FEDERAL COURT OF AUSTRALIA

Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to seek leave to appeal is refused.

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

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

INTRODUCTION AND SUMMARY

1        The applicant applied for a Student (Temporary) (Class TU) (Subclass 572) visa on 6 June 2013, while in Australia on a Business Entry (Class UC) visa. The application was refused by a delegate of the Minister on 6 August 2013.

2        On 23 August 2013, the applicant applied for review of the delegate’s decision in the Migration Review Tribunal. The Tribunal affirmed the delegate’s decision to refuse to grant the visa on 5 December 2013.

3        On 20 December 2013, the applicant filed an application in the Federal Circuit Court for review of the Tribunal’s decision. Orders were made on 5 March 2014 by Registrar Allaway to list the proceeding for a show cause hearing pursuant to the Federal Circuit Court Rules 2001 (Cth). The application was dismissed by the Federal Circuit Court judge at that hearing on 22 July 2014.

4        The applicant filed a notice of appeal in this Court on 11 August 2014.

5        A decision of the Federal Circuit Court to dismiss an application pursuant to r 44.12(1)(a) is interlocutory in character: see r 44.12(2) and the reasons of the Full Court in Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17].

6        Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal cannot be brought from an interlocutory judgment of the Federal Circuit Court without leave being granted.

7        The Minister objected to the competency of the appeal, correctly identifying the interlocutory character of the decision,. He also identified that the applicant was out of time to seek leave to appeal an interlocutory decision. An application for leave to appeal must be filed within 14 days from the day on which judgment was pronounced or the order was made: r 35.13 of the Federal Court Rules 2011 (Cth). The applicant’s purported notice of appeal was filed with the Court on 11 August 2014. The application for leave to appeal was therefore made six days out of time and an extension of time was required.

8        Given the applicant was self-represented; the Minister was content for the proceeding to be treated as an application for an extension of time in which to seek leave to appeal.

9        For the reasons I set out below, the application should be refused.

THE TRIBUNAL’S DECISION

10        The applicant was invited to, and attended, a hearing before the Tribunal, where he was represented by a migration agent. At the hearing, the applicant gave evidence about his study history, and his activities since he ceased his studies, including a period where he returned to India. On the day of the hearing, the Tribunal affirmed the decision of the delegate to refuse the applicant a visa, finding that the applicant could not identify any exceptional circumstances for the grant of a visa to him.

11        The Tribunal found that the applicant was a “completely unreliable witness”, who had given evidence that was “untrue and designed to mislead”. The Tribunal said (at [20]-[27]):

As the hearing continued and the applicant’s evidence became even more contradictory, it became apparent that he was a completely unreliable witness.

He told the hearing that having been here for a month, he received a phone call from the owner of his company to say the company was going bankrupt and that he did not have a job on his return to India. He confirmed that his call had been some time in mid-April. The tribunal suggested to the applicant this meant the documentation provided with his application in June were falsehoods. For example with the application he stated that the company that sent him to Australia was offering “good employment with a huge package” if he could finish a Marketing Diploma while in Australia. It went on to say he had been advised by his employer to apply for a student visa to finish his education in marketing. It went on further to say he had strong employment ties. Given his evidence that in April he had been advised the company was being wound up and he did not have a job to go back to, this information was untrue and designed to mislead. The application made no coherent response.

With his application he made multiple references to his eagerness to complete marketing studies and provide evidence of enrolment in a Diploma and an Advanced Diploma of Marketing. With the statement accompanying his application her said “I had enrolled and committed with the education provider that I will pay the full fee next week as the fee is coming from my parents in India”. Noting that those enrolments had been cancelled and his application was not to study a Master of Professional Accounting, the applicant agreed that the previous information that was provided had been untrue and designed to mislead.

The applicant told the tribunal that he had read and understood the decision to refuse his visa application.

When asked what exceptional circumstances he believed existed that would enable him to be granted a student visa, said he was unsure what constituted exceptional circumstances. The tribunal referred him to the primary decision and to his migration agent for a detailed explanation advising that as the words indicated, the circumstances needed to be exceptional to the norm.

The applicant said he had nothing further to add.

