FEDERAL COURT OF AUSTRALIA

Manandhar v Minister for Immigration and Border Protection [2018] FCA 2035

ORDERS

THE COURT ORDERS THAT:

1.    The First Respondent’s application made pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) to have the proceeding dismissed is rejected.

2.    The Applicant’s application for an extension of time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, Mr Kiran Manandhar, is a citizen of Nepal.

2    Mr Manandhar was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa in January 2014. In November 2014, he was issued with a Notice of Intention to Consider Cancellation of his visa because a delegate of the Minister for Immigration and Border Protection (“delegate”) believed that he was no longer an “eligible higher degree student” because he had ceased to be enrolled in a course that was a prerequisite to his higher education course. A delegate proceeded to cancel the visa in February 2015 under s 116(1)(a) of the Migration Act 1958 (Cth).

3    Mr Manandhar sought review of the delegate’s decision. In April 2015, the Migration Review Tribunal (“Tribunal”) affirmed the delegate’s decision. Mr Manandhar sought review of the Tribunal’s decision by the Federal Circuit Court. That Court on 1 May 2018 dismissed the application with costs: Manandhar v Minister for Immigration and Border Protection [2018] FCCA 1070.

4    On 1 June 2018, there was filed in this Court an Application for an Extension of Time in which to appeal from the decision of the Federal Circuit Court. An extension of time is required because r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) provides that an appeal is to be filed “within 21 days after … the date on which the judgment appealed from was pronounced”. Rule 36.05 of those Rules provides for the filing of an application to extend time. The Court has “an unfettered discretion to grant or refuse such an application” although, of course, such discretion must be “exercised judiciously”: Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 at [12] per Tracey J (“Reaper”).

5    Mr Manandhar failed to appear before this Court on 20 November 2018 at the time scheduled for the hearing to commence. The matter was stood down in case there was some delay on his part in attending – but there was no appearance when the matter was then called on for hearing more than 15 minutes later than scheduled. Nor was there an appearance when the matter was again called at the conclusion of the hearing. There is no doubt that Mr Manandhar was aware of the hearing. He had been reminded of the scheduled hearing date by way of a letter dated 6 November 2018 from the solicitors for the Respondent Minister.

6    The Respondent Minister appeared by his solicitor, Mr Leerdam. The Second Respondent, the Administrative Appeals Tribunal, filed a submitting notice save as to costs.

7    An application to have the proceeding dismissed for want of appearance pursuant to r 36.75 of the Federal Court Rules was rejected. The preferable course, it was considered, was to proceed to hear the application, albeit in the absence of the Applicant.

8    It is concluded that an extension of time should be refused.

The discretion conferred

9    When consideration is given to the circumstances in which the discretion to extend time may be exercised, it is important to recall at the outset that the prima facie position is that appeals brought out of time will not be entertained: Reaper [2014] FCA 426 at [12]. Tracey J there referred to the necessity “for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted”. The prescribed time limits “are not to be ignored”: cf. Parker v The Queen [2002] FCAFC 133 at [6] per Spender, O’Loughlin and Dowsett JJ.

10    Subsequent decisions of this Court have sought to further address the principles to be applied in the exercise of the discretion. It is sufficient for present purposes to mention but two.

11    First, in BUD17 v Minister for Home Affairs [2018] FCAFC 140, Robertson, Steward and Thawley JJ summarised some of the principles to be applied as follows:

[82]    In considering whether to exercise the discretion to extend time under r 36.05 of the Federal Court Rules 2011 (Cth) … and recognising that the Court’s discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the applicant’s explanation for the delay; whether the application for review would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted …

Second, in BAO15 v Minister for Immigration and Border Protection [2016] FCA 214, (2016) 151 ALD 352 at 356, Perry J likewise observed:

[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 …

12    It is unnecessary for present purposes to canvas further authorities to like effect.

The extent of the delay & the explanation proffered

13    The extension of time which is sought is for a comparatively short period – the appeal should have been filed by 22 May 2018 and was accordingly some 10 days out of time. The Respondent Minister does not claim prejudice should an extension of time be granted.

