FEDERAL COURT OF AUSTRALIA

Khondoker v Minister for Immigration and Citizenship [2012] FCA 654

THE COURT ORDERS THAT:

1.    The Application for an Extension of Time for Leave to Appeal and for Leave to Appeal filed by the applicant on 16 May 2012 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to that Application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant has applied for an extension of the time within which he might seek leave to appeal and for leave to appeal from a judgment of a Federal Magistrate delivered on 24 April 2012 (Khondoker v Minister for Immigration [2012] FMCA 355). The present Application was filed on 16 May 2012 which is eight days after the expiration of the time within which the applicant was permitted by the Federal Court Rules 2011 (FCR) (see r 35.13 FCR) to file an application for leave to appeal from that judgment.

2    By the judgment which is challenged, the Federal Magistrate dismissed an application made by the applicant pursuant to reg 16.05 of the Federal Magistrates Court Rules 2001 (FMC rules) for an order setting aside orders made by the same Federal Magistrate on 20 March 2012, in the absence of the applicant. The orders made on 20 March 2012 were in the following terms:

THE COURT ORDERS THAT:

(1)    The proceeding before this Court, commenced by way of application filed on 17 November 2011, is dismissed pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s hearing.

(2)    The applicant pay the costs of the first respondent fixed in the amount of $5,000.

(3)    The first respondent is directed to notify the applicant forthwith of the Orders made today and to provide the applicant with a copy of r.16.05 of the Federal Magistrates Court Rules 2001 (Cth).

NOTE:    The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

3    The application which was dismissed by the Federal Magistrate on 20 March 2012 was an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) made on 21 October 2011 by which the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) not to grant to the applicant a Class VB Subclass 885 Skilled (Residence) Independent Visa (subclass 885 visa). A subclass 885 visa is a permanent visa under the Migration Act 1958 (Cth) (the Act). The delegate had also decided not to grant to the applicant either of the other two subclasses of visa in Class VB (Subclasses 886 and 887).

The Relevant Facts

4    The applicant is a 32 year old citizen of Bangladesh who first arrived in Australia in August 1997 on a student visa. He was subsequently granted further student visas which enabled him to complete his studies. The last of these visas was granted by the Department of Immigration and Citizenship (the Department) in March 2008. That visa was valid until 30 July 2009.

5    The applicant completed his studies at Charles Darwin University (Casuarina, N.T. Campus) on 11 April 2008. On that date, he became eligible for the award of the degree of Bachelor of Information Technology. He graduated with that degree on 22 May 2008.

6    On 30 June 2008, by application dated 27 June 2008, the applicant applied to the Department for a subclass 885 visa.

7    The left-hand column on page 1 of the form of application signed by the applicant included the following:

Application overview

Which visa are you applying for?

ONSHORE

8    At item 15 in that application, the applicant specified his current residential address as:

53 Vanderlin Drive

Wanguri

NT 0810

He gave a post office box number at Casuarina as his postal address.

9    At item 25 in the same application, the applicant described his nominated occupation as “Computing Professional”. The ASCO code for that occupation was specified by him as 2231-79. He had been assessed by Australian Computer Society Inc (ASC) to be suitable for migration under 2231–79 (ICT–Recent Graduate) of the ASCO code upon the basis that that was the skilled occupation that he had informed ASC he intended to nominate in his visa application.

10    At item 29, the applicant stated that he had booked an English language test for 29 August 2008. He did not provide any other details of that booking.

11    At item 56, the applicant claimed the following points:

Part E – Points test

Please indicate the points you are claiming for the following factors

Note: You should be aware that if, when your application is assessed, you are given an assessed points score lower than that you have claimed above then your application may not be successful.

It is not possible to add ‘primary applicant’ and ‘spouse/interdependent partner’ points together.

He did not complete the last two items in the points table extracted above.

12    The applicant also stated in his application that both his parents and all of his siblings resided in Bangladesh as at June 2008 and did not intend to emigrate to Australia.

13    He also specified that all written communications about his application should be sent to the address which he nominated for such communications (viz his post office box at Casuarina).

14    At item 67 in his application, the applicant stated that he was not being nominated by a State or Territory government agency or Regional Certifying Body. At item 68, the applicant stated that he was not being sponsored by an eligible relative.

15    Item 69 required the applicant to place a cross in one or other of two boxes if he was applying for a Skilled (Regional Sponsored) (Subclass 487) visa (subclass 487 visa). He did not make a cross in either of those boxes.

16    An undated letter in which the Department acknowledged receipt of the applicant’s subclass 885 visa application on 30 June 2008 was sent to the applicant at his residential address. No communication was sent to his Casuarina post office box. The Department’s letter acknowledging receipt of the applicant’s application was returned to the Department on 7 July 2008 marked “Return to Sender” (left address/unknown).

17    The acknowledgement letter made very clear that, as far as the Department was concerned, the applicant’s application was for a subclass 885 visa, and for that visa alone.

18    On 21 August 2008, the applicant sent the following email to the Department (omitting formal parts):

My inquary [sic] was that, I have submitted an application form for General skilled migration on 27th June 2008. Application fees are already deducted from my account but I have not received any acknowledgement letter from your department.

By the way I’m sending an authorisation letter to contact with me electronically at the respective email address.

He attached an authorisation by which he informed the Department that it may communicate with him by email at the email address specified in that authorisation.

19    On 19 November 2008, the Department sent by email a letter to the applicant in which it sought further information from him. That letter also made it very clear that, as far as the Department was concerned, the visa for which the applicant had applied was a subclass 885 visa. The author of the letter also said that Item 885.213(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) applied to the applicant’s application for a subclass 885 visa and continued:

This means, [referring to the statement that Item 885.213(b) applied] that at the time of application, you must have had competent English language ability. You did not provide evidence with your application that you have competent English ability. As a courtesy, you are being provided with an opportunity to provide evidence that, at the time of application, you had competent English ability. Please provide IELTS test results for a test that you sat prior to or on the date of application. Test results for any test sat after 30/06/2008 are not acceptable.

20    On 3 December 2008, soon after he received the letter from the Department dated 19 November 2008, the applicant sent an email to the Department which was in the following terms (omitting formal parts):

Thank you for your e-mail. Sorry for delaying in reply, I am not regular with checking of my e-mail. Unfortunately for your information I made a major mistake with my application, instead of subclass 487 I crossed subclass 885. As per you [sic] instruction in the attached letter I will fill up the Form 1023 and forward that to you ASAP to correct that mistake.

