FEDERAL COURT OF AUSTRALIA

Atta v Minister for Home Affairs [2019] FCA 298

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application is for constitutional writs to set aside a decision of a judge of the Federal Circuit Court of Australia not to grant an extension of time and to require the Federal Circuit Court judge to decide the application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) according to law.

2    By s 477(1) of the Migration Act, an application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under s 476 of the Migration Act in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. That court may, by order under s 477(2), extend that 35 day period as the court considers appropriate if: an application for that order has been made in writing to that court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3    The circumstances in the present case are that the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 5 April 2017, affirming a decision of the Delegate of the Minister made on 27 January 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act. Together with his sister, the applicant applied for the visa on 8 January 2016. He did not hold a current substantive visa at the time of the application, and had not done so since 2012.

Proceedings in the Federal Circuit Court

4    The primary judge said that the final day for filing the application to the Federal Circuit Court for judicial review of the Tribunal’s decision was 10 May 2017 but the application was filed on 15 September 2017, some 108 days outside the 35 day period prescribed by s 477.

5    The applicant’s case, in substance, the primary judge said, was that he relied on express representations of the Department’s computerised record Visa Entitlement Verification Online (VEVO) check results that he was the holder of a substantive visa, and the Minister was estopped from denying him the visa. As for the applicant’s delay in filing the application, he relied on the expression of sympathy by the Tribunal about the Department’s errors, and that it said it was going to refer his case to the Minister, which it did.

6    The primary judge said that the hearing before her proceeded on the basis that she would hear the application for an extension of time and the substantive application together.

7    At [42], the primary judge said she was not convinced that the explanation for the delay was good reason for the applicant’s inaction. In the circumstances, the primary judge considered that whether it was necessary in the interests of the administration of justice to order that time be extended under s 477(2) of the Migration Act turned on the merits of the application for substantive relief.

8    The primary judge considered, at [45]-[58], a number of decided cases concerning “the law of administrative estoppel”.

9    The primary judge concluded, at [59], that the applicant had no reasonable prospects and his ground of review was not arguable.

10    The primary judge said, at [61], that the Tribunal’s task was to review the decision of a delegate to refuse to grant the applicant a visa under s 65 of the Migration Act. Under s 65, the Minister and his delegate had a duty to grant the visa if he or she was satisfied that the criteria had been satisfied and a duty to refuse to grant the visa if he or she was not so satisfied.

11    The primary judge said that the criteria for the applicant’s application for the visa included as primary criteria that he be the holder of a valid substantive visa or that he applied for the visa within 28 days after the day when the last substantive visa ceased to be in effect. Those criteria, relevant to the applicant, were not dependent on any discretion nor any representation. The applicant either was the holder of a substantive visa or he was not.

12    The primary judge said, at [64], that the applicant was not the holder of a substantive visa. It followed that he was required to apply for the visa the subject of the application within the prescribed 28 day period. He did not do so.

13    At [65], the primary judge said that the Tribunal had no discretion, neither did the delegate. As the Tribunal said, the applicant did not satisfy cl 572.211(3)(c) and therefore did not meet the requirements of cl 572.211 of Sch 2 to the Migration Regulations 1994 (Cth). The Tribunal did not have any discretion to waive the requirements of cl 572.211, despite the errors made by the Department.

14    At [66], the primary judge said that the discretion the applicant sought was contrary to the statutory duty specified by s 65 of the Migration Act. The primary judge applied Formosa v Secretary, Department of Social Security [1988] FCA 291; 46 FCR 117 at 125 per Davies and Gummow JJ and Minister for Health v Nicholl Holdings Pty Ltd [2015] FCAFC 73; 231 FCR 539 at [50].

15    At [68], the primary judge said that the criteria for the grant of the visa were specified. The criteria not being met, s 65 denied an applicant the entitlement to a visa.

16    At [69], the primary judge said that whatever the Department’s VEVO records said, the term of the applicant’s diplomatic visa was that it continued only for so long as his father held his diplomatic posting. It was uncontroversial that that posting ceased at least by February 2012. It followed that the applicant’s visa similarly ceased to have effect.

