FEDERAL COURT OF AUSTRALIA

Mir v Minister for Immigration and Border Protection [2018] FCA 697

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 7 July 2017 be dismissed.

2.    The applicant pay the costs of the first respondent as agreed or taxed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    In March 2016, Mr Zubair Ali Mir, a citizen of India, applied for a Skilled (Provisional) (Class VC) (subclass 485) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection. Mr Mir applied to the Administrative Appeals Tribunal for a review of that decision. That review application was unsuccessful. The Tribunal affirmed the decision to refuse to grant the visa to Mr Mir. Mr Mir challenged the Tribunal’s decision in judicial review proceedings commenced in the Federal Circuit Court of Australia. The primary judge in the Circuit Court dismissed that application on the basis that Mr Mir had failed to advance an arguable case of jurisdictional error on the part of the Tribunal.

2    In this application, Mr Mir sought an extension of time to file an application for leave to appeal from the primary judge’s dismissal of his review application.

background

3    Mr Mir applied for the visa on 15 March 2016. To be eligible for the visa, Mr Mir was required to satisfy the criteria in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) including, relevantly, cl 485.213. At the time that Mr Mir lodged his visa application, the criterion in cl 485.213 of the Regulations was in the following terms:

When the application was made, it was accompanied by evidence that:

(a)    the applicant; and

(b)    each person included in the application who is at least 16;

had applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

4    In light of that clause, the first page of the visa application form lodged by Mr Mir contained the following question:

Have you and all persons included in this application who are 16 years of age or over, applied in the last 12 months to the Australian Federal Police for a check of criminal records?

5    In response to that question, Mr Mir answered “no”.

6    On 13 May 2016, the delegate refused to grant the visa to Mr Mir. The delegate was not satisfied that Mr Mir met the criterion in cl 485.213 of Schedule 2 to the Regulations, as Mr Mir had declared in his application form that he had not applied for an Australian Federal Police check in the last 12 months.

tribunal’s review and decision

7    On 2 June 2016, Mr Mir lodged an application for review of the delegate’s decision with the Tribunal. On 7 October 2016, Mr Mir’s representative provided an Australian Federal Police check dated 30 September 2016 in respect of Mr Mir to the Tribunal.

8    On 14 October 2016, Mr Mir appeared before the Tribunal with the assistance of his migration agent.

9    On 17 October 2016, the Tribunal affirmed the decision under review.

10    In its Reasons, the Tribunal stated that cl 485.213 of Schedule 2 to the Regulations required that, when the visa application was made, it was accompanied by evidence that Mr Mir had applied for an Australian Federal Police check during the 12 months immediately before the date the application was made. The Tribunal noted that the delegate had refused to grant Mr Mir the visa on the basis that he had responded negatively to the question on his visa application form about whether he had applied for an Australian Federal Police check. There was also no evidence before the delegate that indicated that Mr Mir had applied for such a check in the 12 months before the date the visa application was made.

11    The Tribunal acknowledged that Mr Mir had ultimately provided an Australian Federal Police check, but noted that this check was dated 30 September 2016, more than six months after the visa application was filed. The Tribunal noted that there was no information before it that Mr Mir had applied for the check before he filed his visa application. In those circumstances, the Tribunal found that Mr Mir only took steps to apply for an Australian Federal Police check after his visa application was made. He therefore did not satisfy cl 485.213 of Schedule 2 to the Regulations. The Tribunal accordingly affirmed the decision under review.

the circuit court proceedings and judgment

12    Mr Mir applied to the Circuit Court for judicial review of the Tribunal’s decision. His application advanced the following ground (as drafted):

1.    The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

13    Perhaps not surprisingly, given the brief and uninformative terms of Mr Mir’s application, the primary judge set the matter down for a hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). At such a hearing, known as a “show cause” hearing, the Circuit Court can dismiss the application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) makes it clear that such a dismissal is interlocutory in nature.

14    At the hearing before the primary judge, Mr Mir was invited to explain the basis of his case for the relief claimed. In his Judgment, the primary judge recorded Mr Mir’s response to the invitation in the following terms (Judgment at [13]-[14]):

I invited Mr Mir to make oral submissions today. He explained that he had previously successfully applied online for a student visa and, having successfully completed his initial course, he applied for the visa in issue in order to undertake higher education studies. He applied for the visa online. Mr Mir submits that there are technical problems with the online application process, which I have heard previously in other cases, and that he was not put on notice of any obligation to provide a police check. It came, therefore, as a most unpleasant surprise for him to be told that his failure to provide a police check before his visa application prevented him from obtaining the visa he sought.

