FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration and Border Protection [2018] FCA 1271

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicant pay the first respondent’s costs of the application fixed in the sum of $1756, to be paid by instalments as arranged.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an application for an extension of time within which to seek leave to appeal and, if an extension is granted, for leave to appeal, from a decision of the Federal Circuit Court dismissing an application for judicial review at a show cause hearing under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) (the FCC Rules). The application sought judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 September 2016. The Tribunal affirmed a decision of a delegate of the first respondent (the delegate) made on 5 May 2016, to refuse to grant the applicant a Student (Temporary) (Class TU) Subclass 572 visa (the visa).

2    The primary judge dismissed the application for an order to show cause pursuant to r 44.12(1)(a) of the FCC Rules. Rule 44.12(2) of the FCC rules specifies that a dismissal under r 44.12(1)(a) is interlocutory in nature. Accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

3    Pursuant to r 35.13(a) of the Federal Court Rules 2011 (the Rules), the applicant was required to file any application for leave to appeal within 14 days after the date on which the judgment appealed from was pronounced or the order was made.

4    As the primary judge made the orders on 10 November 2017, the last day for filing a notice of appeal was 24 November 2017: see r 1.61 and 35.13(a) of the Rules. The applicant did not file his application for an extension of time until 27 November 2017, three days after the expiry of the period of 14 days for filing an application for leave to appeal.

5    The first respondent filed written submissions in accordance with orders of the Court. The applicant did not. The applicant appeared today to present his case.

Background and legislation

6    The applicant is a citizen of Lebanon. He applied for the visa in March 2016. At the time he made his visa application, the applicant did not hold a substantive visa as his previous substantive visa (a Subclass 485 Temporary Graduate visa) ceased on 11 March 2016.

7    5 May 2016, the delegate refused his visa application on the basis that the applicant did not satisfy cl 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As the applicant did not satisfy cl 572.211, he did not meet the criteria for a Student (Class TU) Subclass 572 Vocational Education and Training visa.

8    Relevantly cl 572.211 provided, as at the date of application, as follows:

(1)    If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).

(2)    An applicant meets the requirements of this subclause if the applicant is:

…

(d)    the holder of a visa of one of the following subclasses:

…

(iia) Subclass 485 (Temporary Graduate);

…

(3)    An applicant meets the requirements of this subclause if:

(a)    the applicant is not the holder of a substantive visa; and

(b)    the last substantive visa held by the applicant was:

(i)    a student visa; or

(ii)    a special purpose visa; or

(iii)    a Subclass 303 (Emergency (Temporary Visa Applicant)) visa; or

(iv)    a Diplomatic (Temporary) (Class TF) visa granted to the holder as the spouse, de facto partner or a dependent relative, of a diplomatic or consular representative of a foreign country; or

(v)    a Subclass 497 (Graduate—Skilled) visa; and

(c)    the application is made within 28 days (or within such period specified in a legislative instrument made by the Minister) after:

(i)    the day when that last substantive visa ceased to be in effect;

…

9    It will be seen that a criterion for the grant of a Subclass 572 visa specified in cl 572.211(1) of Schedule 2 to the Regulations was that, at the time the application is made, the applicant meets the requirements of subclauses (2), (3), (4) or (6). Subclauses (4) and (6) are not presently relevant, and attention may be confined to subclauses (2) and (3).

10    Subclause (2) applies if, at the time of application, the applicant is the holder of a substantive visa of one of a number of specified classes, including a Subclass 485 visa. At the time the applicant applied for the visa in March 2016, however, he was no longer the holder of the Subclass 485 visa. This had ceased on 11 March 2016 and he could not satisfy this criterion.

11    Subclause (3) applies if, at the time of application, the applicant is not the holder of a substantive visa (see subclause (3)(a)). This aspect of subclause (3) was met, but subclause (3) also imposes further requirements that were not met. Specifically, subclause (3)(b) required that the last substantive visa held by the applicant was one of a number of specified classes. None of these classes included a Subclass 485 visa. Each of the requirements of cl 572.211(3) are cumulative requirements, and each must be satisfied. Further, cl 572.211(3)(c) is a mandatory requirement. If an applicant does not meet it, then the decision-maker is bound to reject the visa application. The applicant did not, therefore, meet cl 572.211(3).

the Tribunal

12    On 20 May 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision. On 22 September 2016, he attended a hearing before the Tribunal and, on the same date, the Tribunal delivered an oral decision affirming the delegate’s decision to refuse to grant him a Subclass 572 visa. The Tribunal provided a written record of its reasons on 29 September 2016.

13    The Tribunal stated (at [5]-[10]):

5.    At the time of lodgement you were not holding a substantive visa and your last substantive visa was a subclass 485 Temporary Graduate visa which ceased on 11 March 2016.

6.    As you were not the holder of a substantive visa at the time, you need to satisfy 572.211(3).

7.    As a subclass 485 visa is not one of the acceptable visa classes listed, you do not satisfy that clause 572.211.

8.    You are therefore ineligible for the grant of a student visa.

9.    This is not a matter in which the Tribunal has discretion

10.    It is therefore the decision of this Tribunal to affirm the decision under review.

In the Federal Circuit Court

14    The applicant subsequently made an application to the Federal Circuit Court seeking judicial review of the Tribunal’s decision The grounds of application were:

1.    The decision of the second respondent “AAT” member was affected by legal error.

2.    More details will be provided by me / my legal representative.

15    Orders were made by consent on 12 April 2017 listing the matter for a show cause hearing. The Federal Circuit Court also gave the applicant leave to file an amended application and written submissions. No further document was filed by him, however. By the Response filed and served by the first respondent on 17 October 2016 the applicant was put on notice that it would be said that his application failed to raise an arguable case.