17    At [70], the primary judge said that thereafter, the applicant did not hold a substantive visa. Whether or not the VEVO record represented otherwise did not change that legal status.

18    On this basis the primary judge dismissed the application for an extension of time.

Application to this Court

19    As I have indicated, the applicant applies for an order in the nature of certiorari quashing the decision of the Federal Circuit Court refusing to extend time under s 477(2) and an order in the nature of mandamus requiring the Federal Circuit Court judge to decide the application for an extension of time under s 477(2) according to law. The ground stated in the application is that the Federal Circuit Court judge’s decision not to grant an extension of time was legally unreasonable.

The submissions of the parties

20    The applicant filed no written submissions. In oral submissions, the applicant first addressed the delay in commencing proceedings and submitted that the application for an extension of time was due to very rare circumstances: the Tribunal referred the matter to the Minister and he was advised to await the outcome. Only then was he advised of the option to appeal to the Federal Circuit Court. In relation to the claimed legal unreasonableness of the judgment of the primary judge, the applicant submitted that there had been a number of errors by the Department. In summary, they were that he had made repeated enquiries as to his status and had been told that he had the relevant visa. It was not until 2016 that the Department told him that his visa had ceased in 2012. He pointed to the circumstances in 2012 being beyond his control as he was then 16 years old, having been born in 1995. He said that the Department ignored the VEVO status and that neither he nor his parents nor his sister stayed illegally or had any intention of staying illegally. He also submitted it was unsafe to him and his family to go to Egypt. He said he could not finish his degree in Australia due to the mistakes of the Department.

21    The Minister submitted that the test for legal unreasonableness was “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713 at [11] per Kiefel CJ. It was not sufficient for the applicant to establish a basis for disagreement with the Federal Circuit Court’s assessment of the merits of the case: ADN18 v Minister for Home Affairs [2018] FCA 1677. It must be shown that the Court’s assessment lacked an evident or intelligible justification: SZVFW at [10] and [82].

22    The Minister submitted that the fatal difficulty with the applicant’s case (even assuming the elements of an estoppel could otherwise be made out) was that there can be no estoppel against a decision-maker exercising a statutory duty: Formosa at 125; Nicholl Holdings Pty Ltd at [50] and the cases cited there.

23    The Minister submitted that under s 65(1)(b) of the Migration Act the Minister must refuse to grant a visa application unless the criteria for the visa were satisfied. The criteria in this case were not met because, for the reasons given by Bromberg J in Atta v Minister for Immigration & Border Protection [2018] FCA 145, the applicant ceased to hold a diplomatic visa when his father ceased his consular role. As the visa criteria were not met, the Tribunal was obliged to refuse the visa and affirm the decision of the delegate. The suggested estoppel would, therefore, operate contrary to the Migration Act.

24    The Minister submitted that, more generally, the suggested estoppel would operate in a manner that was inconsistent with:

a.    the rejection in Australia of the doctrine of substantive legitimate expectations: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [28], [65]-[77] and [148]; and

b.    the justification of judicial review of administrative action being the enforcement of the legal limits upon the exercise of power as opposed to the correction of administrative injustice or the protection of individual interests: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36.

25    The Minister submitted that the primary judge was correct to find that the proposed ground had no reasonable prospect of success.

Consideration

26    The first matter is the status of the applicant’s affidavit affirmed on 17 October 2018. Some of the material in that affidavit appears not to have been before the primary judge. Mr Knowles of counsel, who appeared on behalf of the Minister, accepted that I could take into account the material in that affidavit and indicated that he did not wish to cross-examine the applicant. In relation to the applicant’s factual submissions from the bar table, counsel did not require the applicant to be sworn, and accepted that I could take those submissions into account.

27    Next is the framework for considering the question whether the primary judge has made an error going to jurisdiction. The present proceeding is not an appeal from the primary judge.

28    Although the applicant seeks review of the decision of the primary judge on the ground that it was legally unreasonable it is not necessary, in my opinion, to consider the matter by way of that concept. This is because, in the present case, whether or not the application for judicial review of the decision of the Tribunal had sufficient prospects and in turn whether or not the primary judge erred in refusing the application for an extension of time fundamentally involves the legal correctness or otherwise of the proposition that the criteria for the applicant’s visa had been satisfied.