Mr Mir referred me to the decision of this Court in Gowda & Ors v Minister for Immigration. That decision appears to rely implicitly on the decision of the High Court in Berenguel v Minister for Immigration (Berenguel) concerning an English language visa requirement which, as the High Court found, could be satisfied up to the time of decision. Mr Mir submits that the same is true here. The short answer to that proposition is that the visa criterion in issue, clause 485.231 [sic] of schedule 2 to the regulations, requires that each applicant have applied for an Australian Federal Police check during the 12 months immediately before the day the application is made.

(footnotes omitted)

15    The primary judge found that the decisions in Gowda & Ors v Minister for Immigration & Anor [2016] FCCA 3491 and Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 did not assist Mr Mir. His Honour reasoned (Judgment at [15]) that as the wording of cl 485.213, at the time when Mr Mir lodged his visa application, reflected “amendments to a range of criteria that followed the High Court’s decision in Berenguel and which were specifically intended to overcome the result in that decision”, it was “no longer open to argue that the criterion could be met at the time of decision as opposed to the time of application”.

16    The primary judge noted that the outcome was “unfortunate” for Mr Mir who, his Honour considered, was an engineer, of good character and who had been “brought undone by a technical visa requirement which he did not understand and of which he was not given notice prior to his application”. The primary judge considered that, in those circumstances, the matter might be suitable for referral to the Minister as Mr Mir’s situation appeared to have “worked an injustice”.

17    The primary judge found (Judgment at [18]) that Mr Mir’s sole ground of review was misconceived as the only issue on the review was whether he had applied for an Australian Federal Police check in the 12 months immediately before he lodged his visa application. As such, his Honour concluded that there were no “claims” for the Tribunal to consider. The primary judge considered that the Australian Federal Police check ultimately provided to the Tribunal dated 30 September 2016 did not assist Mr Mir as he was required to have applied for the check before his visa application was lodged.

18    The primary judge concluded that Mr Mir was unable to advance an arguable case of jurisdictional error by the Tribunal and, accordingly, dismissed the application pursuant to r 44.12(1)(a) of the Circuit Court Rules.

application for extension of time and leave to appeal

19    Mr Mir sought an extension of time to file an application for leave to appeal from the judgment of the Circuit Court. Leave to appeal was required because the dismissal of Mr Mir’s case pursuant to r 44.12 of the Circuit Court Rules was an interlocutory decision. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provided that an appeal shall not be brought from an interlocutory judgment unless the Court or a Judge gives leave. An extension of time was required because r 35.13 of the Federal Court Rules 2011 (Cth) provided that an application for leave to appeal must be filed within 14 days after the date on which judgment was pronounced. Mr Mir filed his application for leave to appeal three days outside that time period.

Applicant’s adjournment request

20    On 10 April 2018, Mr Mir wrote to the Registry and requested that the hearing be postponed because he would be “traveling back to [his] home in the month of May as [his] mother [was] undergoing surgery”. On 26 April 2018, I refused Mr Mir’s request for an adjournment. In setting out my reasons for that refusal, it is necessary to first say something about the history of this matter since it was filed in this Court.

21    Mr Mir filed his application in this Court on 7 July 2017. On 4 August 2017, orders were made by a Registrar of the Court in chambers, timetabling the matter towards a hearing. The matter was ultimately listed for hearing on 22 November 2017 before Siopis J.

22    The hearing proceeded before Siopis J on 22 November 2017. At the outset of the hearing, his Honour raised with the parties a potential question of law raised by the application. In those circumstances, his Honour thought it appropriate to adjourn the hearing to enable Mr Mir to obtain legal assistance in accordance with a certificate issued by the Court pursuant to r 4.12 of the Rules. Siopis J also made orders granting leave to Mr Mir to amend his application to include any proposed grounds of appeal, presumably following an appointment with pro bono counsel.

23    Following enquiries by the Registry, the matter was accepted by pro bono counsel. On 16 March 2018, an email was sent by the Registry to Mr Mir, his pro bono counsel and the Minister’s solicitors. That email notified the parties that “the Court [was] considering a possible listing of this matter in the 7 May – 1 June 2018 Sitting Period in Sydney” and requested that the parties advise of any unavailable dates during that period. Pro bono counsel appointed to provide legal assistance to Mr Mir responded to that email on 19 March 2018, requesting more time to advise on his availability for a hearing as he had been unable to contact Mr Mir. On 21 March 2018, pro bono counsel again sought additional time to advise the Court on hearing availability, as he had not yet been able to meet with Mr Mir.

