FEDERAL COURT OF AUSTRALIA

Hossen v Minister for Immigration and Border Protection [2017] FCA 159

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    Mr Hossen applies today for an extension of time and for leave to appeal from the judgment of the Federal Circuit Court of Australia delivered on 23 September 2016.

2    By that judgment the primary judge dismissed Mr Hossen’s application to extend time to review a decision of the Migration Review Tribunal, as it was then known. The decision of the Tribunal was given in May 2015. The primary judge declined the application for an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth). Section 477 provides:

477    Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

(3)    In this section:

date of the migration decision means:

(a)    in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 - the date of the written decision under that subsection; or

(b)    in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

(c)    in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7 - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

(ca)    in the case of a migration decision made by the Immigration Assessment Authority - the date of the written statement under subsection 473EA(1); or

(d)    in any other case - the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

3    It is now submitted for the Minister on this application for an extension of time to this Court that I do not have jurisdiction to hear an appeal from an order of the Federal Circuit Court refusing to extend time.

4    Section 476A(3) of the Act provides that, despite s 24 of the Federal Court of Australia Act 1976 (Cth), an appeal may not be brought to this Court from a judgment of the Federal Circuit Court making an order or refusing to make an order under s 477(2) or s 477A(2) of the Act.

5    The Minister relies on a notice of objection to competency filed on 9 November 2016, together with an affidavit in support of that date and a further affidavit of 7 February 2017 which, essentially, just gives the history of the matter which I will discuss below.

BACKGROUND

6    Mr Hossen applied for a student temporary class TU visa in February 2002, but on 24 June 2003 a delegate of the Minister refused to grant him that visa. The Department for Immigration and Border Protection later assessed Mr Hossen’s case and found that he was not correctly notified of the decision at the time.

7    Mr Hossen was renotified of the refusal decision, over 11 years later, on 28 October 2014. Due to that renotification, Mr Hossen was entitled to lodge a review of the decision and was invited to appear before the Tribunal on 4 May 2015 to give evidence in support of his application.

IN THE TRIBUNAL

8    The matter proceeded before the Tribunal on 4 May 2015. On 29 May 2015, the Tribunal affirmed the decision under review. As the record shows, the Tribunal found that there was no evidence to suggest that Mr Hossen was enrolled, or had a current offer of enrolment, in any applicable course of study. Therefore, cll 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Migration Regulations 1994 (Cth) were not met. Those clauses all deal with enrolment in, or offers of enrolment to, courses of study of the type specified in subclass 570 visas by the Minister, as set out in a legislative instrument in force at the time of making the visa application.

9    The Tribunal also found that there was no evidence to suggest that Mr Hossen met the criteria for either a subclass 576 AusAid or Defence Sector visa or subclass 580 student guardian visa.

10    The issue before the delegate was whether at the time of the decision Mr Hossen met the enrolment requirements for a student visa. The Tribunal found that it was clear from his submissions that he was not enrolled to study, that he was not a student, that he wished to remain permanently in Australia, and that he had sought referral to the Minister, as Mr Hossen has confirmed today.

11    The Tribunal was also of the view that by seeking a referral to the Minister under s 351 of the Act, he was implicitly acknowledging that he did not meet the requirements for the grant of a student visa. The Tribunal affirmed the decision under review.

IN THE FEDERAL CIRCUIT COURT

12    Mr Hossen then applied to the Federal Circuit Court on 24 July 2015, seeking an extension of time of three weeks to apply for judicial review of the Tribunal decision which had been given on 29 May 2015. Under s 477(1) of the Act, which I’ve referred to above, the application for judicial review needed to be filed within 35 days of the Tribunal decision, which was by 3 July 2015.

13    Mr Hossen, explained that his focus had been on seeking ministerial intervention and that was the reason for the minor delay.

14    The substantive application in the Federal Circuit Court would, had leave been granted, relied on the following grounds:

(1)    an error of law;

(2)    the decision-maker failed to take into account a relevant consideration; and

(3)    there was a failure to accord natural justice.

15    The matter was heard by the primary judge on 23 September 2016 and his Honour dismissed the application, being satisfied that there was no reasonably arguable ground of review. Further, his Honour considered that the Tribunal’s decision was demonstrably correct.

