FEDERAL COURT OF AUSTRALIA

Lonachan v Minister for Immigration and Border Protection [2014] FCA 58

THE COURT ORDERS THAT:

1.    The title to the proceeding be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration, Multicultural Affairs and Citizenship” as the name of the first respondent.

2.    The application be dismissed with costs.

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 appeal from a decision of the Federal Circuit Court in Lonachan v Minister for Immigration and Citizenship [2013] FCCA 1306, delivered 8 August 2013. In that decision the learned judge dismissed an application for review of a decision of the Migration Review Tribunal, where the Tribunal had refused the applicant’s application for the grant of a Student (Temporary) (class TU) visa.

2    The application for an extension of time was filed by the applicant on 6 September 2013.

3    In my view the application should be dismissed with costs, for reasons to which I now turn.

Decision below

4    The primary decision was ex tempore and quite brief. It is helpful to set it out in full:

1.    In this application, the applicant applies for review of a decision made by the Migration Review Tribunal refusing his application for the grant of a visa, being a Student (Temporary) (class TU) visa. He had applied for the visa on 18 October 2011, but the delegate had refused the application on 15 December that year. The refusal had been on the basis of his non-compliance with the English proficiency criteria provided for in the regulations. The applicant filed his application for review of the delegate’s decision on 10 January 2012. That is to say, well outside of the 21 days provided for in s.347, and r.4.10.

2.    The Tribunal upon receiving the application concluded that it had no jurisdiction, and because the application had not been commenced as required by the Act and thus, it determined that the jurisdiction was not enlivened. Accordingly, on that basis, it dismissed the application. The applicant contends that he was unable to comply with the requirements of the regulations and Act because he was ill. That may well be the case, but the legislation has been designed such that any failure to comply is fatal, and in this instance the failure to comply was fatal. There is no argument that the application was filed late, and it follows that it appears the Tribunal was correct in its determination that it had no jurisdiction.

3.    Accordingly, I determine that the application should be dismissed, and I will dismiss the application.

4.    The applicant has not appeared, although the applicant was on notice that the matter was to proceed today to judgment. I am satisfied that he was aware that the matter was listed for judgment today, and his non-appearance is probably because he has either left the country, or is in the process of making arrangements to leave the country, and is now indifferent as to the outcome of the application.

5.    I proceed pursuant to FCCA Rule 13.03C. However, notwithstanding that, the respondent claims full costs, and in my view is entitled to costs. The application was wholly unsuccessful; indeed it never had any prospects of success.

6.    The respondent will be awarded costs following its success in resisting the application. I direct that the applicant pay the respondents costs fixed in the sum of $6646.00.

Procedural issues

5    The applicant has applied for both leave to appeal from the decision of his Honour below and an extension of time to seek leave to appeal. The Minister submits that the applicant has no need to seek leave to appeal as the judgment of the Federal Circuit Court was a final judgment from which an appeal to this Court lies as of right.

6    Leave to appeal from decisions of the Federal Circuit Court to this Court is only necessary where the judgment below is interlocutory rather than a final judgment (s 24(1A) Federal Court of Australia Act 1976 (Cth) (“the Act”)). It is well-settled that a final order finally disposes of the rights of the parties (Hall v Nominal Defendant (1966) 117 CLR 423 per Barwick CJ at 430, Taylor and Owen JJ at 439-440, Windeyer J at 443, Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 254, Chien v Minister for Immigration and Citizenship [2013] FCAFC 124 at [35]).

7    It is, perhaps, not surprising that the applicant should have sought leave to appeal from the decision below – certainly a number of previous decisions of this Court in comparable circumstances suggest that leave to appeal may be necessary (cf SZCLW v Minister for Immigration and Citizenship [2007] FCA 2006, SZCVD v Minister for Immigration and Citizenship [2007] FCA 1996, SZGIZ v Minister for Immigration and Citizenship [2007] FCA 1475, SZAHH v Minister for Immigration and Citizenship [2007] FCA 810, Applicant S227 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1997, SZAUV v Minister for Immigration and Citizenship [2007] FCA 1022) although there is also strong authority to suggest that it is not (cf Guirgis v Minister for Immigration and Multicultural Affairs [2001] FCA 589, Le v Minister for Immigration and Citizenship [2010] FCA 1260, SZOBI v Minister for Immigration and Citizenship [2010] FCA 1026, SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151).

8    In this case his Honour heard the application for review, and dismissed it. In my view this is a final decision, in respect of which no leave to appeal need be sought as an appeal lies of right pursuant to s 24(1)(d) of the Act.

