NAZMUL HASAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N678 OF 2004

BENNETT J

3 JUNE 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application is refused.

2.         The applicant is to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application, under Order 52 rule 15(2) of the Federal Court Rules, for extension of time to file and serve a notice of appeal from the judgment of Raphael FM in which his Honour dismissed the applicant’s application for review of a decision of the Migration Review Tribunal (‘the Tribunal’). The applicant appears before me in person.

background

2                     On 26 January 2000, the applicant came to Australia on a Student (Temporary) (Class TU) Subclass 560 (Student) visa.  On 22 February 2000, he obtained a further student visa. The applicant was initially enrolled at the Access Language Centre but in May 2000 enrolled at the Canterbury Business College (‘the College’).  On 8 August 2001, the College issued a notice to the applicant under s 20 of the Education Services for Overseas Students Act 2000 (Cth). Pursuant to s 137J of the Migration Act 1958 (Cth) (‘the Act’), the applicant’s student visa was automatically cancelled 28 days after the issue of the notice; the applicant failed to report to the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’) within the 28 day period.

3                     On 3 of May 2002, under s 137L of the Act, the applicant sought revocation of the automatic cancellation.  The Department sought information about the applicant's attendance and academic performance from the College. The College confirmed the attendance record of the applicant, in that it said he had attended more than 80 percent of his classes in terms two and three of 2000 but had then fallen below that figure, ending with 30 per cent attendance in term two of 2001 and zero attendance in term three.  He had last attended the College on 25 June 2001. The applicant enrolled in another course, at the Australian Institute of Management & Computing, which he commenced attending in August 2001 and in which he had satisfactory attendance in term four in 2001. He then withdrew from that course to begin studying at TAFE in January 2002. 

4                     On 10 May 2002, a Delegate of the respondent (‘the Delegate’) refused to revoke the automatic cancellation. The applicant sought review of the Delegate's decision by the Tribunal.  The Tribunal noted that the issues it needed to consider, pursuant to s 137L of the Act, were:

(a)                whether the applicant had breached visa condition 8202; and

(b)               if he had, whether the breach was due to ‘exceptional circumstances beyond [the applicant's] control’.

5                     As to the first issue, the applicant asserted before the Tribunal that the College's information about his attendance and warning letters sent to him were a fabrication and that he had in fact attended over 80 per cent of his classes.  The Tribunal rejected this assertion and found that he had failed to attend the requisite percentage of classes.  As noted by the Raphael FM at [7] of his reasons, the Tribunal pointed out certain inconsistencies in the applicant's evidence:

‘In the Tribunal's view, the most reliable evidence available indicates that the review applicant did in fact breach condition 8202 as it attached to his visa when enrolled to study at Canterbury Business College.  While during the hearing the review applicant made various claims regarding the activities of the college and their dislike for him, earlier evidence presented by him referred to poor attendance and did not suggest that he had in fact satisfied the attendance requirements.  In particular, in a written statement, the review applicant refers to classes being boring, to attending the computer lab and surfing the internet and to not attending classes at this time.  This statement was provided to explain the absences which had been recorded in relation to the review applicant.  The statement clearly indicates that the review applicant had ceased attending classes and does not suggest that he was in fact attending classes and that the attendance recorded by the College was incorrect.  In the Tribunal's view, only during the hearing have the review applicant's claims changed to the point where he now claims that no breach occurred.

In view of the changing nature of the evidence provided by the review applicant regarding the circumstances, the Tribunal does not believe that he has presented a reliable account of his circumstances.  For this reason the Tribunal relies upon and finds to be correct the attendance records maintained by Canterbury Business College and is of the view that a breach of condition 8202 occurred in relation to the review applicant's attendance in term four 2000 and in terms one, two and three 2001.  He did not therefore, attend at least 80 per cent of scheduled contact hours of the course at which he was enrolled during those times.’

6                     Once the Tribunal found that the applicant had not attended at least 80 per cent of scheduled contact hours of the course at which he was enrolled, it was bound to affirm the cancellation of the visa. There was no residual discretion (see Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 at [11] – [12]; see also Minister for Immigration & Multicultural Affairs v Hou [2002] FCA 574 at [33]).

7                     As to the second issue, the applicant's case was that he had been very disappointed by several aspects of the course offered at the College and found it difficult to learn anything.   He said that he had attended the College regularly but, instead of going to classes, had spent the time in the computer lab surfing the internet. 

8                     The Tribunal did not find this explanation convincing. It concluded that the applicant had made a decision to reduce his attendance at the College.  The Tribunal regarded the applicant's history of subsequent study (which involved partial completion of two further courses) as indicating that his failure to complete the course at the College was not exceptional. Accordingly, the Tribunal was not satisfied that the applicant's breach of condition 8202 was explained by ‘exceptional circumstances’.

9                     On 18 March 2003 the Tribunal affirmed the Delegate's decision not to revoke the automatic cancellation of the applicant's visa.  The applicant applied to the Federal Magistrates Court for review of the decision of the Tribunal. Raphael FM dismissed the application with costs on 7 April 2004.  . 

10                  An application for extension of time to file and serve a notice of appeal was filed in this Court on 5 May 2004.  In the affidavit in support of the application, the applicant said that he had come late to the Court to appeal the Federal Magistrate's decision because he believed he had 28 days from the day the decision was given.  He was informed by the Court that he only had 21 days and therefore put on this application for an extension of time in which to file and serve the notice of appeal.

the relevant principles

11                  Order 52 rule 15(1) of the Federal Court Rules relevantly provides:

‘(1)      The notice of appeal shall be filed and served:

(a)        within 21 days after:

(i)         the date when the judgment appealed from was pronounced;

…

(2)        Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

…

(6)        An application shall be accompanied by an affidavit showing:

(a)        the nature of the case;

(b)        the questions involved; and

(c)        the reason why leave should be given.