In this connection I will appreciate if you kindly inform me whether I can I continue using the same file number BCC2008/12307. I need this information to let NT Government, Department of Business and Employment know the file number so they can forward the NT Sponsorship under SRS Visa.

Please note that I have already been informed by e-mail that my application for the sponsorship with NT Government has already been approved.

Thank you again for your help and kind consideration and I am sorry of the mistake. As I did the application myself the mistake was done due to complexity of the application process and I do apologises for that.

21    A subclass 487 visa is a 3-year provisional visa which allows holders to live only in certain areas of Australia. An applicant for such a visa must be sponsored by an Australian relative living in a designated area, by a State or Territory government or by an appropriate certifying body.

22    Approximately 45 minutes later, the Department responded to that email as follows (omitting formal parts):

Thank you for your email. The client reference number BCC2008/12307 relates to your Skilled – (VB 885) Independent application only. This cannot be used for any other application.

You will need to lodge a new application for the subclass 487. Please make sure that you meet all the requirements for the subclass 487 visa before you lodge, particularly the requirements for English language and Australian studies. Please refer to our website for more information.

Once you lodge a new application please advise this office what you would like to do about your subclass 885 application, whether you would like to withdraw or proceed with the application.

23    The next day (4 December 2008), the applicant sought assistance from the Department as to how he could correct the “mistake” in his subclass 885 visa application which he said he had made. He referred to Form 1023 in the Migration Regulations and to information available at the Department’s website. He then said:

My English test result and study requirements have already been assessed by the NT Government for issuing of the sponsorship and they found it as suitable for 487 visa.

24    On 5 December 2008, the Department sent an email to the applicant in which the Department said (omitting formal parts):

Ms Roberts has forwarded your email to me for a response.

While it is possible to correct mistakes made in visa applications, this does not include changing an application from one class to a different visa class. This is not to be viewed as a correction of an error within an application, but it is a completely new application.

The reason why it is not possible to change to a different class of visas after lodgement, is because different visa classes have different validity criteria.

When an application is received, it is checked for validity using schedule 1 of the relevant visa class. For example, visa class VB currently includes the following validity criterion:

Item 1136. Skilled (Residence) (Class VB)

(8) Subclasses:

885 (Skilled – Independent)

886 (Skilled – Sponsored)

887 (Skilled – Regional)

This means this schedule only applies to the above mentioned subclasses.

The current validity criteria for the VC class of visas, includes the following:

Item 1229. Skilled (Provisional) (Class VC)

(10) Subclasses:

485 (Skilled – Graduate)

487 (Skilled – Regional Sponsored)

It is not possible to meet the validity criteria of a subclass of visas that is not mentioned in the respective schedule for a visa class.

It would not be a problem to change subclasses, but it is not possible to change classes of visas, as your application would not be valid.

I have attached the full validity criteria of both classes of visas (see below).

(See attached file: Items 1229 and 1336.doc)

If you wish to apply for a VC 487 visa, you will need to make sure that you meet the criteria for this visa, eg. in relation to the 2-year study rule and English language requirements. For example, you must apply for the visa within 6 months of completing your course, and you must have paid the fee for English language training to the relevant state or territory agency before lodging the application, if you wish to claim concessional competent English.

Regarding the sponsorship, please speak to the relevant NT department. Once they have accepted the sponsorship, they will forward it to us.

I hope this information helps you in making a decision for further action.

25    Further exchanges of emails between the applicant and the Department ensued. In his emails to the Department, the applicant repeatedly sought to amend his visa application in order to convert it into an application for a subclass 487 visa and the Department repeatedly told him that, if he wished to apply for a subclass 487 visa, he would have to lodge a fresh application in which he specifically applied for such a visa and that he could not simply alter his subclass 885 visa application to render it a valid application for a subclass 487 visa. The Department also informed the applicant that, in order to satisfy the relevant prescribed criteria applicable to the grant of a subclass 487 visa, the applicant would need to establish to the satisfaction of the Department that he met the 2–year study requirement in the period of six months ending immediately before the day upon which the application was made and that he met the relevant English language requirements.

26    That exchange of emails concluded in January 2009 with the applicant continuing to press his case and the Department adhering to the position which it had explained in its emails in November and December 2008.

27    On 19 February 2009, the delegate refused to grant a subclass 885 visa to the applicant. The delegate came to that decision because the applicant had not demonstrated that his English language skills were at the “Competent” standard at the time when he lodged his subclass 885 application (viz as at 30 June 2008). The delegate went on to determine whether the applicant satisfied the requirements applicable to the grant of a Skilled (Residence) Sponsored (Subclass 886) visa or Skilled (Residence) Regional (Subclass 887) visa and concluded that he did not. These latter two subclasses are the remaining subclasses in Class VB.

28    On 11 March 2009, the applicant applied to the Tribunal for review of the delegate’s decision. After extending to the applicant a considerable number of indulgences in the period from March 2009 to January 2011, the Tribunal affirmed the delegate’s decision on 4 January 2011.

29    The applicant then applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision given on 4 January 2011. On 4 April 2011, by consent, a Federal Magistrate quashed the Tribunal’s decision and remitted the matter to the Tribunal to be reconsidered according to law.

The Tribunal’s Decision of 21 October 2011

30    On 21 October 2011, the Tribunal again affirmed the decision of the delegate not to grant to the applicant any Skilled (Residence) Class VB visa.

31    In its Reasons for Decision, after referring to the relevant law, the Tribunal commenced its consideration of the applicant’s claims and evidence. At [20]–[24] of its Reasons, the Tribunal said:

20.     The applicant appeared before the Tribunal on 23 June 2011 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The oral evidence before the Tribunal is summarised below.

21.     The Tribunal explained to the applicant the ‘competent English’ requirement and asked him whether he had competent English. The applicant said that he intended to apply for the subclass 487 visa and he has achieved the level of English required. The Tribunal pointed out that the only decision before it is the decision with respect to the subclass 885 and that is the only decision that it has the power to review. The Tribunal noted that the there is no decision with respect to the subclass 487 application. The Tribunal pointed out that if he believed there should be another decision, that is something that he should take up with DIAC. The applicant said that before the decision was made, he contacted DIAC and explained that he had made a mistake and he was told that DIAC did not have the power to change the class of visa. The Tribunal again explained that it could only review the decision that was before it and the only decision what has been made was with respect to the Subclass 885 visa. The Tribunal again asked the applicant whether he had competent English. The applicant said that he did not have competent English.