9    In any event, I note that the Minister has no objection to the Court treating the application as an application for an extension of time to file a notice of appeal pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”). Certainly it does not appear to be in dispute that an extension of time is required because the applicant sought to file a notice of appeal from his Honour’s decision outside the 21 day period prescribed by r 36.03 of the Federal Court Rules.

Grounds of the application for extension of time

10    The grounds upon which the applicant relies for an extension of time to file a notice of appeal are brief, namely:

1.    The applicant did not receive confirmation of the hearing date set by the court.

2.    The applicant was not given the opportunity to represent himself at the hearing during which the order was given.

11    The applicant is self-represented and appeared in person before me. In support of his application he submits, in summary:

    He had applied for visa renewal on 18 October 2011 in order to finish his course.

    On 19 October 2011 a case officer requested documents of a medical examination and in relation to English language proficiency.

    On 26 October 2011 the applicant sent a letter stating that he had undertaken an IELTS examination for the course which he was undertaking at the time.

    On 31 October 2011 the case officer telephoned the applicant and explained that the information the applicant had provided was insufficient. The case officer agreed that a letter from his college concerning his English language proficiency would suffice.

    On 10 November 2011 the applicant sent a letter from his college concerning his English language proficiency.

    On 14 November 2011 the case officer contacted the applicant’s college and the college confirmed the applicant’s English language proficiency.

    On 15 December 2011, and contrary to earlier representations made by the case officer concerning the adequacy of a letter from the applicant’s college, the case officer refused the applicant’s student visa application on the basis that the applicant did not meet English language proficiency.

    The applicant applied for a review of the decision of the Tribunal in the Federal Circuit Court.

    At the second hearing before the Federal Circuit Court the applicant did not receive any confirmation about his next hearing.

Consideration

12    Factors to which the Court should have regard in assessing whether an extension of time ought be granted in which to file a notice of appeal include whether:

    a satisfactory explanation has been given for the failure to lodge the notice of appeal within time;

    the proposed grounds of appeal have any prospects of success; and

    remitter of the case would be futile.

13    In this case:

    No satisfactory explanation was given by the applicant for his delay in lodging the notice of appeal. In his affidavit affirmed 6 September 2013 the applicant deposes, inter alia, that he received a copy of his Honour’s decision on 15 August 2013, which is a week after delivery of his Honour’s judgment. This was well within the time prescribed for filing a notice of appeal from that decision.

    The parties appeared before the primary judge on 11 July 2013. Although the applicant complains that he did not receive confirmation concerning the hearing before the primary judge and (by inference) that this explains his failure to appear before his Honour, the transcript of the hearing before his Honour of 11 July 2013 does not support this contention. I note in particular the concluding comments of his Honour:

Thanks Mr O’Connor. What I propose to do is just simply to adjourn the matter to 8 August and I will dispose of it on that date. Well, Mr Arun, good luck with your exams. We will see you on 8 August.

(transcript in BRG 985 of 2012 11 July 2013 p 4 ll 34-36.)

It follows that the applicant’s complaint that he received no confirmation of the second hearing date set by the Federal Circuit Court has no substance.

    Indeed, it is clear that on 8 August 2013 his Honour simply delivered judgment in relation to the applicant’s application. This is clear from the transcript of 8 August 2013 before his Honour. I am not satisfied that the applicant suffered any prejudice in respect of the prosecution of his case from his failure to appear at the hearing on that date. Accordingly, I consider the second ground of the applicant’s application has no merit.

14    Finally, and in any event, on the material currently before me and in the context of this application no error in his Honour’s judgment has been identified such that an appeal from the primary judgment would have any prospects of success. It is clear that the applicant believes that he has been the subject of injustice at the hands of his case officer in relation to substantiation of his English language proficiency skills. He may be correct in this belief. However the Migration Regulations 1994 (Cth) set strict time limits for applications to the Tribunal for review of decisions by delegates. As Marshall J succinctly explained in Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7]:

Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate’s decision is taken to be given to the Tribunal when it is received at the Tribunal’s registry.

15    To further paraphrase observations of Marshall J in Patel:

8.    … [T]he [applicant’s] lack of awareness of his limited rights of review is understandable but is not something that this Court is able to correct. The decision of the Tribunal was a correct one. The Court below made no appealable error in refusing to grant relief to the [applicant].

16    The appropriate order is that the application be dismissed with costs.

Associate:

Dated:    11 February 2014