The tribunal told the applicant in light of the evidence presented it was the finding of the tribunal that he had not provided exceptional reasons for the grant of a visa and therefore failed to meet the requirements of clause 572.227.

FINDINGS AND REASONS

As he was unable to meet clause 572.227 which was a prerequisite for the grant of a visa, the tribunal affirms the decision under review.

…

PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

12        On 20 December 2013, the applicant applied for judicial review in the Federal Circuit Court. That application was lodged within time. The application set out three grounds of review:

1. S.477, Migration Act 1957, Judicial review can be lodged after 35 days’ time after tribunal review has been finalised.

2. I am not happy with tribunal decision, applying for judicial review of legitimate decision

3. I do have exceptional circumstances beyond the application lodgement previously

13        An affidavit, sworn by the applicant on 20 December 2013, stated:

1. There is a Jurisdiction error in the tribunal Decision as Tribunal Member has relied on previous entry details

2. I do have compassionate and compelling reasons beyond my control to lodge the onshore visa.

3. I have attached the decision made by Migration Review Tribunal

14        The Federal Circuit Court set out how the phrase “exceptional” has been construed with respect to other visa criteria, referring to Gurung v Minister for Immigration and Border Protection [2013] FCCA 2009 and the decision of Kiefel J in Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548. It is not apparent that the applicant expressly contended the Tribunal had misunderstood this phrase, but this part of the Federal Circuit Court’s reasons should be seen as the Court being cautious in ensuring for itself there was no misunderstanding by the Tribunal of this statutory phrase.

15        At the conclusion of the hearing on 22 July 2014, the Federal Circuit Court judge made orders dismissing the application. The Court found ([10]-[14]):

The tribunal’s decision set out at length the evidence and claims made by the applicant at the hearing that the tribunal conducted on 5 December, 2013. The tribunal, after considering all of the matters of which the applicant informed the tribunal, concluded that the applicant’s claims and evidence were not credible. In fact, according to the tribunal’s decision, the applicant himself accepted that some of the things that he had provided to the tribunal were untrue and designed to mislead.

Ground 1 of the applicant’s application merely restates the statutory provision. It provides no ground of review.

Ground 2 demonstrates that the applicant is not happy with the tribunal’s decision. That is to say, he takes issue with the merits of the decision. This is not a meritsbased review process. The application can only succeed if the applicant establish that the tribunal’s decision is affected by jurisdictional error as that phrase has been described in many of the authorities such as Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

The applicant’s claims here do not establish that the tribunal’s decision is affected by jurisdictional error. The tribunal, whilst alive to the issue that it needed to determine, that is, whether the applicant established exceptional reasons for the purposes of cl.572.227 of the Regulations, found that in the circumstances it was unable to be satisfied about that because of the lack of creditworthiness of the applicant. Findings of credit are findings of fact par excellence and are for the tribunal to make: Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405.

The final ground of review is that the applicant does have exceptional circumstances beyond the application lodgement previously. That too is not a ground of review. The jurisdiction exercised by this Court is a very circumscribed jurisdiction. This Court cannot substitute its own view for that of the migration review tribunal, even if it thought it should do so. This Court’s power is only to review the process adopted by the tribunal and to ensure that no jurisdictional error has occurred which would vitiate that decision. No such error is identified by the applicant in this case.

THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL

16        The purported notice of appeal filed by the applicant sets out the following grounds:

The applicant visa 572 subclass was REFUSED by to Immigration Department & border protection (DIBP) on the basis of genuine temporary entrant requirement, by delegate under the Migration Act 1958; I came to Australia in 10th March 2013 on 456 business visitor visa. According my circumstances changed and developed how these made me to apply for further visa which is student visa "572 subclass". On, 61h of August 2013 delegate has refused the visa on the basis of previous substantial compliance of previous student visa and as well as present situation of my genuine temporary entrant criterion, besides my 456 is visa also important factor in the case officer decision.