22.     The representative stated that the applicant had presented evidence that the application should have been considered against subclass 487 and not subclass 885.

23.    On 30 June 2011 the Tribunal received a further submission from the applicant. The applicant stated that the application fee is the same for the subclass 885 and subclass 487 application and it is not correct to assume that he paid for the subclass 885 visa. He stated that the Department agreed with the integrity of his submission that he applied for the subclass 487 visa and the Tribunal should not give scrutiny to the same issues. The applicant stated that due to internal policy, the Department could not allow him to change the class of visa from Class VB to class VC and he requested the Tribunal to review the policy and direct the Department to assess the application against subclass 487. The applicant stated that the Tribunal failed to have regard to the decision of the Federal Magistrates Court in his case and that he sought an order to quash the first Tribunal’s finding that it had no jurisdiction to consider the Class VC application and the decision was made by consent. The applicant also referred to s.35C of the Acts Interpretation Act 1901 indicating that strict compliance with the form is not required and that substantial compliance is sufficient, which was agreed to by DIAC. The applicant submitted that the first Tribunal refused to review application against Subclass 887 [sic] and the FMC found this to be a mistake and this is binding on the present Tribunal. The applicant enclosed various documents in support of this submission.

24.     The Tribunal subsequently wrote to the applicant informing him that it would proceed to the decision on or after 13 October 2011. No further material has been received at the time of this decision.

32    The Tribunal then set out its Findings and Reasons. The Tribunal rejected the applicant’s submissions that his application should have been considered as an application for a subclass 487 visa. The Tribunal concluded that the applicant had made a valid application for a subclass 885 visa in accordance with the relevant requirements of the Migration Regulations. The Tribunal held that the applicant’s application for a subclass 885 visa was the only visa application considered by the delegate and that the delegate’s decision to refuse to grant such a visa was the only decision which was capable of being reviewed by the Tribunal. The Tribunal had no jurisdiction to review any other decision. The Tribunal also rejected the applicant’s contention that it was open to him to alter his application for a subclass 885 visa so as to render it a valid application for a subclass 487 visa.

33    At [29]–[38] of its Reasons, the Tribunal said:

29.    The issue in the present case is whether the applicant meets cl. 885.213.

30.    When applying for the visa, the applicant nominated the occupation of a Computing Professional (ASCO 2231-79). That occupation is not in the Major Group IV in ASCO and the Tribunal is not satisfied that the applicant meets cl. 885.213(a) and cl. 886.213(a). It is thus unnecessary to consider whether the applicant has vocational English.

31.    Clause 885.213(b) and cl. 886.213(b) require the applicant to have competent English. The applicant confirmed in his oral evidence to the Tribunal that he has not achieved the score of at least 6 in each component of an IELTS test. He was given an opportunity to undertake another language test however at the time of this decision, almost four months after the applicant appeared before the Tribunal, he has not provided evidence of having achieved that score.

32.    There is no evidence before the Tribunal that at the time of the application or at the time of this decision, the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening. The Tribunal is not satisfied that he meets r. 1.15C(a)(i).

33.     There is no evidence before the Tribunal to suggest that at the time of the application or at the time of decision, the applicant had achieved a score of at least ‘B’ in each of the four components of an Occupational English Language test conducted not more than 2 years before the day on which the application was made, which is the score and the language test specified by the Minister in writing. The Tribunal is not satisfied that the applicant meets r. 1.15C(a)(ii).

34.     When applying for the visa, the applicant stated that she [sic] held a passport of Bangladesh. There is no evidence before the Tribunal that the applicant held a passport of a type specified by the Minister in writing for the purpose of paragraph 1.15C(b). The Tribunal is not satisfied that the applicant meets r. 1.15C(b).

35.    The Tribunal is not satisfied that the applicant has competent English within the meaning of r. 1.15C. The applicant does not meet cl. 885.213(b) and cl. 886.213(b). The Tribunal is not satisfied that the applicant meets cl. 885.213 and cl. 886.213.

36.     There is no evidence before the Tribunal that the applicants had lived in a specified regional area for a total of at least 2 years as the holder of 1 or more of the prescribed type of visas. The Tribunal is not satisfied that the applicants meet cl. 887.212.

CONCLUSIONS

37.     Given the findings above, the Tribunal affirms the decision under review.

DECISION

38.     The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

The Applicant’s Case before the Federal Magistrate

34    On 17 November 2011, the applicant filed in the Federal Magistrates Court an application for judicial review of the Tribunal’s decision. He raised only two grounds of review, namely:

The grounds of the Application are:

1.    The Second Respondent failed to exercise the jurisdiction invested in it by the Migration Act in that it was clear that the nomination of 885 and not 487 as the visa being applied for by the applicant was a mistake by the applicant.

2.    The Second Respondent made jurisdictional error in determining that it did not have jurisdiction to make a decision in relation to whether the applicant was entitled to a class 487 visa.

35    The applicant did not challenge the correctness of the Tribunal’s decision in the event that the Federal Magistrates Court should conclude that his 30 June 2008 visa application was, in truth, an application for a subclass 885 visa.

36    The matter was listed for directions before the Federal Magistrate on 14 February 2012 at which time the applicant was represented by Counsel. On that occasion, the Federal Magistrate fixed the matter for hearing before her on 20 March 2012 and made directions allowing the applicant to amend his application and to file further affidavit evidence in support of that application by 28 February 2012. She also directed that the applicant file and serve Written Submissions by no later than 14 days prior to the hearing (ie by 6 March 2012). The applicant did not file any Amended Application, any affidavit evidence or any submissions.

37    On 20 March 2012, when the matter was called on for hearing before the Federal Magistrate, there was no appearance either by or on behalf of the applicant. Given the absence of the applicant and the lack of activity on the part of the applicant since 14 February 2012, her Honour dismissed the applicant’s application for judicial review pursuant to reg 13.03C(1)(c) of the FMC rules.

38    The applicant had sent a letter to the Court and to the Minister’s solicitor dated 18 March 2012 by which he sought an adjournment of the hearing fixed for 20 March 2012. In that letter, the applicant said that he was then in Bangladesh and was “seriously ill”. He enclosed a medical certificate with the letter. Her Honour found the medical certificate to be unsatisfactory and declined to grant the adjournment sought by the applicant.

