FEDERAL COURT OF AUSTRALIA

Wander v Minister for Immigration and Border Protection [2018] FCA 1288

ORDERS

THE COURT ORDERS THAT:

1.    The application filed by the applicant in this Court on 16 November 2017:

(a)    be treated as an application for an extension of time to seek leave to appeal from the interlocutory judgment of the Federal Circuit Court delivered on 19 October 2017; and

(b)    be dismissed under r 35.33 of the Federal Court Rules 2011 (Cth).

2.    The applicant pay the first respondent’s costs of the application, fixed in the sum of $1756.

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

REASONS FOR JUDGMENT

KENNY J:

1    On 16 November 2017 the applicant filed an application in this Court titled “Application for an extension of time”, seeking an extension of time:

a.    under rule 31.23 to lodge an application for the review of a migration decision of [the Federal Circuit Court] made on 19th October 2017 in MLG226/2017 of the Federal Circuit Court;

b.    under rule 36.05 to file a notice of appeal against the said decision.

2    The application was supported by an affidavit made by the applicant on 16 November 2017. The applicant did not file written submissions.

3    The respondent Minister filed two notices of objection to competency, both dated 19 January 2018, discussed below. The respondent Minister relied on an affidavit of Ms Chloe Hillary, solicitor, affirmed on 19 January 2018, and on written submissions.

4    The issues to which this application gives rise are best understood by reference to the applicant’s relevant migration history.

background

5    The applicant is an Indian citizen. On 29 March 2016, she applied for a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (Visa).

6    At the time of her application, the primary criteria for the visa were set out in Part 572 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevantly, the applicant was required, pursuant to cl 572.225, to give to the Minister “evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia”. Clause 572.231 required the applicant to be enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course, of a type specified by the Minister under r 1.40A of the Regulations.

7    By letter dated 13 July 2016 a delegate of the respondent Minister (delegate) informed her that her application had been refused on the basis that she did not meet cl 572.225 because she had failed to provide evidence of Overseas Student Health Cover.

8    On 22 July 2016, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal). The Tribunal identified the issue before it as whether or not, at the time of decision, the applicant met the enrolment requirements and the health insurance requirements for the Visa. On 13 January 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the Visa.

9    It is unnecessary here to refer to the procedural history of the matter in the Tribunal. It is sufficient to note that, at the Tribunal’s request, the applicant sent an email dated 15 December 2016 to the Tribunal, attaching a letter from Allianz (an insurer) dated 29 September 2016, which repeated that she had health insurance from 8 March 2016 to 28 September 2017. The applicant also provided a copy of a confirmation of enrolment in a Diploma of Business at Chambers Institute from 28 March 2016 to 26 March 2017. When the applicant appeared before the Tribunal on 9 January 2017, the Tribunal invited the applicant to comment on the PRISMS records (a register of course enrolments managed by the Department of Education and Training) which indicated that the applicant’s enrolment in the Diploma of Business at Chambers Institute was cancelled on 9 August 2016. The applicant agreed her enrolment in the Diploma of Business had been cancelled and stated that this was because her father was not able to pay the course fees. The applicant requested an adjournment so that she could apply for a new confirmation of enrolment, indicating that she planned to undertake further English language studies to pursue studies in nursing. The Tribunal agreed to defer making a decision for two days, for the applicant to provide a new confirmation of enrolment. The Tribunal also explained to the applicant that if she obtained a new confirmation of enrolment, she would need to ensure she had health insurance in place to cover the period of the new enrolment. Having received no further information from the applicant, the Tribunal made its decision affirming the delegate’s decision not to grant the visa, first on the basis that there was no evidence before it that the applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study, and second, on the basis that since it could not be satisfied of the period of the applicant’s intended stay, it could not be satisfied that she had given evidence of adequate arrangements in Australia for health insurance during the period of her intended stay in Australia.

10    On 3 February 2017, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

11    The applicant raised ten grounds of review:

1.    That the member erred in affirming the review application by relying on the evidence DIBP provided to refuse the visa.

2.    The DIBP Case officer erred in considering the grounds for not to refuse the student visa.

3.    Despite of more reasons for not to refuse the visa, he made up his own mind to refuse the visa.

4.    DIBP erred in not considering the findings that I was in the race to find the other alternatives to pay my fee as it can breach my visa condition and they did not provided any extra time even they were fully aware of my conditions.

5.    AAT concluded that they cannot grant the extension of time as DIBP haven't provided me time for the same matter. They showed sympathy but affirm the DIBP decision without giving extra time and proper reasons for the affirmed decision.

6.    The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons.

7.    The member did not considered the compelling reasons that weigh my case for not to refuse my student visa.

8.    The time provided to me was during the Christmas holidays and I was unable to give the required information on time.

