FEDERAL COURT OF AUSTRALIA

Aryal v Minister for Immigration and Border Protection [2019] FCA 1764

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.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this matter the applicant, Mr Sagar Aryal, applied for an application for an extension of time and leave to appeal from:

(a)    orders of a Registrar of the Federal Circuit Court made 2 May 2018 dismissing the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made 1 August 2017 (the 2 May 2018 Orders). The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the applicant a student visa. The Registrar dismissed the application because the applicant failed to appear at the first directions hearing; and

(b)    the judgment of a judge of the Federal Circuit Court on 21 November 2018 dismissing the application to set aside the 2 May 2018 Orders and reinstate the initiating application (the 21 November 2018 Orders).

2    For the reasons I now explain I made orders to dismiss the application for an extension of time and leave to appeal and for the applicant to pay the Minister’s costs.

Background and procedural history

3    Notwithstanding an order directing that he do so, the applicant did not file written submissions. I have drawn the following from the materials before the Court, including the Minister’s submissions.

4    The applicant is a male citizen of Nepal who first arrived in Australia on 6 August 2008 as the holder of a student visa. On 14 July 2015, he applied for a further Student (Subclass 572) visa. Pursuant to cl 572.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), it was a criterion for grant of a student visa that the applicant provide to the Minister a certificate of enrolment in a course of study.

5    On 15 September 2015, a delegate of the Minister refused to grant the applicant a visa.

The application to the Tribunal

6    On 1 October 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

7    By letter dated 23 June 2017, the Tribunal wrote to the applicant inviting him to attend a hearing on 1 August 2017 to give evidence and present arguments. The Tribunal’s reasons record that when the Tribunal invited the applicant to the hearing it requested him to provide evidence of current enrolment in a course of study, prior to the hearing. It explained that having a current enrolment was a requirement for the grant of a student visa. The applicant did not provide any evidence of enrolment.

8    On 1 August 2017 the applicant appeared at a hearing before the Tribunal. He told the Tribunal that he was not currently enrolled in a course and that his last enrolment was on 14 July 2015. The Tribunal decided to affirm the decision of the delegate and gave oral reasons for its decision.

9    On 18 December 2017 the Tribunal provided written reasons in which it said that because the applicant was not currently enrolled in a course he did not satisfy cl 572.222 which was a prerequisite for the grant of a student visa. The Tribunal affirmed the decision to refuse to grant him a visa.

The application to the Federal Circuit Court

10    On 31 August 2017 the applicant sought judicial review of the Tribunal’s decision and the application was listed for a directions hearing on 2 May 2018. The applicant failed to appear and a Registrar made orders to dismiss the application for failure to appear pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules).

11    On 30 May 2018 the applicant applied to the Federal Circuit Court under r 16.05 of the FCC Rules for orders to set aside the 2 May 2018 Orders and reinstate the initiating application (the reinstatement application). The application was heard on 8 November 2015. On 21 November 2015 the primary judge dismissed the application and delivered reasons for judgment.

The application to this Court

12    On 10 December 2018 the applicant filed an application in this Court seeking an extension of time and leave to appeal from both the 2 May and 21 November 2018 Orders, doing so pursuant to rule 35.14 of the Federal Court Rules 2011 (Cth) (the Rules).

13    The applicant required leave to appeal both sets of orders as they are interlocutory in nature. Pursuant to rule 35.13 of the Rules, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made. The application for leave to appeal the 2 May 2018 Orders was required to be filed by 16 May 2018, and it was approximately seven months out of time. The application for leave to appeal the 21 November 2018 Orders was required to be filed by 5 December 2018 and it was five days out of time.

14    The applicant filed an affidavit in support of his application but did not provide any explanation for his non-compliance with the applicable time limits. Nor did he comply with an order made on 21 January 2019 requiring that he file written submissions support of the application.

15    The draft notice of appeal sought judicial review on the following two broad grounds:

1.    The learned judge erred in law and therefore fell into jurisdictional error by not affording the Applicant procedural fairness or natural justice insofar as;

   (i)    summarily dismissing his review application;

   (ii)    not conducting or allowing a full and final hearing;

(iii)    failing to properly and/or adequately investigate and assess the claims of the Applicant.

2.    The learned judge erred in law and therefore fell into jurisdictional error by failing [to] apply the correct test as to whether the Court should have allowed the reinstatement of the matter.

Consideration

16    The relevant principles in deciding whether to allow an application for an extension of time are well-established. The Court must decide whether it is an interest of justice to do so having regard to considerations including the length of the delay, the explanation for the delay, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension is time is granted, the prospects of success or merits of the substantive application and any relevant public interest considerations: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349 (Wilcox J); Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [5] and [66] (Brennan CJ and McHugh J, and Kirby J, respectively). Such considerations are not though exhaustive, and the outcome of an application for an extension of time will depend upon the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with Edmonds J agreeing).