39    The applicant does not complain in this Court about her Honour’s decision to refuse his application that the hearing be adjourned. Rather, as I have already said, he challenges her Honour’s subsequent decision made on 24 April 2012 to refuse to set aside the orders which she made on 20 March 2012.

40    On 17 April 2012, pursuant to reg 16.05 of the FMC rules, the applicant applied to the Federal Magistrates Court for an order setting aside the orders made by the Federal Magistrate on 20 March 2012 and for an order transferring the proceeding to the Northern Territory Registry of that Court. At the hearing of that application, the applicant relied upon two affidavits affirmed by him: The first of those affidavits was affirmed on 17 April 2012 and the second of those affidavits was affirmed on 23 April 2012.

41    In the Federal Magistrates Court, the applicant’s explanation for his non-appearance on 20 March 2012 was:

(a)    As at 14 February 2012, he had planned to return to Bangladesh in the near future for relatively minor surgery. As at that date, he anticipated that his case in the Federal Magistrates Court would not be heard until April 2012, at the earliest. He believed that he could travel to Bangladesh, undergo the planned surgery and return to Australia by early April 2012. However, at that time, he did not inform either his migration agent or the barrister who appeared for him on 14 February 2012 of his plans. The evidence does not reveal whether he ever told either of those persons that he intended to travel to Bangladesh and would not be in Australia for the hearing on 20 March 2012 or whether those persons were simply not retained to represent the applicant at that hearing. Furthermore, he accepted that he was told on 14 February 2012 that his case had been fixed for hearing on 20 March 2012. He was also informed of the pre-trial directions made by her Honour. Nonetheless, he travelled to Bangladesh in February 2012.

(b)    He found it difficult to appoint another lawyer while he was in Bangladesh receiving medical treatment.

(c)    Because of the medical procedure which he had undergone, he could not return to Australia until 31 March 2012.

42    In the medical certificate from the applicant’s treating doctor in Bangladesh dated 5 April 2012 which was tendered by the applicant before her Honour, that doctor said:

(a)    He had first seen the applicant on 23 February 2012.

(b)    He performed the necessary medical procedure on 27 February 2012.

(c)    The applicant was discharged from hospital on the same day. (The certificate states that he was discharged on “27th March” but this is obviously an error as the doctor also stated immediately after referring to the applicant’s discharge from hospital that the applicant had seen him after his surgery on 6, 11 and 17 March.)

43    On 24 April 2012, the Federal Magistrate heard and determined the applicant’s application to set aside the orders which she had made on 20 March 2012.

44    After referring to her earlier decision and to certain procedural matters, at [8] of her Reasons for Judgment, her Honour commenced to consider the evidence before her in support of the applicant’s application. At [8], her Honour noted that, on 14 February 2012, when the applicant’s application for judicial review was fixed for hearing on 20 March 2012, the applicant had been represented by Counsel and had not suggested to the Court at that time that 20 March 2012 was inconvenient. As her Honour observed, this was no doubt because the applicant had not told his legal representatives that he did not intend to be in Australia on 20 March 2012.

45    At [12]–[14] of her Reasons, her Honour summarised the grounds upon which the applicant would rely in support of his application for judicial review if he were allowed to litigate those grounds as a result of her Honour setting aside the orders which she had made on 20 March 2012. At [12]–[13], her Honour said:

12.    Mr Chia has come to Court today on behalf of the applicant without a draft amended application in a form that can be properly considered. However, Mr Chia did outline for the Court the grounds that an amended application may raise.

13.    Those proposed grounds were as follows:

a)    Whether or not, at the time of making his visa application on 30 June 2008, the applicant in fact made a valid application for a subclass 487 visa, despite the fact that on the face of the application it was an application for a subclass 885 visa. Mr Chia’s argument centres around various subsequent correspondence between the applicant and the Department of Immigration and Citizenship (“the Department”) about the mistake the applicant says that he made relating to the lodging of that visa.

b)    The decision of a differently constituted Migration Review Tribunal made on 4 January 2011 operated in some way as an issue estoppel against the first respondent. I note that, by consent, that decision was set aside and the matter remitted to the Migration Review Tribunal for determination according to law. Mr Chia submitted that the reasons for that remittal may be relevant and that the applicant wished an opportunity to explore those reasons. It is difficult to contemplate how those reasons could be relevant to identifying a jurisdictional error on the part of the Tribunal decision, the subject of this proceeding and none was identified by Mr Chia.

c)    There was an error in the delegate’s decision made on 19 February 2009 that contained an error relating to the statement of the law. Mr Chia submitted that, in the event that the applicant succeeded on its first ground that the delegate was required to consider the applicant’s application as if for a subclass 487 visa, then the decision of the delegate made on 19 February 2009 amounted to a refusal of the application for a visa and was therefore a Migration Review Tribunal reviewable decision.

46    At [15] of her Reasons, her Honour said that she was by no means persuaded that the explanation offered by the applicant for his failure to attend Court on 20 March 2012 was satisfactory.

47    At [16], her Honour reviewed the history of the applicant’s application for a skilled migrant visa, noting at the outset that Grounds 1 and 3 foreshadowed by Counsel for the applicant could succeed only if her Honour came to the view that the visa application received by the Department on 30 June 2008 was in substance an application for a subclass 487 visa.

48    Her Honour’s conclusion on this point is set out at [18] of her Reasons as follows:

18.    In light of that evidence and in light of the application for the visa, received by the Department on 30 June 2008, there could be no other conclusion, other than that the applicant was applying for a subclass 885 application. The correspondence shows that he was informed that he could withdraw that application. There is no evidence to suggest that he ever did so or took any further step to seek to apply for a subclass 487 visa.

49    At [19]–[20], her Honour rejected an argument advanced by Counsel for the applicant that s 25C of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act) was engaged in the circumstances of this case in a way which required or permitted the Court to hold that the application for a visa which the applicant had made on 30 June 2008 was in fact an application for a subclass 487 visa.

50    Her Honour went on to hold that Ground 2 foreshadowed by Counsel for the applicant had no prospect of succeeding (see [22]).

51    At [23]–[24], her Honour summarised her conclusions in the following way:

23.    I have given Mr Chia’s submissions on the proposed grounds, and their prospects of success, careful consideration. However, I note that there is no formal draft amended application before the Court and there has been no compliance whatsoever with any direction made by this Court by the applicant.