16    The significant point for the primary judge was the question of whether or not at the time of the initial application, the decision criteria, which the Tribunal identified, had been satisfied by Mr Hossen. His Honour found it was clear that those matters had not been and could not have been satisfied on the evidence and therefore it was not open to the Tribunal to be satisfied. That being so, his Honour concluded there were no reasonably arguable grounds of review. In those circumstances, on considering the substantive matters, his Honour was ultimately not convinced that it was in the interests of the administration of justice for there to be any order extending time within which Mr Hossen might commence an application for review in the court below.

IN THIS COURT

17    I should say that the error in notification of the delegate’s refusal to grant Mr Hossen a visa, and the very substantial delay in the review mechanisms being enlivened, are said to be a source of concern to Mr Hossen.

18    Mr Hossen has made the point before me on his application today that he has been seriously inconvenienced in that time and is ‘seeking compensation from the ombudsman’ or, alternatively, would be satisfied if his visa were reinstated.

19    However, those matters do not fall within the ambit of the application today either as it is cast, or so far as I can determine, as it could be cast, even with amended grounds of potential review.

20    The question today is whether the Court has power to grant an extension of time for leave to appeal. Mr Hossen filed his application on 17 October 2016, pursuant to r 35.14(1) of the Federal Court Rules 2011 (Cth). Pursuant to r 35.13(a), that application needed to be filed within 14 days of the date on which the judgment of the Federal Circuit Court was propounded or the order was made. That day fell on 7 October 2016. Therefore the application lodged was 10 days out of time, which is a relatively short period of time, which might easily be understood in confusion about technical matters.

21    By s 24(1)(d) of the Federal Court of Australia Act, the Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth. However, despite s 24, by s 476A(3)(a) of the Act, which the Minister referred to in the original notice of objection to competence he filed in November last year, an appeal may not be brought to this Court from the judgment of the Federal Circuit Court which makes an order or refuses to make an order under s 477(2) of the Act.

22    It is clear when the decision of the Federal Circuit Court is examined that the substance of the decision was one refusing an extension of time within s 477(2) of the Act. I refer to [3]-[16] of the primary judge’s decision:

3.    By this application the applicant seeks an extension of time within which to bring an application for review in respect of the tribunal’s decision. He needs an extension of time because he sought to commence his application outside of the 35 day time limit prescribed by s.477(1) of the Migration Act 1958. This Court has power to extend the time within which to bring such an application for judicial review if the Court thinks that it is in the interests of the administration of justice to do so.

4.    Whether the making of an order extending the time is in the interests of the administration of justice depends upon a consideration of a number of matters including the length and explanation for the delay in commencing the proceedings; the prejudice, if any, that might be suffered by the respondent to the application; and whether the applicant has any reasonably arguable grounds of review in respect of the tribunal’s decision. It is also relevant to take into account more generally that time limits are usually to be observed and the impact on other litigants who have abided by time limits and who are waiting for their appeals to be heard. It is also relevant to take into account the impact upon the court system and its ability to deal with these applications in a timely way.

5.    Perhaps the most significant factor to be taken into account and one to which attention is generally drawn is whether the proposed grounds of review are reasonably arguable.

6.    Before I deal with that matter, it is fair to say that the delay in this case of some three weeks or so is relatively modest and there is an explanation for it. In its decision record of 29 May, 2015 the tribunal under the heading “ministerial referral” makes some observations about the applicant’s case and suggested that the applicant might still make a request directly to the Minister for ministerial intervention in his case notwithstanding that the tribunal itself did not decide to refer the applicant’s case to the Minister.

7.    The Minister, of course, has a discretionary power to grant the applicant the relevant visa notwithstanding that his application was otherwise unsuccessful. The applicant took up the suggestion by the tribunal and he made an application for ministerial intervention on 26 June, 2015. That was dealt with promptly and refused on 14 July, 2015. These proceedings were then commenced on 24 July, 2015. The applicant acted promptly after his application for ministerial intervention was refused. I am satisfied that there is a reasonable explanation for the delay in commencing these proceedings.

8.    The Minister, for his part, does not suggest that there is any prejudice to him if the extension of time that is sought is granted.

9.    I turn, then, to the question of whether the applicant’s case is reasonably arguable. On that point, it is pertinent to observe that the task of the Court is one which is to be undertaken at a generally impressionistic level. It is inappropriate for the Court to embark upon a full and careful examination of the grounds of review proposed by the applicant. See, for example, the decisions in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 and AZAFX v Federal Circuit Court of Australia [2016] FCA 1139.

