FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration and Border Protection [2015] FCA 125

THE COURT ORDERS THAT:

The application for an extension of time 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 an order of the Federal Circuit Court of Australia in which it dismissed an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) to grant the applicant a Student (Temporary)(Class TU) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2    I understand that the applicant is a citizen of Pakistan. It does not appear to be controversial that:

    the applicant was originally granted a subclass 572 visa on 19 February 2009 valid until 8 June 2011;

    the applicant was initially enrolled in an Advanced Diploma of Accounting however he cancelled his studies;

    he subsequently enrolled in a Certificate IV in Business however he cancelled his studies;

    he then enrolled in a Diploma of Management due to commence in November 2011, however his certificate of enrolment was cancelled due to the non-commencement of his studies;

    the applicant made application to the Department of Immigration for a subclass 572 visa on 2 June 2011.

Decision of the Tribunal

3    The Tribunal noted the course of enrolments of the applicant, and observed that at the time the applicant lodged his visa application, the only subclass of visa to which the applicant was entitled was subclass 572 Vocational Educational and Training Sector. The Tribunal noted further that the criteria for the grant of a subclass 572 visa were set out in Pt 572 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), and in particular cl 572.235 which at material times required that:

If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa.

4    The Tribunal observed that the delegate of the Minister had refused the applicant’s visa application of 2 June 2011. In particular the Tribunal said:

14.    … The Delegate found that the applicant did not meet the requirements of CL 572.235 of the Migration Regulations. The Delegate found that there was a gap in the applicant’s study whilst the holder of his last held substantive visa, namely the period between 2 March 2010 and 26 May 2011. The applicant was invited to provide evidence with regard to this gap in his study and his failure to maintain enrolment in a registered course of study whilst the holder of a subclass 572 visa. The applicant failed to respond to the Departmental request for this evidence and the visa application was refused on this basis.

5    The Tribunal wrote to the applicant on 14 June 2013 inviting him to provide information to it. No information was produced to the Tribunal by the applicant by the time the Tribunal proceeded to make its decision.

6    After listing the courses in which the applicant had been enrolled the Tribunal said:

19.    The evidence before the Tribunal indicates that whilst the applicant held his last substantive visa, a subclass 572 visa, that the applicant failed to maintain enrolment in all registered courses of study that he had enrolled in. The evidence indicates that whilst the applicant was the holder of a bridging A visa after the refusal of his subclass 572 visa application, that the applicant has not been enrolled in a registered course of study. There is no evidence before the Tribunal as to why the applicant failed to maintain enrolment in a registered course of study from the time of his arrival in Australia and is the holder of a bridging A visa.

20.    The Tribunal on the basis of the evidence before it cannot be satisfied that the applicant did not deliberately flout visa conditions. The Tribunal finds that the evidence when cumulatively considered leads it to the view that the applicant has not complied substantially with the conditions of his last held substantive visa, a subclass 572 student visa, nor has he complied with the conditions of subsequently issued bridging visas.

7    Accordingly, the Tribunal was not satisfied that the applicant met the requirements of cl 572.235 of Sch 2 to the Regulations, and affirmed the decision of the delegate to refuse the applicant a Student (Temporary) (Class TU) visa.

Decision of the Federal Circuit Court of Australia

8    In the Court below the learned Judge noted that the Tribunal had made its decision without first inviting the applicant under s 360(1) of the Act to appear before it to give evidence and present arguments. His Honour observed however that the Tribunal had invited that applicant under s 359 of the Act to provide information. Materially s 359C(1) of the Act provides:

Failure to give information, comments or response in response to written invitation

(1)    If a person:

(a)    is invited in writing under section 359 to give information; and

(b)    does not give the information before the time for giving it has passed;

the Tribunal may make a decision on the review without taking any further action to obtain the information.

9    The applicant submitted however that the Tribunal’s letter of 14 June 2013 was addressed to his erstwhile representative, Mr David Bitel, and that by the time he received the letter Mr Bitel had ceased acting for the applicant. The applicant submitted further that Mr Bitel did not provide the Tribunal’s letter to him, and accordingly the applicant remained ignorant of the Tribunal’s request for information.

10    The primary Judge observed:

5.    Two issues arise. Did the applicant in fact receive the Tribunal’s letter dated 14 June 2013? Was the Tribunal in any event entitled to decide the application for review without inviting the applicant to appear before it to give evidence and provide arguments?

