FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2013] FCA 1324

THE COURT ORDERS THAT:

1.    The application be refused.

2.    The applicant pay to the first respondent costs of the application.

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

REASONS FOR JUDGMENT

1    This is an application for an extension of time to file and serve a notice of appeal from a judgment of the Federal Circuit Court given on 29 August 2013.

2    That Court dismissed an application by the applicant to set aside a decision of the Migration Review Tribunal made on 19 March 2012 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant requires an extension of time because r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules) fixes a period of 21 days within which an appeal may be brought from a decision of the Federal Circuit Court. That time expired on 25 September 2013. Consequently, this application was made six days out of time. Rule 36.05 of the Rules enables the Court, in appropriate circumstances, to grant an extension of time within which to file a notice of appeal.

3    In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, the Court indicated that the discretion to extend time should be exercised having regard to the delay, the explanation for the delay, the prejudice to the respondent if the Court were to grant leave to appeal, and the merits of the proposed appeal.

4    In this case, there is no real explanation for the delay, although it is short, and there is no suggestion that the first respondent will be prejudiced in any material way if an extension of time were granted. There is simply no material to explain the delay. I would be reluctant to refuse leave to appeal in a matter such as the present where there is such a short delay, simply because the delay is unexplained. For reasons which appear below, I do not think that the applicant has any prospect of succeeding on his proposed appeal, even if an extension of time to appeal were granted. So I do not have to take into account adversely to him the absence of reasons for the delay.

5    The application was listed for hearing on 28 November and 6 December 2013. The applicant did not attend on either occasion. He left with the Registry on the day preceding each hearing a medical certificate certifying that he was unfit for work for a short period. The certificate of 5 December 2013 said he should be able to resume work on 9 December 2013. Neither certificate said that he was unfit to attend Court. To progress the matter, on 6 December 2013, I directed that the matter proceed on the papers and gave the applicant until 4:00 pm on 12 December 2013 to file and serve any further submissions he wished to make in support of his application. He has not taken up that opportunity.

6    In my view, the application for an extension of time to appeal should be refused, and the applicant should be ordered to pay the costs of this application.

7    Obviously, it is important to explain why I have reached that conclusion.

BACKGROUND

8    The applicant is a citizen of India. On 24 December 2010, he applied to the Department of Immigration and Citizenship for the visa.

9    At that time, the primary criteria for the relevant Subclass 572 visa included the requirement that he satisfy cl 572.223 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). One requirement, in cl 572.223(2)(a)(i) was that he provide evidence in accordance with the requirements specified in Sch 5A of the Regulations for the highest relevant assessment level applicable to him. The phrase “assessment level” is defined in Reg 1.03 as being the level of assessment specified under Reg 1.41 of the Regulations, which in turn provides for the Minister to specify by Gazette Notice the relevant assessment level. It cannot be said that the process is an easy one to follow, but there is no dispute that that is the appropriate process in this matter.

10     The Gazette Notice for Reg 1.41 in force at the time of the visa application was IMMI 10/003. For this applicant, and this Subclass 572 visa, the assessment level was “4”. The consequence is that, for the purpose of meeting the requirements in cl 5A405 of Sch 5A to the Regulations, the applicant had to provide evidence that he had “funds from an acceptable source” that were sufficient to meet the expenses incurred for the first 36 months relating to his course fees, living costs and school costs: see cl 5A405(1)(a). The terms “funds from an acceptable source” and “acceptable individual” are also defined in cl 5A405(2).

11    In addition, the applicant was required to satisfy the decision-maker that he was “a genuine applicant for entry and stay as a student” by reason of cl 572.223(2)(a)(ii), and further that while he held the visa he would have access to the funds demonstrated or declared in accordance with the requirements in Sch 5A: cl 572.223(2)(a)(iii).

12    The delegate of the first respondent on 11 February 2011, refused to grant the visa on the basis that the applicant did not satisfy cl 572.223 of the Regulations. It is not necessary to refer in any detail to the delegate’s decision, because it was reviewed on the merits by the Tribunal.

The Tribunal proceeding and decision

13    The review to the Tribunal was commenced by application on 25 February 2011. For reasons which are not clear, it took some time for the Tribunal to review the delegate’s decision. A hearing took place on 19 March 2012. The applicant attended with his migration agent, and gave evidence and made submissions in support of his application. In addition, the Tribunal received a written submission from the applicant through his migration agent on the morning of the Tribunal hearing, and a further written submission immediately following the Tribunal hearing. On that date, his migration agent also sent a further fax to the Tribunal seeking to correct an error in the calculation of funds as expressed in an earlier submission.

14    The Tribunal gave its decision on the same day as the hearing.

15    There is no suggestion that it did not correctly identify the relevant applicable statutory requirements, in particular cl 572.223 of Sch 2 of the Regulations.

16     Its conclusion, putting aside those matters of which it was satisfied, was that:

(1)    the applicant had not given evidence in accordance with the requirements in Schedule 5A for Subclass 572 and Assessment Level 4 in relation to the necessary financial capacity, and so did not satisfy the requirements of cl 572.223(2)(a)(i); and

(2)    there was no evidence that the applicant, whilst holding the visa, would have access to the funds demonstrated or declared in accordance with the Schedule 5A requirements relating to financial capacity, so he did not meet cl 572.223(a)(iii).