24.    In all the circumstances, and in light of the failure of the applicant to provide a satisfactory explanation for his failure to appear, I am not persuaded that the orders sought in the Application in a Case should be made and accordingly that application should be dismissed with costs.

The Application in this Court

Extension of Time

52    The decision of the Federal Magistrate given on 24 April 2012 was an interlocutory decision in relation to a matter of practice and procedure requiring the exercise of a discretion. Subsection (1A) of s 24 of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment of that type unless the Court or a Judge gives leave to appeal. Division 35.2 FCR governs applications for leave to appeal from (inter alia) interlocutory judgments of the Federal Magistrates Court. Rule 35.13(a) provides that an application for leave to appeal from a judgment or order of that Court must be filed within fourteen (14) days after the date on which the judgment was pronounced or the order was made. Rule 35.14 FCR is in the following terms:

35.14 Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)    The application may be made during or after the period mentioned in rule 35.13.

(3)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

(d)    a draft notice of appeal that complies with rules 36.01 (1) and (2);

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

Note 1    The Court may grant an extension of time, and hear and determine the application for leave to appeal, at the same time.

Note 2    An application under rule 35.12 or 35.14 will be heard and determined by a single Judge unless the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it appropriate to hear and determine the application.

Note 3     File is defined in the Dictionary as meaning file and serve.

53    In broad terms, the applicant has complied with the requirements of r 35.14 FCR.

54    Rule 35.14 differs from the previous rule of Court pursuant to which an extension of time for the filing of an application for leave to appeal from a judgment of the Federal Magistrates Court might be granted. The previous rule was O 52 r 5(3).

55    Order 52 r 5 provided that:

5    Time for filing application

(1)    This rule applies only to applications where an appeal from the judgment lies to the Court only with leave.

(2)    An application shall be filed within 21 days after:

(a)    the judgment was pronounced; or

(b)    a later date fixed for that purpose by the court or judge who pronounced the decision.

(3)    Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with.

56    The present rule (r 35.14 FCR) makes explicit the requirement that an applicant for an extension of time bears the onus of persuading the Court that, in all the circumstances of his or her case, an extension should be granted.

57    In Gallo v Dawson (1990) 93 ALR 479 at 480–481, which was a case where the applicant for an extension of time had an appeal as of right against the order of the primary judge, McHugh J said, after referring to the relevant rule of Court:

… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194–5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263–4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

58    Although the present case involves an application for leave to appeal, the reasoning of McHugh J in Gallo v Dawson is apt.

59    In the present case, the applicant was out of time by only eight days.

60    In evidence tendered before me, the applicant said that, at all material times, he resided in the Northern Territory although he was relevantly represented by Counsel on and immediately after 24 April 2012. He said that the Federal Magistrate’s revised Reasons for Judgment were not received by his Counsel (who is based in Sydney) until 7 May 2012. He also said that, given that he had been advised that there were significant differences between her Honour’s judgment as announced and her Honour’s judgment as revised, he did not have sufficient time prior to 8 May 2012 properly to consider whether he should seek leave to appeal and, if so, on what grounds.

61    I am conscious of the fact that the decision in respect of which the applicant seeks leave to appeal was a decision to refuse to set aside orders made in his absence in circumstances where he was well aware of the fixture, did nothing to prepare his case and offered no satisfactory explanation for his failure to attend at Court. These circumstances are all relevant to my consideration of the question of whether a refusal to grant an extension of time would cause injustice to the applicant. In addition to weighing these factors, I must also consider the applicant’s prospects of success in his application for leave to appeal.

62    The applicant’s delay in filing his application for leave to appeal in the present case is not lengthy. His explanation for the delay is reasonable. It seems to me that, if the applicant’s appeal has sufficient prospects of success to warrant the grant of leave to appeal, an extension of time should be granted to him.

63    For these reasons, I consider that the critical question to be determined in the present case is whether the applicant’s prospects of success in his appeal are sufficient to justify a grant of leave to appeal.

Leave to Appeal

64    In Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 at [26]–[30] (pp 266–267), the Full Court said:

26    In this court, it is well established that the relevant test (or “litmus test”) for whether leave to appeal from an interlocutory judgment will be granted, comprises the following two integers:

(1)     whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2)     whether substantial injustice would result if leave were refused supposing the decision to be wrong.

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; 104 ALR 621 at 622–4; 23 IPR 1 at 3–5 (Décor).

27    In Bienstein v Bienstein (2003) 195 ALR 225; 30 Fam LR 488; [2003] HCA 7 at [29] (Bienstein), McHugh, Kirby and Callinan JJ said that:

29    … The principles that govern the grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.

28    The test for leave to appeal explained by the High Court in Bienstein is the same test as the Full Court had earlier articulated in Décor.

29    As the Full Court itself said in Décor, the test which it described is appropriate for the general run of cases. The test should not, however, be applied as if it were some hard and fast rule. Each case must be considered on its merits.

30    In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572, French J (as he then was) (with whom Beaumont and Finkelstein JJ agreed), when dealing with the principles which generally govern the grant of leave to appeal from an interlocutory decision in relation to a matter of practice and procedure, said (at [43]–[44]):

43     Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question—Carr at 248 (Gibbs CJ) 256 (Mason J). But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pretrial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pretrial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties “a prima facie case exists for granting leave to appeal”—Ex parte Bucknell (1936) 56 CLR 221 at 225; [1937] ALR 332 at 334; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; 104 ALR 621 at 624; 23 IPR 1 at 5; Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance—Little v Victoria [1998] 4 VR 596 at 598–600 and 601 (Callaway JA, Buchanan JA agreeing).

44     The Full Court in Minogue restated the two tests enunciated in Décor Corporation which have been developed to justify the grant of leave to appeal from an interlocutory order. The first is that the decision at first instance should be attended with sufficient doubt to warrant its reconsideration on appeal. The second is that substantial injustice would result if leave were refused. The present case is one in which the decisions in question have allowed causes of action to go forward which the respondents and other parties say are untenable and should be struck out. It was contended for BHP that, in so far as the decision of 3 March 2000 involves rejection of the contention that the s 52 claim is colourable and that the Court lacks accrued jurisdiction to deal with the common law claim, this was a decision that fully determined the rights of the parties and that leave to appeal was not required in respect of it. The “decisions referred to however were findings underlying an order, the relevant order being to allow the amendments to the statement of claim.