14    The explanation proffered for the delay, however, is far from satisfactory. Mr Manandhar’s position as explained in his affidavit dated 1 May 2018 (but apparently sworn on 31 May 2018) is that he “required additional time to seek advice” – but there is no detail provided as to what steps he took after having received judgment to obtain “advice” prior to the appeal period expiring or when any such steps were undertaken. There is simply no detail as to the steps taken after having received judgment on 1 May 2018 and the filing of the present Application on 1 June 2018. The fact remains, however, that he is an unrepresented litigant.

15    Although an absence of a satisfactory explanation for delay may occasion an adverse exercise of discretion (e.g., Clements v Mentha [2013] FCA 454), the absence of such an explanation does not necessarily preclude an extension being granted: cf. Comcare v A’Hearn (1993) 45 FCR 441 at 444 per Black CJ, Gray and Burchett JJ.

16    On the facts of the present case, and even though the explanation provided is unsatisfactory, it is the absence of any apparent merit in the appeal which dooms Mr Manandhar’s application for an extension of time.

The arguments sought to be advanced

17    The Draft Notice of Appeal annexed to the affidavit filed by Mr Manandhar is somewhat confusing – the form of the Draft as annexed to the affidavit seemingly presenting both generally expressed concerns as to the manner in which his claims have been resolved (at paras [1] to [5]) and also four “grounds of appeal” (at para [7]). But the arguments sought to be advanced appear with sufficient clarity to inform the basis upon which the discretion to extend time is sought to be exercised.

18    The generally expressed concerns were stated as follows (without alteration):

1.    Federal Circuit Court has dismissed my application summarily without proper consideration of the case in its fullness.

2.    I have been deprived of being considered in its merit assessment of bringing my case to be heard at the final hearing.

3.    FCC and the tribunal denied the applicant procedural fairness and natural justice in not giving me the opportunity to properly consider my legal position, given my limitation in the legal system.

4.    The FCC and Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant’s application.

5.    FCC and the Tribunal Member therefore failed to afford the Applicant natural justice and procedural fairness by taking a personally subjective view of the Applicant’s actual circumstances.

These claims are also repeated in the affidavit filed in support of the application.

19    The Draft Notice of Appeal goes on to state (again without alteration):

7.    This application is made on the following grounds of appeal:

Ground 1: Jurisdictional Error – Failure to consider a relevant consideration

The delegate erred in failure to consider factors pertaining to non-compliance with statutory duties under Education Services for Overseas Students Act 2000 (“the ESOS Act”) by the education provider leading to the discontinuance of studies.

Ground 2: Jurisdictional Error – Drawing adverse inferences from Applicant’s migration history

The delegate’s decision is infected by jurisdictional error by incorrectly asserting that the Applicant was not enrolled in any course of study during which the MRT issued the intention of notice of cancellation of visa.

Ground 3: Jurisdictional Error – Failure to consider a relevant consideration

The delegate erred in failing to contemplate the evidences provided by the applicant in support of his case. Neither was the applicant given any consideration upon his request for further studies on various occasions.

Ground 4: Jurisdictional Error – Erroneous assumption of Applicant awareness resulting in adverse inferences

The Second Respondent erred in placing excessive weight on an erroneous assumption of the Applicant’s knowledge of internal processes pertaining to enrolment status as reflected in the PRISMS system, drawing an adverse inference that the client did not have intention of studying thus falling in breach of condition 8202 of his student visa.

A second paragraph [7] states:

The Applicant submits that this is tantamount to a denial of procedural fairness and ground upon which it may be inferred that the decision of the delegate and the Tribunal were infected with jurisdictional error.