11    In summary his Honour found:

    There was evidence before the Court that the applicant did receive the Tribunal’s letter. In particular at [9] and [10] of the primary judgment, his Honour noted the affidavit of Mr Bitel in which Mr Bitel swore that:

o    by further letter of 28 June 2013, his firm had forwarded a copy of the Tribunal’s letter of 14 June 2013 to the last known postal address of the applicant; and

o    he caused an employee of his firm to send the same letter (attaching the Tribunal’s letter of 14 June 2013) to the applicant by email dated 1 July 2013.

    Mr Bitel did not inform the Tribunal that he was no longer acting for the applicant.

    In any event, the manner in which the Tribunal may seek information is set out in s 359(3) of the Act which provides:

Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

(a)    except where paragraph (b) applies--by one of the methods specified in section 379A; or

(b)    if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(4)    …

    Relevantly in this case, s 379A(5) of the Act provides:

Transmission by fax, email or other electronic means

(5)    Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, transmitting the document by:

(a)    fax; or

…

to:

(d)    the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or

    In this case the Tribunal had faxed the letter of 14 June 2013 to Mr Bitel, which was the last fax number provided to the Tribunal by the applicant in his application for review.

    It followed that the Tribunal was entitled to decide the application without inviting the applicant to appear before it to give evidence and present arguments.

12    Accordingly in a judgment dated 10 October 2014, his Honour dismissed the application.

Proceedings in this Court

13    Rule 36.03 of the Federal Court Rules 2011 (Cth) requires an appellant to file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case the applicant filed an application for an extension of time on 20 November 2014, being 10 days out of the time limit prescribed by r 36.03.

14    The principles guiding the discretion of the Court to grant an extension of time were explained in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and include:

    the extent of delay;

    the explanation for the delay; and

    the merits of the substantive application.

15    In an affidavit filed on 20 November 2014 the applicant deposed that:

    “I came to know about the judgment very late.”

    “I couldn’t arrange the legal material in time due to less knowledge about legal matters.”

    “I didn’t have any lawyer so found it difficult to pursue my case.”

16    The sole draft ground of appeal in the draft notice of appeal annexed to the affidavit was as follows:

I couldn’t arrange the legal documents in time due to less legal knowledge.

17    The sole order the applicant has sought is:

I want the review of the decision of Federal Circuit Court.

18    The extent of the delay of the applicant in seeking an extension of time is ten days, which in my view is not a long period of time. The Minister in this case submits that the applicant has not provided a satisfactory explanation for his failure to lodge a notice of appeal in accordance with the Federal Court Rules. However while the explanation provided by the applicant – namely he learned of the judgment of the primary Judge late, he lacked legal knowledge, and is self-represented – is not a good explanation, in my view it is a satisfactory explanation in the circumstances of this case.

19    A more difficult hurdle for the applicant concerns the merits of the substantive appeal.

20    At the hearing this afternoon, the applicant from the Bar table informed me that he did not receive the letter or the email from Mr Bitel’s office, that he was too ill to attend the Federal Circuit Court hearing of 9 April 2014 where he could have cross-examined Mr Bitel as he had requested, and that he had attended the office of Mr Bitel in the first week of July 2013 and had not been informed of the letter from the Tribunal.

21    I do not consider any of these issues adequate to support an order for extension of time as sought by the applicant. The material before the Court supports a finding that the applicant had not seen fit to inform either Mr Bitel, or more importantly the Tribunal, of changes to his contact details. Both the Tribunal, and apparently Mr Bitel, had endeavoured to contact the applicant at the addresses he had nominated. It was the responsibility of the applicant to ensure currency of his contact details, at least with the Tribunal. In relation to the applicant’s somewhat belated challenge to the evidence of Mr Bitel in this Court, I note – and accept – the submission of the Minister that, in light of his illness, the applicant could have sought an adjournment of the hearing in the Federal Circuit Court. This was particularly so in light of the importance of Mr Bitel’s evidence in the context of that hearing. In any event, the assertions of the applicant in relation to his interactions with Mr Bitel’s office are merely that – assertions from the Bar table in the context of an appeal. So far as concerns the appeal of the decision of the Court below they can be of no weight and it is not appropriate for this Court to treat them as evidence.

22    I accept the submission of the Minister that the draft ground of appeal does not in any way support a case establishing an appealable error in the decision of the primary Judge. In any event I also accept the submission of the Minister that the decision of the primary Judge was open and legally correct.

23    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    24 February 2015