17    Consequently, it affirmed the decision under review.

Proceedings in the Federal Circuit Court

18    Ultimately, there were three grounds of review identified in the amended application of 5 December 2012:

(1)    that the Tribunal had made its decision in a hurry;

(2)    that the applicant was not given enough time to produce relevant documents, and

(3)    that the decision involved jurisdictional error.

19    The first two grounds of review were dealt with at some length, and ultimately led to the conclusion that the applicant had been accorded procedural fairness as prescribed by s 357A of the Act, and that the Tribunal had acted in a way that was fair and just.

20    The appellant had been notified of the hearing, he had been given the opportunity to be heard and to produce material, he had had the benefit of representation with his migration agent, and he had had the opportunity to produce further documentation in support of his claim to which he had referred in the hearing before the Tribunal. Those documents were said, at the hearing, to be immediately available so that the Tribunal had allowed only a short time following the hearing for them to be produced. Given the assertion that they were immediately available, the time allowed, the Federal Circuit Court found, was not unreasonable. There had been no additional request for further time to produce any documents.

21    Consideration of the third ground of review was a little complicated. Following the Tribunal decision, Patel v Minister for Immigration and Citizenship [2013] FCA 97 had been delivered. By reason of that decision, the first respondent accepted that the Tribunal had erred in its consideration of whether the applicant had shown that he had “funds from an acceptable source” through an overdraft facility. The Tribunal had taken the view, erroneously by reason of the decision subsequent to its decision, that an overdraft facility could not be considered in ordinary parlance as a loan and so could not be funds from an acceptable source.

22    However, the Federal Circuit Court identified that the Tribunal had expressed four reasons why the applicant did not satisfy the requirements of cl 572.223(2)(a) of Sch 2 of the Regulations, and that only one of those four reasons was affected by that error. The four reasons of the Tribunal, as identified by the Federal Circuit Court were:

(1)    there was no evidence as to the relationship, if any, between the applicant and the holder of the funds identified in certain term deposits to which the applicant referred held by that third party and no declaration of support provided by that third party, so there was no evidence upon which the Tribunal could be, or was, satisfied that the holder of those funds was “an acceptable individual” as defined in cl 5A405(2);

(2)    the amount of the funds being provided to the applicant in the form of nine term deposits totalling $16,932 was substantially less than the $21,100 required to meet cl 5A405(1)(a) and (b);

(3)    it was not apparent how the person providing the funding to the applicant could accumulate the asserted savings of INR900,000 on the basis of his regular income, so that even if the Tribunal had taken into account the overdraft facility (which was in the same name as the person providing the term deposits), the applicant would not have satisfied cl 5A405(1)(c); and

(4)    there was no evidence that the funds would be made available to the applicant as required by cl 572.223(iii) in any event.

23    Accordingly, as the identified error concerned issue (2) only, the Federal Circuit Court concluded that even if the Tribunal had asked itself the wrong question in relation to the overdraft facility, and had discounted it, it should refuse to set aside the decision of the Tribunal because the error could not possibly have made any difference to the Tribunal’s eventual decision.

Proposed grounds of appeal

24    There were two grounds of appeal expressed in the draft notice of appeal. The first concerned the obligation of the Tribunal to have afforded the applicant procedural fairness. The ground is, in a general way, simply a complaint that he was not afforded procedural fairness. It does not explain why that complaint is made. The second complains of the decision of the Federal Circuit Court that, despite its conclusion that the Tribunal had asked itself a wrong question by disregarding the evidence of the overdraft facility, it should nevertheless dismiss the application for judicial review.

CONSIDERATION

25    In my view, the applicant has no prospect of demonstrating that the Tribunal did not accord the applicant procedural fairness either as prescribed by s 357A of the Act or even if common law procedural fairness is the appropriate measure.

26    I have referred above at [19] to the Federal Circuit Court’s description of the processes of the Tribunal. They accord with both of those measures. It is not necessary to repeat them. More importantly, the processes accord with s 357A, which prescribes the requirements of procedural fairness applicable to the decision of the Tribunal and its processes: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214.

27    As to the second main issue, it is clear that, in appropriate circumstances, the Federal Circuit Court may dismiss an application for judicial review where there are clear independent grounds for a decision of the Tribunal unaffected by any error of law in its consideration of one particular ground: see eg VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1; Naif v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 114 at [17] and VBAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] and NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [24].

28    It has not been shown in those circumstances that the discretion exercised by the Federal Circuit Court was not available to it, or was wrongly exercised. In particular, there is nothing to suggest that Grounds (1), (3) and (4) of the Tribunal’s grounds referred to above at [21], were not independent of, and unaffected by, the error which the first respondent by his representatives brought to the attention of the Federal Circuit Court based upon the decision in Patel. Nothing has been suggested that the Tribunal committed jurisdictional error in reaching those independent conclusions.

CONCLUSION

29    For those reasons, in my view, the applicant has no prospect of succeeding upon an appeal, even if an extension of time within which to appeal were granted. I accordingly refuse the application. The applicant must pay to the first respondent costs of the application.

Associate:

Dated:    13 December 2013