20    Each of the proposed arguments should be considered, albeit only in sufficient detail to form a view as to whether they warrant an extension of time being granted in which to permit a more fulsome examination of their merit. To the extent that the proposed Grounds of Appeal trespass beyond the arguments relied upon before the primary Judge, leave to raise those new Grounds is required. When considering whether leave should be granted, it is again unnecessary for the Court to “enter upon a full consideration of the grounds” as such consideration would render the requirement for leave meaningless: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ.

21    Each of the proposed arguments, with the exception of those challenging the manner in which the primary Judge proceeded, arguably seem to depart considerably from the manner in which Mr Manandhar advanced his case before the primary Judge. Leave to now rely upon these arguments may thus be required. It is, however, unnecessary to untangle which of the arguments are fresh arguments and which may be arguably embraced within the Grounds of Review relied upon before the primary Judge. None have any such merit as would attract a grant of leave, which is a further reason why an extension of time should not be granted.

A denial of an opportunity to be heard?

22    Paragraphs [1] to [5] of the Draft Notice of Appeal (and the second para [7]) all focus upon an argument that Mr Manandhar’s claims were not given “proper consideration” by the Tribunal and/or the Federal Circuit Court.

23    In one way or another, Mr Manandhar seeks to contend that he has been deprived of “natural justice and procedural fairness” by being deprived of an opportunity to present his case, including an apparent contention that both the Tribunal and the Federal Circuit Court Judge manifested a reasonable apprehension of bias. Any argument as to there being a reasonable apprehension of bias, it is to be recalled, is to be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J (“Re JRL”).

24    However the argument is advanced, it is without merit.

25    It cannot be said that the application was “summarily” dismissed or dismissed “without proper consideration of the case in its fullness”. The reasons provided by the primary Judge set forth in sufficient detail the “[l]egislative framework” to be applied and canvass each of the Grounds of Review advanced before that Court.

26    Nor is there a sustainable basis upon which an argument could be advanced that Mr Manandhar was not extended an opportunity to be heard by either the Tribunal or the primary Judge.

27    Insofar as the Tribunal is concerned, a hearing was conducted on 22 April 2015 and Mr Manandhar was then assisted by an interpreter. A transcript of the Tribunal hearing does not appear to have been available to the primary Judge and was not available before this Court. But there is nothing on the face of the Tribunal’s reasons for decision which would suggest that Mr Manandhar was not given an opportunity to fully present to the Tribunal such facts and explanations as he considered relevant to the review being undertaken. Nor do those reason indicate that the Tribunal was not approaching its task impartially. Taking a “personally subjective view” of Mr Manandhar’s “actual circumstances” does not evidence any failure on the part of the Tribunal to make a decision on the merits – albeit, necessarily, in the personal assessment of the Tribunal member.

28    Insofar as the hearing before the primary Judge is concerned, there is again no basis upon which any conclusion could be formed that that Judge did not approach the application for judicial review with a mind open to persuasion: cf. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [71], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.

29    There is no firm basis upon which any argument could be advanced that there was a reasonable apprehension of bias on the part of either the Tribunal or the primary Judge: cf. Re JRL. The reasons provided by the primary Judge expose nothing other than a careful and balanced evaluation of the arguments then being advanced. Both the reasons of the Tribunal and the primary Judge expressly refer to the personal circumstances of Mr Manandhar and the explanations he advanced for consideration.

A challenge to the delegate’s decision?

30    In addition to such confusion as may be occasioned by para [7] of the Draft Notice of Appeal by reason of the fact that:

    it purportedly sets forth “grounds of appeal” presumably in addition to those contained within paras [1] to [5],

further confusion is occasioned by the fact that:

    each of the first three Grounds set forth in para [7] refer to asserted jurisdictional errors committed by the delegate.

Further difficulty emerges by reason of the fact that:

    para [7] raises arguments different to those relied upon before the Federal Circuit Court Judge.