12                  It is, of course, necessary for the applicant to establish that his misunderstanding did constitute ‘special reasons’. The meaning of this was considered by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195.

13                  As stated above, in his affidavit, the applicant says that he thought he had 28 days in which to file the notice of appeal. No other matter is raised.  I note that the delay is not extensive and a reason is given for that delay.  I also note that the applicant is not legally represented and does not seem to have been legally represented when he sought to file his notice of appeal.  There is no suggestion of any prejudice that will be suffered by the respondent by reason of the delay of one week.

14                  As was said by the Full Court in WAAD v Minister for Immigration & Multicultural & Indigenous Affairs  [2002] FCAFC 399 (‘WAAD’) at [7]:

‘The discretion to extend time is given for the purpose of enabling the court to do justice between the parties … So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.’

15                  What was said by the Full Court in WAAD is apposite to the present case although, here, the applicant is not relying upon any delay between the pronouncement of judgment and the availability of written reasons. In WAAD (at [8] and [9]), the Full Court noted that the student had no legal representation and that the respondent Minister was not prejudiced by the extension of time and said:

‘it would be wrong to refuse the extension subject to what follows … An extension of time in which to file an appeal will not be granted without a consideration of the appellant's prospects of successfully prosecuting his appeal.’

decision

16                  It is not necessary for me to decide the question whether a mere lack of knowledge of the 21 day time limit can constitute ‘special reasons’ within the terms of Order 52 rule 15(2), although I am satisfied that there has been an explanation for the delay.  It seems to me that the first question for consideration is the appellant's prospects of successfully prosecuting the appeal. 

17                  The applicant's draft notice of appeal states:

1.         ‘The Canterbury Business College things happened without my concerned.’

2.         ‘I can proof I was a genuine student at Canterbury Business College.’

18                  These appear to be two of the same grounds of review that were raised by the applicant in his application before Raphael FM.  At [9] to [12] of the reasons for judgment, his Honour set out each of the three grounds that were before him and considered each of those grounds in turn. 

19                  In respect of ground one of the draft notice of appeal, his Honour noted:

(a)        that this seemed to be a submission going to the facts of the applicant's relationship with the management of the College;

(b)       the Tribunal took into account the applicant's complaints about the College and concluded, on the basis of the evidence before it, that it preferred the evidence of the College over the applicant; and

(c)        the Tribunal's finding in this regard is a finding on credibility and on the facts with which, his Honour said, he could not interfere.

20                  I agree with the reasons given by Raphael FM. No jurisdictional error is apparent.

21                  In respect of ground two of the draft notice of appeal, his Honour noted that the fact that a visa holder may not be a genuine student could be grounds for cancellation of his visa but that this was not alleged in the applicant's case. The fact that the applicant was a genuine student did not prevent the operation of condition 8202 or the Tribunal's decision not to revoke the cancellation of the visa.

22                  His Honour, Raphael FM, concluded that he was unable to find any grounds upon which the applicant could seek review of the Tribunal's decision and dismissed the application with costs. 

23                  Before me, the applicant explained that, when he said that he was a genuine student, what he meant was that he could establish that he had attended the College more than the requisite 80 percent of the time.  Again, that is a factual matter that was before the Tribunal and decided by it.

24                  It was open to the Tribunal to its decision on the evidence before it.  It is quite clear that what the applicant is really seeking in this Court is merits review which this Court cannot undertake.

25                  When asked the basis of his appeal in the hearing before me, the applicant referred repeatedly to new documentation that had come into his possession that, he said, could establish that:

(a)               he in fact had attended at the College more than the amount stated in the certificate; and

(b)               would support his allegations with respect to the College, that were made to the Tribunal.

26                  The applicant said that he had not brought those documents before the Tribunal. Accordingly, the Tribunal was not in error in failing to consider them. Upon being asked repeatedly if he could point to any error in the Tribunal's decision or in the decision of the Federal Magistrate, the applicant said he was not able to do so.  In my view, none is apparent.

27                  When the Court forms the view that the applicant does not have an arguable case, the reason given for refusing to extend time can be couched in various ways. For example, in Jackamarra v Krakouer [1998] HCA 27 at [7], Brennan CJ and McHugh J used the expression whether ‘the Court can be satisfied that the appeal is so devoid of merit that it will be futile to extend time’.  In NAII v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1008 at [8], Whitlam J said: ‘I am firmly convinced on the materials before me that the appeal would be totally fruitless’. His Honour held that there was no reason why the discretion under Order 52 rule 15 should be exercised in the applicant's favour.  In WAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 595, French J observed (at [10]) that in circumstances where there did not appear to be any reviewable error on the part of the Tribunal ‘it would be a waste of time granting an extension of time within which to appeal’. In Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 132, Finn J looked to whether the question was ‘so unarguable that any appeal is doomed to failure’. In SZAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 702, Gyles J said that he was satisfied that the applicant ‘has not any arguable ground of appeal’ in refusing to extend time under Order 52 rule 15.

28                  It seems to me that each of these phrases is applicable to the present case. In those circumstances, the discretion given in Order 52 rule 15 ought not to be extended in the applicant's favour. 

conclusion

29                  The application is refused. The applicant is to pay the respondent's costs. 

Associate:

Dated:              21 June 2004