24    In late March 2018, pro bono counsel wrote to the Registry, seeking permission to cease providing pro bono assistance to Mr Mir pursuant to rr 4.15 and 4.16 of the Rules. The basis for pro bono counsel’s request was that Mr Mir had twice failed to attend appointments and was unable to be contacted. A Registrar of the Court granted Mr Mir’s pro bono counsel permission to cease providing legal assistance.

25    On 3 April 2018, Mr Mir responded to the Registry’s email of 16 March 2018, indicating that he “[did not] have any counsel appointed to represent [him]” and that he was not available in the May sitting period, as his mother was undergoing a major operation and he was responsible for caring for her for at least two months. Mr Mir requested that the hearing be postponed until the next sitting period. On the same day, the Registry responded to Mr Mir and notified him that his request had been noted.

26    On 9 April 2018, an email was sent by the Registry to Mr Mir, notifying him that his application had been listed for a hearing on Tuesday, 8 May 2018. The following day, Mr Mir advised the Registry, by reply email, that he was travelling “back to [his] home” in May as his mother was undergoing surgery and requested that the hearing be adjourned until the next sitting period. Mr Mir attached his travel itinerary, which showed the details of his plans to travel to India, departing Australia on 3 May 2018 and returning on 22 July 2018. The itinerary indicated that Mr Mir’s bookings were made on 5 April 2018, almost three weeks after he was first notified of the potential May 2018 listing.

27    The Minister opposed Mr Mir’s request for an adjournment on the basis that his application was first filed in July 2017, that Mr Mir had been on notice of the potential May listing since 16 March 2018 and that he had not provided evidence of his mother’s illness. On 20 and 23 April 2018, Mr Mir provided a number of documents which appeared to refer to both his and his mother’s medical conditions or circumstances. The documents were, however, extremely difficult to read, let alone understand. One of the documents appeared to indicate that Mr Mir’s mother was to undergo knee reconstruction surgery.

28    The Minister maintained his opposition to Mr Mir’s adjournment request, noting that the travel itinerary had been issued on 5 April 2018, which was after the parties had been informed of the proposed listing period.

29    The manner in which Mr Mir made his adjournment request was, with respect, most unsatisfactory. Some allowance must be made for the fact that Mr Mir was not legally represented. That said, adjournment applications should generally be made by the filing of an interlocutory application and supporting evidence, or at least made in open court. They should not generally be made by way of email correspondence with the Registry and the Judge’s associate.

30    In any event, the material supplied by Mr Mir did not support the request for an adjournment of his hearing. While Mr Mir’s situation was, and perhaps continues to be, somewhat unfortunate, the fact remained that the proceedings had been on foot since July 2017. Mr Mir had been aware of the potential for his application to be listed for hearing during the May sitting period since 16 March 2018 by virtue of the email sent on that date by the Registry. Mr Mir’s itinerary appeared only to have been finalised after he was advised of the potential May 2018 hearing date. Mr Mir did not provide any compelling reason why he could not postpone his departure for India by less than one week to accommodate the hearing of his application.

31    Mr Mir had already effectively been granted one adjournment, in November 2017, in order to allow him to obtain legal assistance with a referral from the Court. In spite of arrangements being made by the Registry and pro bono counsel being appointed to represent him, it did not appear that Mr Mir wished to avail himself of that opportunity. Mr Mir could, of course, have availed himself of the services of pro bono counsel and returned to India without the need for his application to be adjourned.

32    Mr Mir’s requested adjournment would have further postponed the hearing of his application. The result would have been that the hearing would not have taken place until late July 2018, or perhaps even later. That would be well over a year after the application was first filed. Such a delay would, in all the circumstances, have been most unacceptable. For all the reasons just given, and taking into account the procedural history of the matter, I was not satisfied that Mr Mir had advanced a sufficient basis for an adjournment. The matter remained listed for hearing before me today.

Grounds and submissions

33    A consideration relevant to the exercise of the Court's discretion to extend the time within which an application for leave to appeal may be filed is the likelihood of leave to appeal being granted: Croker v Philips Electronics Australia Ltd [2000] FCA 1731 at [5]. In considering whether leave to appeal should be granted, the first limb of the relevant test generally involves a consideration of whether the decision is attended with sufficient doubt to warrant it being reconsidered by an appellate court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

34    It is convenient, then, to first consider whether Mr Mir has demonstrated that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave. The starting point is usually the draft grounds of appeal. Unfortunately, Mr Mir did not file a draft notice of appeal with his application, despite being directed to do so by the Registrar. Instead, his application for an extension of time and leave to appeal contained the following three grounds, which perhaps may be read as draft grounds of appeal (as drafted):

1.    The trial judge erred in considering the irreparable loss of the appellant due to his genine migration case with the Department of Immigration and Border Protection.

