FEDERAL COURT OF AUSTRALIA

Khudayberganova v Minister for Immigration and Border Protection [2017] FCA 516

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time filed on 16 December 2016 be dismissed.

2.    The applicant pay the first respondent’s costs fixed in the sum of $1,962.00.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    The applicant applies for an extension of time within which to file an appeal from a judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 11 November 2016. The Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal), dated 11 November 2014 which affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa. The last day for the filing of a notice of appeal, as mandated by r 36.03 of the Federal Court Rules 2011 (Cth) (Rules), was 5 December 2016. The applicant filed her application for an extension of time on 16 December 2016.

background

2    The applicant is a citizen of Uzbekistan. She entered Australia on 4 November 2013 on a visitor visa which expired on 4 February 2014. On 4 February 2014 the applicant applied for the student visa. It was common ground that, as the applicant had applied onshore in Australia for the student visa while holding a visitor visa, she had to establish “exceptional reasons” for the grant of the student visa.

3    In a letter dated 3 February 2014 attached to her student visa application the applicant recited her immediate family history and her studies in London and stated her intention to study in Australia and return to Uzbekistan to improve its health system. By letter dated 7 February 2014 the then Department of Immigration and Citizenship (Department) requested that the applicant provide additional information and provide “exceptional reasons” for her onshore application in accordance with cl 572.227 of the Migration Regulations 1994 (Cth) (Regulations).

4    At the hearing before the Federal Circuit Court the applicant asserted that by an email dated 25 February 2014, amongst other things, she asked the Department to (as written):

[K]indly please explain what reasons are you considering as compelling as you have requested this information a few days ago.

5    On 15 April 2014 the delegate refused the applicant’s application for the student visa. On 5 May 2014 the applicant applied to the Tribunal for review of the delegate’s decision. She provided an undated letter with her application for review setting out additional supporting information and complaining that the Department had failed to advise her what were “exceptional circumstances”. On 11 November 2014 the Tribunal affirmed the delegate’s decision.

The Tribunal Decision

6    The Tribunal identified the issue in the case as whether the applicant had established “exceptional reasons” for the grant of the visa as required by cl 572.227 of the Regulations.

7    The Tribunal referred to the two written submissions that the applicant had made in support of her application. It noted that the applicant had raised issues regarding her family background, her previous successful study, her desire to study in Australia and that she would like to contribute to her own country’s health system on her return to Uzbekistan. The Tribunal found that the applicant’s previous study and her wish to contribute to her home country in the future did not make her application exceptional, nor did her family background.

8    The Tribunal concluded that there was nothing in the applicant’s circumstances that enabled it to find that the applicant had satisfied cl 572.227 of the Regulations. Accordingly, the Tribunal affirmed the decision not to grant the student visa to the applicant.

Federal Circuit Court proceeding

9    The applicant commenced her proceeding in the Federal Circuit Court seeking judicial review of the Tribunal’s decision on 4 December 2014. The applicant relied on the following grounds in the Federal Circuit Court:

Ground 1.    The MRT misunderstood my exceptional circumstances.

Ground 2.    The Department has also failed to respond to my enquiry.

10    Before addressing those grounds, the primary judge considered the applicant’s email dated 25 February 2014. The issue of the sending of that email had only arisen at the hearing before the primary judge. After considering the matter, the primary judge found, doing the best he could and without the benefit of cross-examination, that, on the balance of probabilities, the applicant did send the email and that there was no response from the Department.

11    In relation to the first ground raised in the applicant’s application, the primary judge found that no jurisdictional error had been committed by the Tribunal and that the Tribunal’s decision was open to it on the evidence before it. In coming to that view the primary judge referred to the meaning of “exceptional reasons” as discussed by Smith FM in Kim v Minister for Immigration [2008] FMCA 1577 and noted that an appeal from that decision was dismissed by Buchanan J in Kim v Minister for Immigration and Citizenship [2009] FCA 161. His Honour noted that the Tribunal had a wide discretion as to what matters it could consider, either individually or cumulatively, in assessing whether an applicant has shown exceptional reasons and that the Tribunal had recited the applicant’s circumstances, including her family background, her previous successful studies, her desire to study in Australia and her desire to contribute to the health system in Uzbekistan upon her return.

12    In relation to the second ground raised by the applicant in her application, the primary judge noted that it was for the applicant to advance and establish a case. His Honour further noted that he was not reviewing the decision of the delegate but that of the Tribunal and that, by the time the Tribunal hearing commenced, the applicant knew from the delegate’s decision that her student visa had been refused because she had not provided “exceptional reasons” for its grant. His Honour also noted that the transcript of the Tribunal hearing established that the applicant agreed with the Tribunal member that she understood that she was required to show exceptional reasons. Finally, his Honour found that whether or not the email dated 25 February 2014 was sent did not matter because the Department was not bound or required to advise an applicant in connection with the relevant criteria applicable to the grant of a visa or to advise on the evidence appropriate to satisfy those criteria.