Having regard to the onshore visa application under the 572 visa criterion, I am eligible to apply the 572 subclass by satisfying the criterion of schedule 1. So, I have really astonished myself as Department comes and refuse the application without giving time frame to provide the documents and reason behind the applicant substantial compliance. Refusal of DIBP has turned my situation in to chaotic situation where I went in to trauma that I could not understand what to do. Since then, I have lost valuable time and lost lot of money, I should have been allowed to prove myself in front of Immigration that would have been legitimate than the direct refusal.

I have received the refusal letter from DIBP, and went to Migration review tribunal for further appeal. Finally I went to hearing to explain my situation why I wanted to apply for student visa. There was the situation where I can't explain and tribunal member is not able to hear my views of how I fall in to genuine temporary entrant. However I have provided my all documents and claims to tribunal in this regard. My question is "what else I need to do a part of this?" and I did this to Federal circuit court alike.

I have not had any control of my situations which became very bad in Australia to provide reasons at tribunal, but Migration Review Tribunal has made applicant ineligible to review application in Australia. According to letter received by mail applicant has lodged the review application in time frame. Applicant has provided enough explanation with Federal circuit application which was not considered by Tribunal member and applicant wasn't given chance explore his outcry in front of justice. As new argument/hope came to light which demonstrates the unsatisfactory evidence hasn't been done by me, according to the legislation applicant may satisfy the 572 subclass criterion and could be accepted by apex courts, applicant has intention to bring the Federal circuit court decision to Federal court for further review with new argument as explanation has been submitted by Migration agent but not by applicant. The provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of I am ready to provide valid reasons why I had to have unsatisfactory of substantial compliance at my previous studies of previous visa long time ago, and how I am eligible to lodge the review application at Migration review tribunal if I am given chance by Federal court or DIBP (Department of Immigration and Border Protection)

Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even

looked at my claims as there was big barrier "Judicial review has been made which has not been proved by me how I am genuine student in Australia", but I have exceptional circumstance beyond my control.

17        The applicant also relies on an affidavit, sworn on 11 August 2014. It states:

On Hearing date, that was sudden act no imaginable, with in hour without any arguments or oral statement for me case has been dismissed. What is the use of I am coming to Federal circuit court to appeal the Migration Review tribunal decision, no time for submission and no time given for even thinking. Applicant should wait for call, but court could take on me any time Immigration Lawyers want to have. It was totally unjust and unfair as well.

Here, I haven't thought of federal court has dismissed my case until I came to court officer to know by showing the papers from the Federal circuit court. Money is also matter bring the appeal to Federal circuit court at Federal court, there is no money left on me, and totally broke and no one was giving me free service. In this manner my time wasted merely and finally I came to Federal circuit court in this regard to ask whether there is any solution for this. Officer said to me that I can lodge the Federal court review by requesting the fee waiver. I have lost the job recently as I was in bridging visa A doesn't let me be hired by an employer to work for my survival in Australia.

As I was having exceptional circumstances beyond my control to lodge the review application on the basis of lack of knowledge and financial hard ship encompassed me to this situation where I could not lodge the application.

I am not happy with decision made by Migration review Tribunal

    As well as DIAC decision

I am not happy with decision of Federal Circuit court of Australia

18        On 22 August 2014, the Minister filed a Notice of Objection to Competency of the appeal pursuant to r 36.72 of the Federal Court Rules. The objection is based on the interlocutory nature of the appeal, for which leave is required, and the requirement for the applicant to seek an extension of time.

19        The applicant appeared in person before me at the hearing. He did not require the assistance of an interpreter. He repeated his contention that he was in financial difficulty and could not afford a lawyer and therefore did not know what arguments and material to put before the Court.

THE MINISTER’S SUBMISSIONS

20        The Minister opposes both an extension of time and leave being granted to the applicant. The Minister submits that, even if an extension of time were granted, the application for leave would be bound to fail, on the basis that the purported notice of appeal does not identify any legal, factual or discretionary error in the decision of the Court below.

21        The Minister submits that the applicant makes complaints about the conduct of the Department of Immigration and Border Protection, which, the Minister submits, the Court has no jurisdiction to review. The Minister submits that the applicant’s complaints about the failure of the Tribunal to give him a proper hearing are unsupportable — the applicant attended a hearing before the Tribunal, from which the Tribunal found him to be a “completely unreliable witness”, and gave evidence, which the Tribunal found to be “contradictory”.