65    In Ex parte Bucknell (1936) 56 CLR 221 at 223–225, the High Court (Latham CJ and Rich, Dixon, Evatt and McTiernan JJ) considered the principles which should govern the grant of leave to appeal from an interlocutory judgment of a Supreme Court of a State or Territory pursuant to s 35(1) of the Judiciary Act 1903 (Cth). In particular, at 225, the Court said that, to give judgment on demurrer holding one of several pleas to be bad or to give leave to sign summary judgment, may well affect rights of sufficient value to justify leave to appeal. The Court also reinforced the proposition that, when an application for leave to appeal is under consideration, the Court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.

66    In the present case, the decision of the Federal Magistrate in respect of which leave to appeal is sought has the practical effect of determining on a final basis the applicant’s claim for judicial review of the Tribunal’s decision given on 21 October 2011. For this reason, it is necessary, in my view, for me to examine closely the applicant’s prospects of success in the appeal, were I to grant leave to appeal as sought.

67    In his draft Notice of Appeal forming part of his Application for Leave to Appeal, the applicant articulated the following grounds of appeal:

Grounds of appeal

1.    In considering whether the appellant had provided a satisfactory explanation for his failure to attend the hearing on 20 March 2012, the Federal Magistrate erred in taking into account an irrelevant consideration or irrelevant considerations.

Particulars

(1)    At [15], the Federal Magistrate relied upon a finding at [10] that the appellant had not complied with a previous direction that required him to “notify the Court and the first respondent of any change of address for service or contact details immediately upon any such change”. Given the explanation provided in the appellant’s affidavits of 17 April 2012 and 23 April 2012, compliance with that direction of the Court would have made no difference to the Appellant’s ability to attend the hearing on 20 March 2012. Further, there was no evidence the appellant was not contactable and the Federal Magistrate’s reasons record the fact that the appellant did in fact contact Her Honour’s associate prior to 20 March 2012.

(2)    The Federal Magistrate relied upon a finding at [11] that, on his own evidence, the appellant knew at the time of the directions hearing on 14 February 2012 that he would be leaving Australia to go to Bangladesh but failed to inform his legal representatives of the same. However, in circumstances where the appellant had a legal representative who could appear for him at the final hearing, as at 14 February 2012 it was not necessary for the appellant to have provided instructions on his own availability to attend the hearing on 20 March 2012.

2.    In exercising the Federal Magistrates Court’s discretion under regulation 16.05 of the Federal Magistrates Court Rules, the Federal Magistrate applied the wrong test.

Particulars

(1)    Although the Federal Magistrate held at [15] that she was not persuaded the excuse offered by the appellant was reasonable, in reaching this finding Her Honour at [2]-[3] and [11] referred to, and adopted, her reasoning of 20 March 2012 in Khondoker v Minister for Immigration & Anor [2012] FMCA 250 in terms that indicate she considered those matters equally applicable to the exercise of the Federal Magistrates Court’s discretion under regulation 16.05.

(2)     The Federal Magistrate placed primary emphasis on the appellant’s willingness to prepare the matter for final hearing.

(3)    Read together, paragraphs [11] and [15] of Her Honour’s reasons indicate that the criteria for exercise of the discretion in regulation 16.05 were conflated with those relevant to consideration of the appellant’s earlier application for adjournment considered on 20 March 2012.

3.    On the evidence before the Federal Magistrate, it was not reasonably open for Her Honour to have found at [18]-[19] that, when the appellant became aware that he had ticked the wrong box on his visa application, he could have, but took no steps to, apply for a subclass 487 visa.

Particulars

(1)    The Court Book included evidence that the acknowledgment letter referred to at [16] of the Federal Magistrate’s reasons was never received by the appellant and returned to the first respondent undelivered.

(2)    The Court Book included a copy of an email sent by the appellant to the first respondent’s department on 21 August 2008, which noted that he had not received any acknowledgment letter.

(3)    The Court Book included email correspondence commencing on 19 November 2008 which clearly disclosed that, when the appellant first realised he had ticked the wrong box on his application form, he sought to correct that mistake, was informed that he would have to lodge a new application and that the time for making such an application had expired.

4.    In holding that the appellant had no reasonable prospects of success, the Federal Magistrate failed to consider a relevant consideration which was whether the appellant could succeed if allowed to amend his grounds of review.

Particulars

(1)    It is clear from the transcript that, at the hearing on 24 Apri1 2012, the appellant’s legal representative had only recently been briefed, had not been provided a copy of the first respondent’s Court Book and required further time to properly formulate amended grounds of review.

(2)    In considering whether the appellant had reasonable prospects of success, the Federal Magistrate was obliged to but did not consider whether amendment of the appellant’s application could have raised an arguable case

5.    The circumstances of the admission of the first respondent’s evidence and/or the publication of the Federal Magistrate Court’s Reasons for Judgment were capable of giving rise to a reasonable apprehension of bias.

Particulars

(1)    In the course of giving extempore reasons for judgment, the Federal Magistrate paused and requested that the first respondent tender evidence in the form of his Court Book

(2)    The ex tempore reasons for judgment of the Federal Magistrate given on 24 April 2012 were substantially revised in the Reasons for Judgment published on or about 3 May 2012, giving rise to the reasonable perception that on 24 April 2012 the Federal Magistrate’s consideration of the evidence and the issues had not completed

68    Any appeal in this Court from her Honour’s decision made on 24 April 2012 would be by way of rehearing. In order to succeed in such an appeal, the appellant would have to demonstrate that the judgment of the Federal Magistrate was infected with appellable error (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[25] (pp 434–435) (per Allsop J)).

69    The power to set aside orders pursuant to reg 16.05 of the FMC rules is discretionary. A party seeking to set aside a judgment given in his or her absence is required to explain why he or she was absent and to demonstrate that he or she has some prospects of success in his or her case. This approach is reflected in the reasoning of Emmett J in Re Daskalovski; Ex parte The Austral Brick Co Pty Ltd [1998] FCA 782. In that case, Emmett J declined to set aside a sequestration order in circumstances where the bankrupt’s estate had already been administered in bankruptcy. The basis for setting aside the order which Emmett J had under consideration was O 35 r 7 of the former Federal Court Rules. That rule was relevantly in substantially the same terms as reg 16.05 of the FMC rules.

70    When considering the applicant’s prospects on appeal, upon the assumption that leave might be granted, it is not enough that this Court might have made a different decision had it been in the position of the primary judge (House v The King (1936) 55 CLR 499 at 504–505 per Dixon, Evatt and McTiernan JJ). As Dixon, Evatt and McTiernan JJ said in House v The King at 505:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated.