The Application for an extension of time

13    The applicant seeks an extension of time within which to file an appeal from the decision of the Federal Circuit Court delivered on 11 November 2016. Pursuant to r 36.03 of the Rules the applicant was required to file her notice of appeal within 21 days after the date on which the judgment of the Federal Circuit Court from which she appeals was pronounced or the orders were made, that is, within 21 days after 14 November 2016, or by 5 December 2016. The applicant did not file within that time. She filed her application for an extension of time to file her appeal on 16 December 2016, that is, 11 days after the time fixed by r 36.03 of the Rules to file a notice of appeal.

14    The applicant’s application for an extension of time is accompanied by a draft notice of appeal which sets out two grounds of appeal. They are, as written:

1.    I do not agree with the judgment of His Honour Judge Dowdy especially that the Department failed to put to me the exceptional circumstances as well as the Tribunal misunderstood my exceptional circumstances.

2.     The Tribunal as well as His Honour were aware that I did not have independent enquiries or engaged a lawyer or migration agent to give me an advice. I still believe that it was the duty of the department to reply to my letter and give explanation because at the time I was not represented.

15    The applicant’s application is also accompanied by an affidavit affirmed by the applicant on 16 December 2016. In that affidavit, the applicant says that she was unable to lodge an appeal on time because of her compelling circumstances. The reason given for the delay in filing the notice of appeal is “serious circumstances affecting my both children who were admitted to hospital as well as my pregnancy”. The applicant annexes the following documents to her affidavit:

(1)    a discharge summary from the Children’s Hospital at Westmead for a two year old male child, who, I infer, is the applicant’s son, which indicates that he was admitted to hospital on 24 August 2016 with eczema and discharged on 29 August 2016;

(2)    a discharge summary from the Children’s Hospital at Westmead for an 11 month old female child, who, I infer, is the applicant’s daughter, who presented with eczema and was discharged on 29 August 2016;

(3)    a referral letter dated 8 October 2016 from the Children’s Hospital at Westmead to Pacific Medical Centre for the two year old male child relating to his eczema;

(4)    a pregnancy ultrasound report dated 28 September 2016 from Western Imaging Group for the applicant indicating that, at the time, the applicant was 18 weeks and 4 days pregnant with “no morphological abnormality” identified; and

(5)    four tax invoices/receipts dated between 19 October 2016 and 30 November 2016 for homeopathic consultations and remedies for the applicant’s children.

16    The applicant did not file any written submissions in support of her application. However, at the hearing she made the following oral submissions.

17    First, the applicant submitted that both the Tribunal and the primary judge misunderstood her. She submitted that the Department failed to provide an explanation of the meaning of “exceptional reasons” and that she was denied fairness because the Department did not respond to her email.

18    Secondly, the applicant submitted, referring to the observations of the primary judge at [23] of his Honour’s reasons that she is an intelligent, articulate and educated person, that, despite that, she does not know the definition of specific terms. That is why she was asking the Department what was meant by “exceptional reasons”, but it did not reply. The applicant said that she did not expect the Department to be an advisor but that she expected a reply. She further submitted that the term “exceptional reasons” is a broad term.

19    Finally, the applicant submitted that she was pregnant at the time of the filing of her student visa application and that that had affected her mental state because she was to be a first-time mother without family support. She said that she hoped that the Department would consider those circumstances as exceptional.

consideration

20    The Court’s power to grant an extension of time is discretionary. In considering whether leave should be granted, the Court will usually consider whether the delay has been adequately explained; whether there would be any prejudice to the respondent in defending the proceeding caused by the delay, although the mere absence of prejudice to a respondent is not enough to justify the grant of an extension; and the merits of the substantive application: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J).

21    I turn now to consider the matters raised by the applicant in support of her application. The applicant’s delay in filing her application is 11 days. While that period is relatively brief, in my opinion, her evidence does not adequately explain the delay. She says that it was caused by the health of her children and her own pregnancy. However, save for the two invoices referred to below, the medical evidence provided does not correspond with the period between 11 November 2016 and 5 December 2016, being the 21 day period during which a notice of appeal should have been filed, nor does it provide any reasons for the applicant having been precluded from filing her appeal within the required period. The evidence shows that her children were suffering from eczema prior to 11 November 2016 and that as at late September 2016 the applicant was pregnant, but that there were no abnormalities with her pregnancy at that time.

22    There are two invoices that indicate that the applicant’s children each attended a homeopath in the period during which she was required to file her appeal. The applicant submitted from the bar table that those visits were for treatment for her children’s eczema as they were not responding to “western treatments”. However, it is unclear how those attendances would have precluded her from filing her appeal within time based on the evidence that is before me.

23    Even if I were to accept the applicant’s reasons for the delay, I am not satisfied that there is any merit in any proposed appeal.