22        The Minister submits that claims by the applicant that he is the victim of fraudulent conduct by his migration agent are unsubstantiated, and that the only evidence of misrepresentations relates to contradictory evidence given by the applicant himself.

23        The Minister notes that the applicant makes reference to the possibility of providing fresh evidence on appeal, which the Minister submits is inadmissible and would be opposed. Finally, the Minister submits that the applicant has provided no evidence of exceptional circumstances that was not considered by the Tribunal or the Federal Circuit Court. The Minister submits the Tribunal’s decision is not infected by jurisdictional error and the application must be dismissed.

APPLICABLE LEGAL PRINCIPLES

24        In Gallo v Dawson (1990) 93 ALR 479, McHugh J said (at 480) that the discretion to extend time to an applicant exists in order to “do justice between the parties”.

25        In considering whether to extend the time in which an application for leave to appeal may be filed, the Court considers the same principles that apply to an extension of time in which to file a notice of appeal: see Mehmood v Attorney-General (Cth) (2013) 141 ALD 339; [2013] FCA 406 at [5]-[6] per Foster J. Those considerations were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J, and include any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted. This is not an exhaustive list and the discretion is a broad one.

26        Also broadly expressed is the discretion to grant leave to appeal conferred by s 24(1A) of the Federal Court Act: see generally DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. As the Full Court observed in Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261; [2010] FCAFC 101 (at [20]):

Leave to appeal against an interlocutory order will usually be granted only where the applicant is able to show that the order occasions substantial prejudice to the applicant and there is a reasonable argument that the order should be set aside: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

CONSIDERATION

27        The applicant’s explanation for the delay in filing what should have been an application for leave to appeal but was in fact a notice of appeal are “lack of knowledge” and “financial hardship”. He states that “finally I came to Federal Circuit Court in this regard [that is, being dissatisfied with the Federal Circuit Court decision]” and was told by an “officer” that he could “lodge the Federal Court review by requesting a fee waiver”.

28        Even giving the applicant the benefit of treating the document he lodged as what it needed to be under the Rules, there is no explanation about the timing of his approach to the Federal Circuit Court for information about where he might go from there. He does not, for example, give evidence that he misunderstood the time limits. There is no evidence of attempted but failed filing of documents. There is no evidence he received the wrong advice from anyone. To the contrary, what evidence he gives demonstrates he is capable of asking for the information he needs and acting upon it.

29        Notwithstanding, the delay is short — only six days — I am not satisfied on the evidence that the applicant’s explanation is acceptable. There are many unrepresented applicants in this jurisdiction who manage to comply with the time limits imposed by the Rules. No extension of time should be granted.

30        Even if I had been persuaded to grant an extension of time in which to seek leave to appeal, I would have refused the applicant leave to appeal.

31        The orders and judgment of the Federal Circuit Court is not attended by sufficient doubt to warrant the grant of leave to appeal. The Federal Circuit Court was correct to identify the Tribunal’s decision as one primarily concerned with the credibility of the applicant. The Tribunal’s reasons make it plain it did not believe what the applicant said to it. The reasons of the Tribunal set out a rational basis for the Tribunal’s disbelief of the applicant.

32        The Federal Circuit Court was correct to find that none of the grounds of review expressed by the applicant could be made out. There is no evidence that the Court proceeded in a procedurally unfair way, as the applicant contends. Although the hearing may have been shorter than the applicant anticipated, there is no evidence he was not given a reasonable opportunity to put the arguments he wanted to put on judicial review. It is apparent most of what the applicant wished to say was not, in a legal sense, directed at establishing jurisdictional error. Since he is not a lawyer, and is unfamiliar with the Australian legal system, that is hardly surprising.

33        There is nothing in the Tribunal’s reasons or the Federal Circuit Court judgment which suggests that the applicant’s prospects of success would be materially different if he secured legal representation. In those circumstances there was no basis, in my opinion, to postpone the decision on his application for an extension of time and leave to appeal. These applications should be refused.

Associate:

Dated:    18 November 2014