16    The matter came before the primary judge for a show cause hearing on 10 November 2017. Her Honour found the grounds were meaningless and that ground two was not a ground of judicial review. The primary judge found ground one was a mere assertion that lacked particulars to make it meaningful and that it failed to address the basis of the Tribunal’s decision that the applicant did not satisfy the requirements of cl 572.211 of the Regulations, which was a primary criterion for the grant of the visa he sought. Ground 2 was not, plainly enough, a ground of judicial review.

17    The primary judge found that when the applicant applied for the visa in March 2016, he did not hold a substantive visa as his previous substantive visa (a Temporary Graduate (Subclass 485) visa) had ceased on 11 March 2016. Her Honour held the Tribunal correctly found that as a Subclass 485 visa was not one of the acceptable visa classes listed in cl 572.211(3)(b), the applicant did not satisfy cl 572.211 and was ineligible for the grant of the visa. (I observe that there is an error in para [8] of her Honour’s reasons, where the word ‘not’ has been omitted, but this is clearly an error of a typographical kind: see Ali v Minister for Immigration & Anor [2017] FCCA 2967.)

18    The primary judge also held the Tribunal was not required to consider whether the applicant’s visa application was lodged within 28 days after his last held substantive visa expired as was submitted by the applicant and required by cl 572.211(3)(c), because the requirements in cl 527.211(3) were cumulative. Accordingly, as the applicant’s last held substantive visa was not one of those listed in cl 572.211(3)(b), it could not have assisted the applicant that his visa application was made within 28 days after the day his last held substantive visa ceased to be in effect. The primary judge found that ground one therefore failed. As the application failed to make out any arguable case of error for the relief claimed, the primary judge dismissed it with costs under r 44.12(1)(a) of the FCC Rules.

consideration

19    As Perry J said in BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]:

The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210; (2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. Relevant considerations to deciding whether to grant leave to appeal include whether an appeal would have any reasonable prospects of success and whether the applicant would suffer substantial injustice if leave were refused, assuming the decision subject to appeal is wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

20    In support of his application for an extension of time, the applicant deposed that:

I say that the Court Registry originally told me that I had 21 days to lodge my appeal and I was told on Monday, 27 November 2017, that it was 14 days and not 21. That as a layperson, I had no idea that I had to make an appeal within 14 days of the date of decision, as I thought it was 21.

21    For present purposes, I accept this explanation, bearing in mind that there was no cross-examination and the applicant did not have the benefit of a lawyer.

22    The first respondent does not claim to be prejudiced by the delay.

23    An assessment of the merits of the applicant’s proposed appeal is, however, relevant both to determining the application to grant an extension of time and, if an extension were granted, to the application for leave to appeal. For the following reasons, it does not appear to me that the proposed appeal has any prospect of success, and, for this reason, the application should be dismissed.

24    The applicant’s draft notice of appeal stated the following ground of appeal:

1.    The decision of the Federal Circuit Court is affected by jurisdictional error.

Particulars

The applicant says the court has erred by holding that he does not meet the requirements of clause 572.211.

25    The applicant submitted that the primary judge erred by holding that he does not meet the requirements of cl 572.211. There was, however, no error in this determination.

26    Clause 572.211(2) was satisfied if, at the time of application, the applicant is the holder of a substantive visa of one of a number of specified classes, including a Subclass 485 visa. As explained, the applicant could not satisfy cl 572.211(2) because at the time he applied for the visa in March 2016, he no longer held a Subclass 485 visa. He held no other relevant visa at that time. He could not satisfy this criterion.

27    Clause 572.211(3) applies if, at the time of application, the applicant is not the holder of a substantive visa, but it could not avail the applicant because he could not satisfy the further requirements of that clause. The last visa that the applicant held was not one of a kind specified in subclause (3)(b), with the result that the applicant could not satisfy cl 572.211(3). In this event, the applicant’s visa application was bound to fail.

Applicant’s submissions today

28    The applicant’s submissions at the hearing today were, first, that he had only been a few days late in applying for the visa and that a reason for this was that he had been badly affected by a car accident in which he was involved, as he had told the Department. He had sought some assistance on this account. He had applied to the Federal Circuit Court, amongst other things, because he had hoped that it would be able to grant extra time for his visa application to be made. He added that he had applied to this Court, for further protection or a further chance and because there may have been a change in the law.

29    As I explained to the applicant today, neither the Federal Circuit Court nor this Court has the power to change, modify or qualify the criteria for the visa set out in cl 572.211 of Schedule 2 to the Regulations. I also sought to explain to him that the time limit in cl 572.211(3)(c) was not the only criterion he had to meet to satisfy cl 572.211(3). He was also required to establish that the last substantive visa held by him was a visa of a kind listed in cl 572.211(3)(b). Since his last substantive visa was a Subclass 485 (Temporary Graduate) visa and this was not one listed in cl 572.211(3)(b), he could not satisfy the cl 572.211(3) criterion even if he had made his visa application within the 28 days for which cl 572.211(3)(c) provided. The Subclass 497 (Graduate-Skilled) visa mentioned in cl 572.211(3)(b) was not the same as the Subclass 485 (Temporary Graduate) visa he had earlier held. The applicant apparently accepted that he could not satisfy cl 572.211(2) because, as explained above, his Subclass 485 (Temporary Graduate) visa had expired before he made his application for the visa at issue here.

disposition

30    In this case, there could be no error of the kind identified by the applicant. Since the basis on which the applicant sought to appeal has no prospect of success, his application should be dismissed. The applicant should pay the first respondent’s costs of the application fixed in the sum of $1756, to be paid by instalments as arranged.

Associate:

Dated:    22 August 2018