24    The applicant’s draft notice of appeal identifies two proposed grounds of appeal. In the first ground the applicant says that she disagrees with the primary judge’s judgment, that the Department failed to put to her the “exceptional circumstances” and that the Tribunal misunderstood her “exceptional circumstances”. The primary judge found at [26] of his reasons that the Department was not bound or required to advise an applicant in connection with the relevant criteria applicable to the grant of a visa or advise on the evidence appropriate to satisfy those criteria. The applicant’s ground of appeal does no more than to disagree with that finding, which was open to the primary judge.

25    The applicant’s second ground of appeal states that the Tribunal and the primary judge were aware that she did not have “independent enquiries” or a lawyer or a migration agent to provide her with advice and that she believes that it was the Department’s duty to reply to her email and provide an explanation because she was not represented. This is not a proper ground of appeal. It does not identify an alleged error in the judgment of the primary judge. The fact that the Tribunal and the primary judge may have been aware or were aware that the applicant did not have a lawyer or migration agent to advise her does not identify any appellable error in the judgment of the primary judge or provide a proper basis for a ground of appeal. While the applicant believed that it was the duty of the Department to reply to her email, as the primary judge found at [26] and as I have already observed, that was not the case.

26    In her oral submissions the applicant also referred to the primary judge’s reference at [23] of his Honour’s reasons that she was an intelligent, articulate and educated person and that, despite that, she did not know what was meant by “exceptional reasons”. It is the case that at [23] of his reasons the primary judge said:

As I have said above, the Applicant is an intelligent, articulate and educated person and is quite able herself to understand the expression “exceptional reasons”.

27    However, as the Minister submitted, the primary judge’s conclusion that there was no jurisdictional error in the Tribunal’s decision was not based on this observation. Rather, the primary judge came to that view for other reasons to which I have already referred, including that the applicant knew by the time of the Tribunal hearing that the delegate had refused her application for a visa because she had not provided “exceptional reasons”; that the transcript of the Tribunal hearing established that the applicant agreed with the Tribunal member that she understood that she was required to show “exceptional reasons”; and that, in any event, the Department was not bound or required to advise the applicant in relation to the criteria for the visa, including what was required by “exceptional reasons”.

28    In oral submissions the applicant also referred to her pregnancy at the time of filing the visa application, said that that had affected her mental state and said that she would have hoped that the Department would take that into account as “exceptional reasons”. Based on the Tribunal’s decision, evidence of that nature does not appear to have been before the Tribunal or the Department. In its decision record the Tribunal referred to the submissions that had been made by the applicant at [4]-[5]. Those submissions related to the course that the applicant intended to undertake, her family history, the history of her own studies, her current life in Australia and her intention to return to Uzbekistan after completion of her studies and contribute to her country’s health system. There is no reference to the applicant’s pregnancy at the time of the filing of the application.

29    The applicant has not identified any arguable grounds of appeal. Accordingly, there is no utility in granting an extension of time and the application for an extension of time should be dismissed.

costs

30    As the applicant has not succeeded in her application, I propose to make an order that she pay the Minister’s costs. The Minister has applied for an order that costs be fixed in the sum of $1,962.00 pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth), which empowers the Court or a judge to award a party costs in a specified sum. The applicant indicated that she did not object to that course.

31    In support of the application the Minister relies on an affidavit affirmed by Elodie Cheesman, a solicitor in the employ of the Minister’s lawyer in this proceeding, on 4 May 2017. Ms Cheesman gives evidence that she has investigated the time recorded on the billing and time-recording system maintained by the solicitors acting for the Minister in this proceeding as at the date of affirming her affidavit. Based on that investigation and incorporating an estimate of the additional costs that the Minister will incur until finalisation of the proceeding, Ms Cheesman estimates that the total costs likely to be incurred by the Minister are $2,803.00, being the sum of $1,739.00 for costs incurred as at 4 May 2017 and $1,064.00, being the estimate of future costs.

32    Ms Cheesman gives further evidence that, based on the experience of the solicitor on the record for the Minister, Zac Chami, over a period of 15 years, the Minister generally recovers between 65% and 75% of his professional costs on taxation, including an allowable item for skill, care and responsibility. On that basis, and applying a midpoint, 70%, Ms Cheesman estimates the likely recovery by the Minister of his professional costs upon taxation will be $1,962.00. Ms Cheesman also gives evidence that, by contrast, if the Minister were to obtain an order for costs then he would be entitled pursuant to the short-form bill of costs procedure in r 40.43(3)(b) of the Rules to claim an amount which exceeds the amount claimed by the Minister in this application.

33    In light of the evidence given by Ms Cheesman I am satisfied that an order for fixed costs in the sum of $1,962.00 should be made.

Conclusion

34    In light of the conclusions I have reached I will make orders that the applicant’s application for an extension of time filed on 16 December 2016 be dismissed and that the applicant pay the first respondent’s costs fixed in the sum of $1,962.00.

Associate:

Dated:    22 May 2017