See also Norbis v Norbis (1986) 161 CLR 513 at 518–519 per Mason and Deane JJ.

71    In later cases, Justices of the High Court have said that, in respect of appeals against decisions involving discretionary judgment, there is a strong presumption in favour of the correctness of the decision appealed from and that that decision should be affirmed unless the appeal court is satisfied that it is clearly wrong (see Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J; and Mallet v Mallet (1984) 156 CLR 605 at 634 per Wilson J).

72    I now turn to consider the applicant’s putative grounds of appeal.

Ground 1

73    The essence of the Federal Magistrate’s reasoning which led her to conclude that the applicant had failed to provide a satisfactory explanation for his absence on 20 March 2012 was that:

(a)    The applicant was well aware on 14 February 2012 that he would not or, at the very least, may not be available to attend a hearing on 20 March 2012. Yet, he took no steps to instruct his legal representative to inform the Court on 14 February 2012 of that fact nor did he personally take any steps to inform the Court of that fact. He took no steps until 18 March 2012 to inform the Court that he would not be attending the hearing on 20 March 2012.

(b)    Although the applicant did receive medical treatment in Bangladesh in February and March 2012, he elected to do so knowing that his application had been fixed for hearing on 20 March 2012 and took no steps to inform the Court until the day before the hearing that he would be unable to attend.

74    In my view, the Federal Magistrate was entitled not to accept the applicant’s explanation for his failure to attend on 20 March 2012 and did not take into account irrelevant considerations when doing so.

Ground 2

75    I do not think that the Federal Magistrate applied the wrong test when considering the applicant’s application made pursuant to reg 16.05 of the FMC rules to set aside the 20 March 2012 orders. In my view, the Federal Magistrate was entitled to take into account some of the considerations which had actuated the decision which she had made on 20 March 2012 to refuse the applicant’s adjournment application.

76    The applicant has no prospect of succeeding on Ground 2.

Ground 3

77    As far as Ground 3 is concerned, I do not think that the Federal Magistrate held that, on and after 19 November 2008, the applicant could have, but did not take steps to, apply for a subclass 487 visa. All that the Federal Magistrate decided was that there was no evidence to suggest that he ever took any steps to apply for such a visa after mid November 2008.

Ground 4

78    Contrary to the assertions contained within the Particulars to this ground, the Federal Magistrate did consider all of the grounds which Counsel advanced to her, even though some of those grounds were not raised in the form of Application actually before her Honour and even though no adequate Amended Application or draft Amended Application was available. At [13], her Honour summarised all of the grounds which Counsel suggested might be available were an amendment allowed.

79    For these reasons, I do not think that the applicant has any prospect of succeeding in any appeal based upon Ground 4.

Ground 5

80    This ground raises two matters which the applicant submitted demonstrate apprehended bias on the part of the Federal Magistrate.

81    The first complaint is that her Honour permitted the tender of the Court Book after she had commenced delivering reasons for judgment ex tempore. That matter, whether it is considered on its own, or whether it is considered together with the other matter relied upon by the applicant as constituting apprehended bias, is not capable of constituting bias in the relevant sense.

82    The second matter relied upon by the applicant is that, according to his Counsel, her Honour substantially revised her reasons for judgment before publishing those reasons in early May 2012.

83    The applicant did not attempt to prove by evidence tendered before me the precise terms of the ex tempore reasons delivered by her Honour on 24 April 2012. For this reason, it has not been possible to compare that version of those reasons with the revised reasons published by her Honour, had it been appropriate for me otherwise to do so. Prior to the hearing before me, the applicant had made a request of her Honour’s Associate, of Auscript and of this Court’s Registry for a copy of the transcript of her Honour’s ex tempore reasons delivered on 24 April 2012. The transcript of her Honour’s ex tempore reasons was not produced pursuant to those requests.

84    The applicant did not make an application to me for access to the transcript of her Honour’s reasons as announced in Court. Had he done so, on the material before me, I would have refused that application. My reasons for this view may be summarised as follows:

(a)    Ordinarily, the transcript of ex tempore reasons is never published or made available to the parties or the public.

(b)    What is published to the parties and to others is the transcript of the judgment as corrected and approved by the judge.

(c)    If it can be shown that, after delivering judgment and after making orders as a consequence of that judgment, the judge had in substance rewritten his or her judgment so as to put a completely different complexion on the issues in dispute, then the appeal court may think it both proper and necessary to look at the transcript of the judgment in its original form. But an application for access to the transcript in its original form would have to be supported by cogent evidence. There would have to be evidence from someone who was present at the trial and heard the judgment (preferably somebody who himself or herself took a note of the judgment) and who was able to say, and say in evidence, that the official transcript as approved by the judge was substantially different from what the judge actually said when he or she delivered his or her oral judgment at the end of the hearing.

(d)    Subject to the above, a judge has considerable licence to revise the transcript of an ex tempore judgment so as to ensure that the judgment ultimately published accurately reflects not merely what the judge actually said but also what the judge had intended to say.

85    I take the principles which I have extracted at subpars (a) to (d) of [84] above to be supported by the following authorities, namely: Bromley v Bromley [1965] P 111 at 114–115 (per Willmer LJ) and at 116 (per Danckwerts LJ and also per Davies LJ); Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569 at 1577–1578 (per Sir Richard Scott V-C with whom Roch and Henry LJJ agreed); and Bar-Mordecai v Rotman [2000] NSWCA 123 at [188]–[196] (per Sheller, Stein and Giles JJA).

86    Although there was no evidence before me to sustain this potential ground of appeal, Counsel did endeavour to inform me from the Bar Table of the substance of the allegedly impermissible substantial alteration made by her Honour to the ex tempore reasons for judgment delivered on 24 April 2012 when she came to deliver her revised reasons. Although there was no evidence to support this ground of appeal, I invited Counsel to articulate the substance of the alleged alteration. In response to my invitation, Counsel described the alteration in the following manner:

MR CHIA: It’s the relationship between the two considerations, namely the reasonable explanation for non-attendance and the reasonable prospects of success.

HIS HONOUR: In what sense?