31    Assuming that these “grounds of appeal” are in addition to those previously set forth at paras [1] to [5] of the Draft Notice of Appeal, a fundamental difficulty with the first three “grounds” is that it was not the delegate’s decision which was the subject of review by the Federal Circuit Court. That Court’s task was to review the decision of the Tribunal and to do so by reference to the Grounds of Review relied upon before that Court. None of those Grounds sought to challenge the decision of the delegate.

32    The Federal Circuit Court, moreover, had no jurisdiction to review the decision of the delegate, that jurisdiction being expressly excluded by s 476(2)(a) of the Migration Act: Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [34] to [35], (2015) 144 ALD 243 at 253 to 254 per Perram and Perry JJ (Gleeson J agreeing). Even if it were to be assumed that a review could be undertaken of a decision made by a delegate which was in law no decision at all upon a basis suggested in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 and as countenanced in Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 at [39], (2016) 247 FCR 554 at 565 per Kenny, Griffiths and Mortimer JJ, there is no reason in the present case to question the validity of the delegate’s decision.

33    Even though the jurisdiction of the Federal Circuit Court is constrained by s 476(2) of the Migration Act, it should be noted that the purported errors made by the delegate in the present case were able to be remedied in the hearing before the Tribunal. Jurisdiction is conferred upon the Tribunal to review the decision of the delegate in the present case by s 348 of the Migration Act, read with ss 338(3) and 347. Pursuant to s 349, the powers vested in the Tribunal in conducting such a review extends to the Tribunal considering afresh the decision to cancel Mr Manandhar’s visa. If errors committed by the delegate are repeated by the Tribunal it is, accordingly, the decision of the Tribunal which is the focus of the judicial review undertaken by the Federal Circuit Court.

34    The fourth “ground of appeal” set forth in para [7] of the Draft Notice of Appeal shifts attention from challenges made to the delegate’s decision and focusses upon an asserted jurisdictional error on the part of the Tribunal. It asserts that the Tribunal placed “excessive weight on an erroneous assumption of the Applicant’s knowledge of internal processes pertaining to enrolment status”. That assumption is understood to be found in the following parts of the Tribunal’s reasons, namely:

Does the ground for cancellation exist?

8.    The applicant provided to the Tribunal a copy of the primary decision. It indicates that the applicant was granted a Student visa in February 2014 on the basis of his enrolment in a Diploma of IT at QIBT and a Bachelor of IT at Griffith University. The primary decision record indicates, and the applicant confirmed in his written submission to the delegate, that his enrolment in a Diploma of IT was cancelled and that course was a prerequisite for the applicant’s enrolment in a Bachelor course.

9.    The Tribunal finds that the applicant ceased to be enrolled in the course that was a prerequisite to the principal course. The Tribunal finds that the applicant required to be enrolled in the prerequisite course to continue to be an eligible higher degree student and to meet the requirements of cl. 572.223(1A). As the applicant ceased to be enrolled in such a course, the Tribunal finds that he ceased to be an eligible higher degree student and he no longer met the requirements of cl. 573.223(1A).

10.    The Tribunal finds that the circumstances which permitted the grant of the visa no longer exists. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(a) of the Act. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

35    Read in context (Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ) and in “a common-sense and balanced manner” (Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [40] per Allsop CJ, Flick and Griffiths JJ), and as the reasons expressly state, it is not considered that the Tribunal at this part of its reasoning was doing anything other than satisfying itself that grounds existed upon which Mr Manandhar’s visa could be cancelled. At this stage in the reasoning process, no question arose as to the “weight” to be given to the fact that Mr Manandhar had “ceased to be enrolled in the course that was a prerequisite to the principal course”. Nor did any question arise as to the making of an “assumption” or the drawing of any “adverse inferences”. Mr Manandhar accepted that he had in fact ceased to be enrolled in the course; his case was that there was an explanation for that which was relevant to the Tribunal’s exercise of its discretion. And that indeed was the very next matter to which the Tribunal directed its attention at paras [11] and following of its reasons.

36    None of the four “grounds of appeal” contained in para [7] of the Draft Notice of Appeal, accordingly, have any real prospects of success.