9.    My visa application raises an arguable case in relation to not refuse the visa.

10.    That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.

12    On 19 October 2017, the primary judge dismissed the application, under r 44.12(1)(a) of the Federal Circuit Court Rules 2011 (Cth) (the FCC Rules), on the basis that none of the grounds raised an arguable case for the relief claimed.

13    The primary judge held that the applicant’s assertion in the first ground was incorrect, as the Tribunal had conducted a de novo merits review. Although one of the dispositive issues was the same as before the delegate, the Tribunal made its own assessment of the evidence before it in deciding whether or not the applicant satisfied cl 572.231 of Schedule 2 to the Regulations.

14    The primary judge held that the second, third and fourth grounds involved claims about errors by the delegate, and the Court had no jurisdiction to review the decision of the delegate pursuant to s 476(2)(a) of the Migration Act 1958 (Cth) (Act).

15    The primary judge was not satisfied that ground 5 gave rise to jurisdictional error or that it raised an arguable case because, first, the Tribunal did in fact provide the applicant with extra time to provide a current confirmation of enrolment, and, secondly, the Tribunal clearly provided proper reasons for its decision.

16    The primary judge was not satisfied that grounds 6 and 7, which asserted a failure on the part of the Tribunal to consider compelling reasons, raised an arguable case. The primary judge held that, on the face of the Tribunal’s decision record, it was not apparent that the applicant had given the Tribunal evidence that she was unable to apply for a confirmation of enrolment in a Bachelor of Nursing before the hearing because her father was sick and could not pay the fees for the course, as she asserted at the show cause hearing.

17    The primary judge was satisfied that the Tribunal’s exercise of its discretion to provide the applicant with an additional period of time of two days to provide further information was a reasonable exercise of its discretion, and ground 8 did not raise an arguable case. The primary judge noted that the applicant had already been requested to provide information of a current confirmation of enrolment twice prior to the Tribunal hearing; that she did not provide that information, or any explanation as to why she did not provide the information, prior to the hearing; and that, after the hearing, she did not convey to the Tribunal that the time period was insufficient or contact the Tribunal to seek further time. Ground 9 did not raise any additional point to the grounds already considered.

18    The primary judge also held that ground 10 did not raise an arguable case, noting that the applicant was given an opportunity to provide evidence and make submissions at a hearing before the Tribunal, and that she was invited twice to provide the information that was necessary for the Tribunal to be satisfied as to whether the applicant had met the relevant criteria for the ground of the Visa. Accordingly, her Honour dismissed the application for judicial review filed by the applicant on 3 February 2017 pursuant to r 44.12(1)(a) of the FCC Rules.

proceedings in the federal court

19    On 16 November 2017, the applicant filed an application in this Court seeking extensions of time under:

(a)    r 31.23 of the Federal Court Rules 2011 (Cth) (Rules) to lodge an application for review of what was said to be a “migration decision” by the primary judge.

(b)    r 36.05 of the Rules in order to file a notice of appeal with respect to that decision.

The Notices of Objection to Competency

20    As indicated earlier, the respondent Minister filed two notices of objection to competency. A separate notice was filed in respect of each aspect of the applicant’s application. As indicated, an affidavit of Ms Hillary accompanied these two notices.

21    In the first notice, the respondent Minister objected to the competency of the application under r 31.23 of the Rules for an extension of time to lodge an application for review of the “migration decision”, and to the foreshadowed application for review of that “decision” under s 476A of the Act and r 31.22 of the Rules.

22    In the first notice, the respondent Minister said that:

(1)    r 31.23 of the Rules makes provision for an extension of time within which to lodge an application for review of a “migration decision” under s 477A(2) of the Act;

(2)    the primary judge’s judgment is not a “migration decision” within the meaning of the Act or the Rules; and

(3)    the Court has no jurisdiction to entertain the present application, and would have no jurisdiction to entertain the foreshadowed application for review of the primary judge’s judgment under s 476A of the Act and r 31.22 of the Rules.

23    As the respondent Minister submitted, r 31.23 of the Rules deals with applications for extensions of time within which to lodge an application for review of a “migration decision” under s 477A(2) of the Act. The (interlocutory) judgment of the primary judge dismissing the applicant’s application for judicial review was not a “migration decision” as defined in the Act. This Court has no jurisdiction to “review” the judgment of the primary judge under s 476A of the Act, or to grant an extension of time under s 477A.

24    Since the primary judge dismissed the application for an order to show cause pursuant to r 44.12(1)(a) of the FCC Rules, her Honour’s judgment was interlocutory in nature: see r 44.12(2). Accordingly, the applicant requires leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Pursuant to r 35.13(a) of 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. Therefore, any application for leave to appeal from the interlocutory judgment of the primary judge was required to be filed by 2 November 2017.

