FEDERAL COURT OF AUSTRALIA

Enjam v Minister for Immigration and Border Protection [2014] FCA 189

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time to institute his appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

3.    The title of the proceeding be amended to describe the first respondent as the Minister for Immigration and Border Protection.

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

REASONS FOR JUDGMENT

1    By an application for an extension of time dated 27 September 2013, the applicant seeks an extension of the time to institute an appeal from the judgment of the Federal Circuit Court made on 2 August 2013 published as Enjam v Minister for Immigration & Anor [2013] FCCA 1046.

2    The primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 27 March 2013 which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the applicant a student (Temporary) (Class TU) visa (“the Visa”).

3    The applicant is a citizen of India who lodged an application for the Visa on 6 June 2011. On 31 October 2011, a delegate of the Minister refused the application on the basis that the applicant had not provided evidence of his English language proficiency in accordance with the relevant requirements for the visa set out in the Migration Regulations 1994 (Cth) (“the Regulations”).

4    On 20 November 2011, the applicant lodged an application for review of the delegate’s decision with the Tribunal. By its decision, the Tribunal affirmed the decision not to grant the Visa to the applicant on the basis that there was no evidence before the Tribunal that the applicant was currently enrolled in or the subject of a current offer of enrolment in any course of study and that therefore the Tribunal was not satisfied the applicant met the requirements of cl 572.222 or cl 572.231 of Sch 2 of the Regulations (and their equivalents in relation to other relevant visa subclasses).

5    On 26 April 2013, the applicant filed an application for judicial review of the Tribunal’s decision with the Federal Circuit Court. That application was dismissed on 2 August 2013.

6    The Court has, on a number of occasions, identified a range of factors which may be taken into account as a guide to the exercise of the Court’s discretion to extend time for the filing of a notice of appeal. Those factors were conveniently summarised by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-9. The factors there identified need to be read with the observations of a Full Court of this Court in Comcare v A’Hearn (1993) 45 FCR 441 at 444 (Black CJ, Gray and Burchett JJ), where the Full Court noted that while there is no rule that an acceptable explanation for the delay is an essential precondition, “It is to be expected that such an explanation will normally be given”. See further Pham v Commonwealth of Australia [2002] FCA at [11] (Gray J).

7    The relevant factors of particular significance to this application are:

(a)    the explanation given for the applicant’s delay in filing a notice of appeal;

(b)    whether that delay would cause any prejudice to the Minister; and

(c)    the merits of the applicant’s proposed appeal.

For reasons which I will now briefly explain, those factors do not favour the Court granting the extension of time sought.

The explanation for the delay

8    The delay in question is a delay of some five weeks. The applicant told the Court that he did not know that he needed to apply to the Court within any particular time until it was later explained to him by a friend. No affidavit was provided in support of that assertion. Further, and as counsel for the Minister submitted, there is a statement made in the application filed by the applicant with the Federal Circuit Court which suggests that the applicant is well aware of the need to comply with court time limits. I do not, in the circumstances, consider that the applicant has provided an acceptable explanation for the delay.

Prejudice to the Minister

9    The Minister did not assert that he would suffer any prejudice by reason of the delay should an extension of time to institute an appeal be granted. The absence of any prejudice favours the grant of the extension sought, although, as the authorities make clear, a mere absence of prejudice is not sufficient of itself to justify the grant of an extension of time.

The merits of the proposed appeal

10    In support of his application, the applicant filed an affidavit dated 27 September 2013, in which he asserted that he was “not happy” with the judgment of the Federal Circuit Court together with a draft notice of appeal containing the following grounds of appeal:

(1)    I am not Happy with the decision made by Federal Circuit Court of Australia; and

(2)    All the factors that not look at properly.

11    The only substantive ground of appeal contained in the draft notice of appeal is a suggestion that the primary judge did not consider all of the relevant factors properly. However, the applicant has not identified what factors he is referring to or how it is said that the primary judge failed to look at those factors properly.

12    In his oral submissions today, the applicant asserted that he had sought an extension of time from the primary judge in order to provide further evidence. There is no indication in the reasons for judgment of the primary judge that any such extension was sought. In any event, the attempt to introduce before the Federal Circuit Court further evidence would have likely done no more than invite the primary judge to embark on a merits review which the primary judge was unable to undertake.

13    It is well established that the task of a court on appeal is the correction of error: Branir Pty Ltd & Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22] and [25] (Allsop J, with whom Drummond and Mansfield JJ agreed). The applicant has not identified any error on the part of the primary judge.

14    It seems plain, from the reasons for judgment of the primary judge, that the primary judge correctly concluded that there was no jurisdictional error on the part of the Tribunal.

15    The primary judge was correct to conclude that in issuing an invitation to the applicant to attend its hearing, the Tribunal complied with the requirements of the Migration Act 1958 (Cth) (“the Act”). Even if the applicant did not receive that invitation, he was deemed to have received it by s 379C(4) of the Act. At the hearing before the primary judge, the applicant also claimed that he had suffered “unexpected health [sic] and stress” following the delegate’s decision and suggested that this was another reason he was unable to attend the Tribunal’s hearing. There was no suggestion by the applicant that any attempt had been made to contact the Tribunal to advise it of the state of his health. I can see no error in the primary judge’s approach to that question.

Conclusion and costs

16    Having regard to each of the above factors in combination, I consider that this is not an appropriate case for the grant of an extension of time in which to institute an appeal. I will make an order to that effect and also an order that the applicant pay the Minister’s costs.

Associate:

Dated:    7 March 2014