2.    The trial judge erred in considering that the Second Respondent made an error in respect to the procedural matter of the Second Respondent.

3.    The trial judge erred in considering that the constructive failure of the Second Respondent in determining the situation of the appellant.

35    Mr Mir did not file any written submissions as directed by the Registrar. He did, however, make oral submissions. Those oral submissions were not directed to his proposed grounds of appeal. Rather, he essentially advanced two arguments of substance concerning the proper construction of cl 485.213.

36    First, as he had done before the primary judge, Mr Mir relied on the decisions of the High Court in Berenguel, and the Circuit Court in Gowda. Both of those cases, however, concerned the construction of different visa criteria. The criterion in question in Berenguel concerned, in general terms, whether the visa applicant had satisfied the English language requirements in cl 885.213 in Schedule 2 to the Regulations. The criterion in question in Gowda also appeared to concern English language requirements, though the precise content of that criterion is unclear from the judgment. In any event, Mr Mir submitted that both Berenguel and Gowda supported his contention that cl 485.213 should be construed in such a way as to permit a visa applicant to provide evidence concerning an application for an Australian Federal Police check after the visa application was made.

37    Second, Mr Mir submitted, in effect, that the proper construction of cl 485.213 was that it imposed a criterion for the making of a valid visa application, as opposed to a criterion for the grant of the visa. It followed that non-compliance with cl 485.213 simply meant that the visa application was not validly made. It did not provide the basis for a refusal to grant the visa.

38    Mr Mir submitted, in that context, that the visa application should not have been allowed to “go forward” if the requirement in cl 485.213 was not satisfied at the time of the lodgement. He pointed to the difficulties that may be encountered in respect of such a requirement when lodging a visa application online and to the unfairness of the operation of the relevant provisions. He also submitted, in effect, that it was unfair that he was not put on notice of the requirement that his application be accompanied by evidence of his application for an Australian Federal Police check.

merits of the proposed appeal

39    Mr Mir’s proposed grounds of appeal were, at best, unhelpfully vague and ambiguous, if not bordering on incomprehensible. Something more will be said about those grounds of appeal in due course.

40    The main difficulty for Mr Mir was that there did not appear to be any dispute, or at least, no reason to doubt, that he did not comply with the criterion in cl 485.213 of Schedule 2 to the Regulations. That was because, when he made his visa application, the application was not accompanied by evidence that he had applied for an Australian Federal Police check during the 12 months immediately before the date that the application was made. That was clear from the answer given by Mr Mir himself on the first page of his visa application. Mr Mir did not apply for an Australian Federal Police check until a number of months after the delegate had refused his application and after he had lodged his review application with the Tribunal.

41    Mr Mir’s submission concerning the proper construction of cl 485.213 has no merit and must be rejected. Contrary to Mr Mir’s submissions, it was clear from the fact that cl 485.213 was contained in Schedule 2 of the Regulations that it was a criterion relating to the grant of the visa, as opposed to a criterion relevant to whether a visa application has been validly lodged.

42    Section 31(3) of the Act provided that the Regulations: “…may prescribe criteria for a visa”. Regulation 2.03 provided that the prescribed criteria for the grant of a visa were set out in Schedule 2 to the Regulations. That was where cl 485.213 was to be found.

43    It was equally clear that cl 485.213 did not relate to the validity of the visa application. Section 46 of the Act contained provisions relating to the validity of visa applications. Section 46(3) of the Act provided that: “the Regulations may prescribe criteria that must be satisfied for an application for a visa … to be a valid application”. Regulation 2.07 provided, in short terms, that the criterion relating to the validity of visa applications were set out in Schedule 1. Needless to say, cl 485.213 did not appear in Schedule 1. Criteria relevant to the validity of the visa in Mir Mir’s case were set out in cl 1229 of Schedule 1.

44    It should also perhaps be noted in this context that, whilst it may be correct, as Mr Mir submitted, that the Regulations and, in particular, cl 485.213 may operate harshly in some circumstances, that itself does not provide him with a ground of review. Nor does it provide him with a ground of appeal from the judgment of the primary judge. It is not entirely correct for Mr Mir to say that he was not given any notice of the requirement created by cl 485.213. At the top of the first page of the visa application completed by Mr Mir, the following words appeared:

To be eligible to be granted a subclass 485 visa through the Post-study work stream, you must have already taken steps to meet certain requirements and obtain documentation before you lodge your application. If you do not meet the requirements below, you may not be able to lodge or to be granted a visa.