25    The respondent Minister relied on these circumstances in support of his second notice of objection to competency, noting that no application for leave to appeal had been filed within the specified time. The respondent Minister contended, correctly, that the Court could not entertain the applicant’s present application for leave under r 36.05 of the Rules (which concerns the filing out of time of appeals, for which leave to appeal is not required) and could not entertain the foreshadowed appeal in the absence of leave.

26    What the applicant should have done is apply for an extension of time to seek leave to appeal from the interlocutory judgment of the primary judge under r 35.14(1) of the Rules. Under r 35.14(3)(c) and (d), such an application ought to be accompanied by an affidavit stating the facts and why the application for leave to appeal was not filed within time and a draft notice of appeal. The Court may, however, waive compliance with the Rules, and treat the present application as an application for an extension of time to seek leave to appeal.

27    Since it appeared in the interests of justice to do so and the respondent Minister also supported this course in written submissions and at the hearing, the Court will treat the applicant’s current application as an application for an extension of time to seek leave to appeal. The Court will treat the applicant’s draft notice of appeal purporting to be filed under r 36.01 of the Rules as a draft notice of appeal filed under r 35.14(3)(d) and will treat the affidavit affirmed by the applicant on 16 November 2017 as filed under r 35.14(3)(c). The Court will otherwise waive compliance with r 35.14 of the Rules.

applicant’s non-appearance

28    Regrettably, the applicant did not appear today when the application was called on for hearing.

29    The respondent Minister has sought that the Court dismiss her application for non-appearance under r 35.33(1)(a)(i) of the Rules. Bearing in mind that the applicant was absent when her application was called on for hearing today and the following circumstances, it is in my view proper to do so.

30    On 13 April 2018 the Court notified the applicant that the matter would be listed before me, on a date and time to be confirmed. On 15 May 2018 Chambers staff notified the applicant that the matter was listed for hearing today at 2:15 pm by an email sent to the email address notified by her. As of Monday 20 August 2018, no written submissions had been filed by the applicant and the Court had received no other communication from her and, in consequence, Chambers sent another email to the applicant noting the date, time and location of the hearing today, that it was important she attended the hearing, and that if she did not do so, the Court may proceed in her absence. That email also requested that the applicant confirm that she received the email. No response was received to that email. On 20 August 2018, Chambers staff also called the mobile telephone number notified to the Federal Circuit Court (no telephone number having been provided on the documents she filed in this Court) and left a message stating the date and time of the hearing. Chambers staff made a further call to this number on 23 August 2018 and again left a message stating the date and time of the hearing. Despite being advised of today’s hearing by these communications, the applicant did not attend today’s hearing. A telephone call made by the court attendant in court this afternoon to the only telephone number known to the Court that is, or has been, that of the applicant elicited no response.

31    I am further fortified in the conclusion that the application should be dismissed under r 35.33 of the Rules, by the fact that even if treated as a competent application, the application would have no apparent prospect of success.

apparent merits of application before the court

32    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.

33    The applicant has explained her delay in her affidavit of 16 November 2017 on the basis that she was unaware of the deadline, or how to make an application. The Minister accepts that this is a satisfactory explanation, bearing in mind that the applicant is self-represented and it is consistent with what has in fact occurred in the proceeding to date.

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

35    Of more significance is the fact that the proposed appeal has no apparent merit or prospect of success. The applicant stated the following grounds of appeal in her draft notice of appeal:

1.    The court failed to take account of the principles of procedural fairness in Li v Minister for Immigration and Citizenship [2013] HCA 18.

2.    The Federal Circuit Court has erred in law in its determination of the show cause application heard on 19 October 2017.

3.    The Federal Circuit Court did not take into account that the Appellant had provided to the Tribunal evidence to show that she had adequate health insurance for the period of her study. The Tribunal erred in law in failing to consider the evidence put before it.

4.    The Federal Circuit Court erred in not identifying that the Tribunal applied a non-legal criteria as to what would be considered adequate health insurance. The Tribunal applied its personal view as to what constitutes health insurance evidence and placed too much evidence on the Procedure and Advice Manual of the First Respondent.

5.    The First Respondent's PAM is not a law and the Tribunal erred in relying on it.

6.    The Federal Circuit Court erred in not holding that the Tribunal did not apply procedural fairness in not granting an adjournment to the Appellant so that she could provide an updated Confirmation of Enrolment. The Appellant was severely disadvantaged by her enrolment not being in place and should have been granted a legitimate and fair opportunity to remedy this defect so that her review turned only on the issue of the health insurance.

7.    The Federal Circuit Court erred in not finding that the Tribunal did not place weight on the fact that the Appellant was affected by technical breaches of her visa application such as not having in place health insurance or the enrolment to her course. These could have been cured if the Tribunal had given the Appellant reasonable time.