37    Even if leave were to be granted to raise these arguments, being arguments not previously canvassed before the primary Judge, the arguments would have been rejected.

The reasoning of the primary Judge

38    For the sake of completeness, and leaving aside the Grounds as set forth in Mr Manandhar’s Draft Notice of Appeal, consideration has separately been given to the Grounds of Review as raised before the Federal Circuit Court and the reasons of the primary Judge for rejecting each of those Grounds.

39    This course has been taken in case Mr Manandhar was seeking to contend in his Draft Notice of Appeal that the primary Judge committed appellable error in the manner in which those Grounds were then resolved. Even so construed, the Draft Notice of Appeal continues to expose no error on the part of the primary Judge.

40    As set forth in the reasons for decision ([2018] FCCA 1070 at [33]), the Grounds relied upon before the Federal Circuit Court were expressed as follows (without alteration):

“1.    The Migration Review Tribunal, currently a division of the Administrative Appeals Tribunal, refused to revoke the decision made by the Department of Immigration and Border Protection to cancel my Subclass 573 Higher Education Sector visa without properly considering the circumstances I was going through at that time, when it was obvious that the DIBP made a mistake and improperly cancelled my visa. I have been deprived of being considered in full at a full hearing, or at least show cause hearing at the Migration Review Tribunal.

2.    I was only wishing to change my courses to a more practical field and be able to utilize it after my studies and although the process was quite messy and may have not completely gone through as I wish it would have now, the intentions and result fully justify the fact that it was my intention to do so and nothing else.

3.    But the DIBP and MRT have not considered these facts along with the fact that I had just started studying and become an adult to cope with matters myself. Procedures are important but the justification can come from the end result and the end result is as I have said all along.

4.    Once my original visa gets cancelled, acquiring the right visa also becomes almost impossible as there will be a record of visa cancellation. So simply wishing to wait and change my visa was what I wanted but now have been deprived of the right to do so because of the wrongful decision by the DIBP.

5.    Thus I wish to have the decision by the DIBP to cancel my original visa cancelled and become void so I can simply apply and change for my visa status to the appropriate one and finish my studies in Australia.

6.    For the above reasons, I file this appeal and pray the court grant my appeal.”

In contrast to the Grounds of Appeal in this Court (or at least some of those Grounds), none of the Grounds before the primary Judge, it will be noted in passing, refer to any error said to have been committed by the delegate which could arguably have provided a reason to question the basis upon which the Tribunal itself proceeded.

41    If attention is confined to the Grounds of Review as set forth by the primary Judge and as resolved by the primary Judge, no error is exposed. As explained by the primary Judge, the arguments sought to be advanced by Mr Manandhar were essentially arguments directed to challenging the merits of the factual findings made by the Tribunal. The correction of factual error by the primary Judge was not part of the jurisdiction entrusted to that Court when entertaining an application for judicial review. The difficulties confronting Mr Manandhar, albeit not insurmountable difficulties in limited circumstances, included his attempt to challenge findings of fact founded upon adverse credibility assessments made by the Tribunal. Again, and as also explained by the primary Judge ([2018] FCCA 1070 at [39]), each of the findings of fact made by the Tribunal were findings open to be made.

CONCLUSIONS

42    Irrespective of any deficiency that there may be in the manner in which the proposed Grounds of Appeal are expressed, there is no demonstrable merit in any of the arguments sought to be advanced by Mr Manandhar. An extension of time in which to advance such arguments should, accordingly, be refused.

43    Even had an extension of time been granted, no appellable error is exposed in the reasoning of the primary Judge. No conclusion is open that the Tribunal failed to properly consider “the circumstances [Mr Manandhar] was going through at that time”. The Tribunal considered the claims made by Mr Manandhar and resolved those claims adversely to him.

44    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The First Respondent’s application made pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) to have the proceeding dismissed is rejected.

2.    The Applicant’s application for an extension of time is refused.

3.    The proceeding is dismissed.

4.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    19 December 2018