45    As for Mr Mir’s submissions based on Berenguel and Gowda, those were effectively the same arguments that were put to, and rejected by, the primary judge. The primary judge was correct to reject those arguments. In the cases of both Gowda and Berenguel, the criteria under consideration were materially different and distinguishable from cl 485.213. The High Court in Berenguel expressly distinguished a criterion which was in relevantly identical terms to cl 485.213 (see Berenguel at [17]).

46    It is quite clear from the terms of cl 485.213 that the requirement must be satisfied “when the application was made”. Here, it was not. It is equally clear that there is a second temporal requirement, that requirement being that the application for the Australian Federal Police check be made during the 12 months immediately before the day the application is made. That requirement was also not satisfied in Mr Mir’s case.

47    The fact that Mr Mir subsequently applied for an Australian Federal Police check is immaterial, as unfortunate as that may be for Mr Mir. Regrettably, the technical requirements of the Act and the regulations operate harshly for some visa applicants. That itself, however, is no reason to construe the provisions differently.

48    Mr Mir’s submissions in relation to Berenguel and Gowda are also contradicted by a decision of Katzmann J in Anand v Minister for Immigration & Citizenship [2013] FCA 1050. In that decision, her Honour considered and construed cl 487.216 of Schedule 2 to the Regulations, which was in relevantly identical terms to the criterion in question in this case. The facts and circumstances of Anand were also relatively similar to the facts and circumstances of this case. Her Honour resolved the question of construction in relation to cl 487.216 in the following terms (at [28]):

For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, 5 months after the application was lodged and 2 days after the decision was made. Language cannot be stretched so far that it snaps: compare Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 79 . In contrast to the position in Berenguel the construction for which Mr Anand contended would compromise the purpose of the Regulations.

49    It may be the case that, had Mr Mir applied for his Australian Federal Police check prior to lodging the application, and had forwarded it to the Minister’s Department within a short period of time after making the application, he may have met the relevant criterion having regard to the findings of Katzmann J in relation to the elasticity of the words “accompanied by”. Unfortunately for Mr Mir, however, he did not apply for his Australian Federal Police check before he submitted his visa application. He only provided evidence of that police check some months thereafter.

50    As for Mr Mir’s proposed grounds of appeal, it should be noted again that Mr Mir’s oral submissions were not at all addressed to his proposed grounds of appeal. To the extent it is possible to understand Mr Mir’s first appeal ground, it appeared to contend that the primary judge erred in not considering the “irreparable loss” that Mr Mir would suffer if his visa application was refused. The primary judge expressed sympathy for Mr Mir’s situation and, in that sense, had regard to the loss that Mr Mir might suffer having regard to the refusal of his visa application. His Honour rightly found, however, that the unfortunate result for Mr Mir was largely immaterial. It was not relevant to considering whether the Tribunal had made any jurisdictional error.

51    As for ground two, it is unclear exactly what “procedural matter” Mr Mir contended the Tribunal erred in relation to. If the complaint related to the fact that Mr Mir only applied for the Australian Federal Police check after his application had been made and dismissed, that was no mere “procedural matter”. The Tribunal correctly found that it went directly to the question of whether Mr Mir had satisfied cl 485.213.

52    Ground three appears to amount to little more than an assertion of error on the part of the Tribunal. The nature of the alleged “constructive failure” was unclear.

53    The primary judge was correct to find that Mr Mir’s application did not demonstrate or raise an arguable case of jurisdictional error by the Tribunal. The decision of the primary judge is not attended by any, or any significant, doubt to warrant consideration by the Full Court.

delay and prejudice

54    Mr Mir filed his application three days out of time. His explanation for that appeared to be that he believed he had 21 days, not 14 days, in which to file his application. That confusion is perhaps understandable. The Minister did not contend that he had, or would, suffer any prejudice as a result of the very short delay. If Mr Mir’s proposed appeal had any, or any reasonable, prospects of success, there would have been no real reason to deny him an extension of time. For the reasons already given, however, Mr Mir has not demonstrated that his proposed appeal has any merit, or that the decision of the primary judge is attended by any, or any sufficient, doubt.

conclusion and disposition

55    Like the primary judge, I have some considerable sympathy for Mr Mir’s predicament. The relevant visa criterion operated particularly harshly and, in some respects, rather arbitrarily in his case. Nevertheless, that did not provide him with any ground of review before the primary judge. Nor does it provide him with a ground of appeal from the decision of the primary judge.

56    Mr Mir’s application for an extension of time and leave to appeal must be dismissed because the proposed appeal has no merit.

57    Mr Mir has not provided any reason why he, as the unsuccessful party, should not pay the Minister’s costs of the application. Accordingly, he should be ordered to pay those costs.

Associate:

Dated:    18 May 2018