8.    The Tribunal erred in failing to grant the Appellant an adjournment to obtain her health insurance and enrolment evidence.

9.    The Federal Circuit Court failed to take all of the above into account and thereby erred and as such its decision to dismiss my judicial review is wrong in law and/or in fact and/or unreasonable.

36    In her affidavit, the applicant deposed:

[13]    The Federal Circuit Court failed to correct the errors of law made by the Tribunal.

[14]    The Tribunal unfairly relied on PAM which is a guide for the First Respondent and not a law.

[15]    The Tribunal failed to accord me procedural fairness and give me time to supply the health insurance and enrolment documents to its satisfaction.

[16]    That I was not properly informed as [to] what the Tribunal wanted of me and it was the Tribunal’s duty to inform me as this was a merits review.

37    Grounds 1, 6, 7 and 8 of the draft notice of appeal raised an issue of procedural fairness and challenged the Tribunal’s claimed failure to grant an adjournment to obtain confirmation of enrolment and health insurance. The applicant made the same kind of contention in [15] of her affidavit. These and similar allegations lack any apparent merit.

38    The criterion in cl 572.231 of Schedule 2 to the Regulations required that the applicant be enrolled in, or be the subject of a current offer of enrolment in, a relevant course of study. On 6 December 2016, the Tribunal requested that the applicant provide such evidence. On 15 December 2016, the applicant provided a document indicating that she was enrolled in a named course until 26 March 2017. At the hearing on 9 January 2017, the applicant acknowledged, however, that this particular enrolment had been cancelled on 9 August 2016. The applicant requested, and the Tribunal granted, an adjournment of the review to enable her to provide a new confirmation of enrolment, allowing the applicant until 11 January 2017 to provide the relevant documentation. When the Tribunal came to make its decision on 13 January 2017, it had received no further information.

39    In these circumstances, it is difficult to discern any possible error in the primary judge’s rejection of the applicant’s complaints about the fairness of the Tribunal’s process. There would appear to be no foundation for the applicant’s claim that she was denied procedural fairness. The primary judge discussed these issues in her reasons and no error is apparent in the primary judge’s approach.

40    The criterion in cl 572.225 of Schedule 2 to the Regulations required that the applicant give “evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s stay in Australia”. As noted already, the delegate was not satisfied that the applicant met this criterion. On 29 August 2016, 6 December 2016 and 16 December 2016, the Tribunal wrote to the applicant requesting that she provide the requisite information. At the hearing on 9 January 2017, the applicant provided a letter from Allianz, which indicated that she had insurance until 28 September 2017. As the Tribunal noted, however, “without a confirmation of enrolment, the Tribunal could not be satisfied as to her intended period of stay in Australia”. As noted, the Tribunal allowed the applicant until 11 January 2017 to obtain a confirmation of enrolment, as well as evidence of appropriate health insurance; but no further information was received by the Tribunal by the time it made its decision on 13 January 2017. In these circumstances, there would appear to be no tenable argument that the applicant was not treated fairly with respect to the health insurance issue.

41    There would appear to be no arguable basis for grounds 3 or 4 of the draft notice of appeal, or the claim in [15] of the applicant’s affidavit in so far as they challenge the way in which the Tribunal determined the health insurance issue. The Tribunal’s reasons show that it considered the evidence provided by the applicant but, as it explained to the applicant at the hearing, without a confirmation of enrolment, the Tribunal could not be satisfied of her intended period of stay in Australia and therefore could not be satisfied that cl 572.225 was met. In these circumstances, there are apparently no prospects of success in the applicant’s challenge to the primary judge’s rejection of the applicant’s complaints with respect to the way the Tribunal dealt with the health insurance issue.

42    Ground 5, and also ground 4 of the draft notice of appeal, and also [14] of the applicant’s affidavit, challenged the Tribunal’s reference to PAM. There could be no error shown here, since PAM was clearly a matter to which the Tribunal could have regard in applying cl 572.225. In any event, the Tribunal concluded that cl 572.225 was not met because it could not be satisfied of the period of the applicant’s intended stay and therefore that the requirement in that clause was met.

43    Grounds 2 and 9 of the draft notice of appeal, and the remainder of the applicant’s affidavit did not raise any issues additional to the grounds already discussed.

44    For the reasons stated, I conclude that the foreshadowed appeal by the applicant would apparently have no reasonable prospects of success and, on this account, the application, which should, as stated, be treated as an application for an extension of time to seek leave to appeal, should be refused.

45    For the reasons stated, I would order that the application filed by the applicant in this Court be treated as an application for an extension of time to seek leave to appeal from the judgment of the Federal Circuit Court; and that that application be dismissed under r 35.33(1)(a)(i) of the Rules. The applicant should pay the respondent Minister’s costs fixed in the sum of $1756.

Associate:

Dated:    24 August 2018