29    At the relevant time, 8 January 2016, the date of the applicant’s application for the visa, cl 572.211 of the Migration Regulations provided that:

(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; or

(ii)    if that last substantive visa was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

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

(B)    the day when the applicant is taken, under sections 368D and 379C of the Act, to have been notified of the Tribunal’s decision; and

(d)    the applicant satisfies Schedule 3 criterion 3005.

30    At the relevant time, in 2012, cl 995.511 of Sch 2 to the Migration Regulations provided:

995.5         When visa is in effect

995.511        Temporary visa permitting the holder:

(a)    to travel to and enter Australia until a date specified by the Minister for the purpose; and

(b)    to remain in Australia:

(i)    if the visa was issued on the basis of the holder satisfying the primary criteria for the grant of the visa — for the duration of the holder’s status as:

(A)    a diplomatic or consular representative in Australia of a country other than Australia; or

(B)    an international representative; or

(ii)    if the visa was issued on the basis of the holder satisfying the secondary criteria for the grant of the visa — for the duration of the status of the person who satisfied the primary criteria as:

(A)    a diplomatic or consular representative in Australia of a country other than Australia; or

(B)    an international representative; or

(iii)    in any case — until an earlier date specified by the Minister.

31    As held by Bromberg J in Atta at [14], by operation of s 82 of the Migration Act and cl 995 of Sch 2 of the Migration Regulations, the diplomatic visas of Mr and Mrs Atta (the present applicant’s parents) ceased to have effect upon Mr Atta ceasing to hold status as a diplomatic representative, which appeared to Bromberg J to have occurred in February 2012. Before me, it was not controversial that the applicant’s visa similarly ceased to have effect. The position was explained by the primary judge at [64]:

[The applicant] was not the holder of a substantive visa. It followed he was required to apply for the Visa the subject of this application within the prescribed 28 day period. He did not do so.

32    It follows that the applicant did not meet the criteria for the grant of a Student (Temporary) (Class TU) visa. As held by the primary judge, the applicant did not meet the requirements of the relevant subclause, cl 572.211(3), because he was not the holder of a substantive visa. The last substantive visa held by the applicant was a Diplomatic (Temporary) (Class TF) visa granted to the holder as a dependent relative, but his application was not made within 28 days after the day when that last substantive visa ceased to be in effect, that is, a date in 2012. The applicant did not lodge his student visa application until 8 January 2016.

33    It was not suggested that a longer period than 28 days was specified in a legislative instrument made by the Minister for the purposes of cl 572.211(3)(c).

34    In Formosa, Davies and Gummow JJ said, at 125:

The present is a case of right and obligation rather than discretion. If a claimant to an age pension satisfies the criteria specified in s 25 of the Social Security Act for qualification and if a claim is made in accordance with s 159, then, in the ordinary course, the claim should be determined in favour of the claimant and, subject to the determination of the rate of the pension (ss 33-36), there is no area for the exercise of discretion by the decision-maker. But if there has been no claim for that pension which complied with s 159, then the grant or payment of the pension shall not be made: s 158(1). The effect of the estoppel sought to be established in the present case would be, as we have said, to lift the prohibition imposed by s 158(1) and extend the authority of the decision-maker beyond that given by the statute. This cannot be achieved by an estoppel: Sutherland Shire Council v James [1963] SR (NSW) 273 at 278-279, per Sugerman and Manning JJ; Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227 at 230-231.

35    For these reasons, particularly in light of the terms of s 65(1)(b) of the Migration Act, the Tribunal did not make an error in not being satisfied that the criteria for the visa had been satisfied and finding that, therefore, it was required to refuse to grant the visa. It follows that there was no error on the part of the primary judge in dismissing the applicant’s application for an extension of time to file an application for judicial review of the Tribunal’s decision on the basis that that application had no sufficient prospects of success. The terms of s 65 of the Migration Act are clear, and mistakes on the part of the Department could not have the effect that the applicant held a substantive visa, or did make an application within 28 days after the day when his last substantive visa ceased to be in effect, when it is common ground he did not do so.

Conclusion and orders

36    The application is dismissed, with costs.

Associate:

Dated:    6 March 2019