10.    The tribunal’s decision in this case was preceded by a letter from the tribunal to the applicant on 15 April, 2015. The letter invited the applicant to appear before the tribunal to give evidence and present arguments relating to the issues in his case. The letter required the applicant to provide information to the tribunal “so that a decision can be made as quickly as possible”. Thereafter in the letter, commencing at the bottom of page 1 and going over into page 2 is a list of documents that the tribunal specifically brought to the applicant’s attention that the tribunal wished to have for the purposes of the application. Items 1 and 2 in the list concerned the applicant’s current enrolment in a course or an offer of enrolment in a registered course “as required for the grant of the Student visa”.

11.    The tribunal conducted a hearing where the applicant appeared to give evidence and present arguments. That occurred on 4 May, 2015. The applicant was represented in relation to the review by a registered migration agent and, as I have already observed, he made an application for ministerial intervention after the tribunal’s decision. That application was prosecuted by lawyers on his behalf.

12.    It is trite that to secure the grant of the relevant visa the applicant needed to meet the criteria that were prescribed for it. As is often the case, the Migration Regulations 1994 (Cth) prescribed criteria that needed to be met at the time of the application for the visa and criteria that needed to be met at the time of the decision on the application for the visa. In this particular case that assumes some significance because there was such a significant lapse of time between the time of application for the visa and when a decision on the visa application was ultimately made by the tribunal. But notwithstanding that lapse of time the relevant criteria needed to be met. If the criteria were not met, the tribunal, exercising the Minister’s powers under s.65 of the Migration Act, had no power to grant the visa.

13.    At paragraph 9 of the tribunal’s reasons for decision and after referring to the letter to which I have already referred, some submissions and other material received from the applicant the tribunal said this:

The Tribunal asked if the applicant was enrolled to study. The applicant stated he was not enrolled. The issue before the delegate was whether the applicant met the criterion currently described in 572.223 and 572.225; however, the issue now is whether at the time of this decision the applicant meets the enrolment requirements for a student visa. With limited exceptions not relevant to this case, clause 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course and is of a type specified under Regulation 1.40A for the subclass at the time of the application.

That is the issue to which that part of the tribunal’s letter and hearing invitation to which I have earlier referred was directed.

14.    The tribunal then went on to correctly observe:

The applicant has not studied or been enrolled to study for an extended period of time. He has pursued other visa options in the time and is able to apply for the present review of the decision to refuse because of a failure to notify him correctly of the decision to refuse him his Student in the first instance.

The tribunal proceeds, again correctly in my view, at 14:

There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in, any applicable course of study. Therefore, clause 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

The tribunal considered whether there was any evidence that the applicant met the criteria for either a subclass 576 or subclass 580 visa but found that there was not. For those reasons the decision under review was affirmed.

15.    The application for review in this case states three broad general grounds. The first is that the tribunal’s decision is affected by an error of law; the second is that the tribunal did not take into account relevant considerations; and the third is that the tribunal failed to accord natural justice. The application for review gives no content to those very general grounds. The submissions made to me today by the applicant gave no content to those grounds either.

16.    Having regard to the tribunal’s reasons for decision and the way in which the tribunal dealt with the application I am satisfied that there is no reasonably arguable ground of review. The tribunal’s decision was demonstrably correct. The tribunal had no discretion, of course. It needed to be satisfied that the time of decision criteria identified by it were satisfied by the applicant. It was not satisfied about those matters and on the evidence before it, nor could it be. In my view, there are no reasonably arguable grounds of review. I would go so far as to say that the application for review is hopeless and bound to fail.

23    As it is clear that the decision of the Federal Circuit Court was one refusing an extension of time under s 477(2) of the Act, I have no power or competency to consider this application for an extension of time and leave to appeal. The Minister’s contentions in relation to the notice of objection to competency must be accepted.

24    Even if that were wrong and it was within this Court’s power to examine the application for leave to appeal and an extension of time, I am not persuaded that there is anything in the circumstances of this case which demonstrates that an extension of time ought be allowed. The grounds of the application fail to establish any error on the part of the primary judge, nor in his Honour’s consideration of the prospective review grounds. The application must be dismissed with costs.

Associate:

Dated:    24 February 2017