MR CHIA: As I understood what her Honour said on the day, she said that the sole criteria is whether she was satisfied with the – whether there was a reasonable explanation. She was of the view that, having regard to the test in General Steel, she couldn’t say that the prospects of Mr Khondoker succeeding was so unattainable that it couldn’t possibly succeed but it wasn’t necessary for her to apply that test but nonetheless, in the interests of justice, she went on to consider the reasonable prospects of success. There’s a paragraph there that explains that relationship, that is not in the published reasons for decision. They, kind of – no test is actually stated. Her Honour doesn’t say what test she is applying, she just addresses those two considerations without explaining the relationship between the two and I think that is crucial in terms of determining whether the right test had been applied and whether there had been a substantial difference between the reasons – the ex tempore reasons – and the published reasons.

87    Even if I were permitted to pay some regard to Counsel’s explanation, I do not think that Counsel’s description of the difference is sufficiently precise to enable me to understand what material was omitted and whether it was of a character that might justify interference by this Court. In any event, even if the applicant’s assertion that her Honour altered her reasons impermissibly were made out, I do not think that the circumstances bespeak bias or apprehended bias.

88    The applicant has no prospect of succeeding on Ground 5.

Other Matters

89    In my view, the draft Notice of Appeal propounded by the applicant does not raise for consideration by this Court the question of whether her Honour erred when she concluded that the visa application made by the applicant which was received by the Department on 30 June 2008 was an application for a subclass 885 visa. Notwithstanding that fact, at the hearing of the applicant’s Application for an Extension of Time and for Leave to Appeal before me, Counsel argued that her Honour’s decision in this regard was clearly wrong. He submitted that the evidence before her Honour made clear that the applicant had made a mistake when he placed a cross in the box referable to the subclass 885 visa on page 1 of his visa application and that he had, at all times, intended to apply for a subclass 487 visa. Counsel submitted that this contention was amply supported by the email exchanges between the applicant and the Department commencing on 19 November 2008.

90    There is no doubt that, at all times from about mid to late November 2008, the applicant asserted to the Department that he had intended to apply for a subclass 487 visa but had mistakenly applied for a subclass 885 visa. It is the applicant’s case that, once he realised that this is what he had done, he should have been allowed to amend his visa application so as to convert it from an application for a subclass 885 visa to an application for a subclass 487 visa.

91    The Department informed the applicant on many occasions in late 2008 and in early 2009 that he could not convert his visa application from an application for a subclass 885 visa to an application for a subclass 487 visa. The Department informed the applicant that he would have to make a fresh application. He never did so.

92    It is common ground that, by 19 November 2008, the applicant could not succeed in securing a subclass 487 visa were he to apply for such a visa at that time or at any time thereafter because, as at that date, he no longer had the capacity to satisfy the requirements of that visa. In particular, he needed to make his application for a subclass 487 visa within six months of completing his course, that is to say, by no later than 11 October 2008.

93    It was submitted on behalf of the applicant that s 25C of the Interpretation Act would permit the applicant to convert his visa application into an application for a subclass 487 visa. I do not agree. Section 25C provides that, where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient. The section is not directed to a circumstance where a person incorrectly completes a form which actually or substantially complies with the prescribed form even if the error on the part of the person completing the form was inadvertent. Section 25C is directed to ameliorating the consequences of a person failing to comply with the prescribed form in circumstances where that person substantially complies with the requirements reflected in that form.

94    In my view, when the applicant placed a cross in the box referable to a subclass 885 visa in the visa application which was received by the Department on 30 June 2008, he plainly and unequivocally indicated that his application was for such a visa. Notwithstanding his later protestations, there is every reason to think that, in June 2008, the applicant intended to apply for a subclass 885 visa. Further, when regard is had to the way in which he claimed his points for the purposes of the points test and responded to items 67, 68 and 69 in that application, these conclusions are reinforced. There is no evidence that the applicant had obtained the relevant government sponsorship as at 30 June 2008 or that he had even attempted to obtain such sponsorship by that date. Nor is there any evidence that he was, at that time, being sponsored by an eligible relative. Even if I were to accept that the applicant did not intend to apply for a subclass 885 visa but had intended to apply for a subclass 487 visa (a matter about which I have considerable doubt), the consequences of the applicant’s actions in completing the form in the way in which he did would be the same. The question of which visa was being applied for must be determined by a consideration of his visa application as at the date when it was received by the Department viz as at 30 June 2008. It was incumbent upon the applicant to take whatever steps he needed to take in order to ensure that he was appropriately informed as to the subclass or class of visa which he required and that he completed his visa application in a way which truly reflected his intentions in this regard. Neither the form of application nor the way in which the applicant signified his intentions in that form created any ambiguity whatsoever.

95    Section 45 of the Act provides that, subject to the Migration Regulations, a non-citizen who seeks the grant of a visa must make application for a visa of particular class. That provision imposes an obligation upon the visa applicant to make clear to the Department precisely which visa is being sought. The Minister is then required to assess and determine that application, not some other application (see also s 46 of the Act). The Act does not permit a visa applicant to amend his or her application by fundamentally altering the subject matter of the application by changing the class of visa applied for.

96    In the present case, the visa application which the applicant submitted conveyed only one meaning—it was not susceptible to multiple interpretations. By the way in which he completed the prescribed form, the applicant told the Department that he wanted a subclass 885 visa. The delegate assessed and determined the applicant’s visa application on that basis. The Tribunal reviewed the delegate’s decision on the same basis. It had no jurisdiction to do otherwise (s 338 and s 348 of the Act).

97    For these reasons, were the applicant to seek to contend that the Federal Magistrate erred in regarding his prospects of success on this point as hopeless, he would, in my view, be unable to make good such a contention.

Conclusion

98    For all of the above reasons, I am firmly of the view that the applicant has failed to demonstrate that, were I to both extend the time within which he might apply for leave to appeal and also grant leave to appeal to him, he has any prospect of succeeding in establishing that the exercise of discretion by the learned Federal Magistrate miscarried in any of the ways discussed by the High Court in House v The King (as to which see [70] above). Therefore, I do not think that the decision of the learned Federal Magistrate is attended by sufficient doubt to warrant interference by this Court, nor do I think that injustice will be caused to the applicant in any way by the refusal of leave to appeal and the refusal of an extension of time within which to apply for leave to appeal. I refuse to grant an extension of time and indicate that, even if I had been minded to grant such an extension, I would nonetheless have refused leave to appeal.

99    Accordingly, I propose to dismiss the applicant’s application with costs.

Associate:

Dated:    22 June 2012