The length of and explanation for the delay

17    The Minister contended that the length of the applicant’s delay in bringing the applications and the absence of a proper explanation provided a compelling basis for the Court to decline to grant an extension of time. I disagree. Having regard to the procedural history and the applicant’s explanation before me it is plain that he was late in seeking leave to appeal from the 2 May 2018 Orders because he made a reinstatement application instead. Then, when the reinstatement application was unsuccessful, he sought leave to appeal both sets of orders. Before me the Minister accepted that course was procedurally appropriate, and in my view it provides an adequate explanation for the application for leave to appeal the 2 May 2018 Orders being seven months out of time.

18    In relation to the 21 November 2018 Orders, the application for leave to appeal was filed five days late and the applicant said that occurred because he was not aware of the 14 day time limit. I accept that ignorance of the applicable time limit is not in itself an adequate explanation but, having regard to the fact that English is not the applicant’s first language and that he did not have the benefit of legal advice in relation to the applicable time limit, the fact that the application was made five days late does not carry much weight in the balance.

Prejudice

19    The Minister does not contend that he will suffer any prejudice if the application for an extension is granted, and that consideration can be put to one side.

20    I invited the applicant to make submissions on this point and he did not contend that he will suffer prejudice if an extension of time is refused. He did though say that he has lived in Australia for more than 10 years and that he wishes to complete further study. If an extension of time is not granted he will be removed from Australia, and I consider that constitutes prejudice.

The prospects of success of the application for leave to appeal if the extension of time were granted

21    To succeed in the proposed appeal the applicant must show that on 2 May 2018 the Registrar and on 21 November 2018 the primary judge erred in the exercise of their discretions, in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499 (House v The King).

22    Because the proposed appeal is from an interlocutory decision the applicant requires leave to appeal. He must satisfy both limbs of the cumulative test in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 and show that:

(a)    there is sufficient doubt as to the correctness of the orders below to warrant review; and

(b)    if the judgment or orders below are assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

Because the respective orders have the practical effect of finalising the applicant’s rights, it is sufficient for the applicant to show a prima facie case for granting leave to appeal: Duncan v Secretary, Department of Family and Community Services [2007] FCA 507; (2007) 99 ALD 241 at [18] (French J); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [28] (Perry J).

23    In deciding whether to allow an extension of time to bring an application for leave to appeal the Court is not called on to decide whether the application for leave to appeal will succeed. What is required is an examination of the grounds of the proposed appeal at “a reasonably impressionistic level” and the Court should not descend into a full consideration of the arguments for and against each ground. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63] (Mortimer J); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (Tracey, Perry and Charlesworth JJ); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] (Siopis, White and Perry JJ).

The 2 May 2018 Orders

24    Rule 13.03C(1)(c) of the FCC Rules provides that if the applicant in a proceeding is absent from a hearing, including a first court date, the Court or a Registrar may dismiss the application. The applicant was on notice in that regard because the initiating application said:

First court date

…

All parties or their legal representatives should attend this hearing. Default orders may be made if any party fails to attend.

The Notice of Filing and Hearing said that the time and date for hearing was 2 May 2018 at 10:00 am. The applicant agreed that he had received that Notice but said that he did not understand that he was required to attend.

25    In light of the statements in the initiating application about the requirement to attend Court hearings, the applicant’s failure to appear at the first court date, and having regard to FCC Rule 13.03C, he does not have a reasonable prospect of establishing that the Registrar erred in exercising the discretion to dismiss the application.

26    To adopt the language of the grounds of the proposed appeal, the Registrar did not summarily dismiss the review application, and having regard to the applicant’s non-appearance there was no requirement for the Registrar to list the matter for “a full and final hearing” or to “investigate and assess” the applicant’s claims, and the grounds do not have reasonable prospects of success. The applicant did not identify any arguable error in the exercise of discretion by the Registrar, and did not show sufficient doubt as to the correctness of the orders made to warrant their review.

The 21 November 2018 Orders

27    Nor does the applicant have reasonable prospects of establishing that the primary judge erred by making orders to dismiss the application for reinstatement.

28    The primary judge identified (at [19]) that r 13.03C of the FCC Rules provided the Registrar with a discretion to dismiss the application for non-appearance by the applicant. His Honour correctly identified (at [20]-[25]) the applicable principles in relation to the discretionary power to reinstate a proceeding, citing with approval the decision of Mortimer J in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] where her Honour said:

…the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.

29    In relation to the applicable threshold the primary judge correctly noted (at [22]) that the exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review. His Honour cited with approval MZABP (at [6]) where Mortimer J explained that the relevant threshold is whether a ground of review is arguable, which means not fanciful, illogical, impermissible or devoid of merit, and the ground has a sufficient basis in the material before the Court for the Court to be satisfied it is appropriate to hear full argument.

30    The primary judge correctly noted (at [24]) that the decision whether or not to reinstate a proceeding is essentially discretionary and it therefore attracts the application of the principles in House v The King.

31    The primary judge considered the applicant’s explanation for his failure to appear at the directions hearing (at [26]) and noted that the applicant said that he was unfamiliar with the Australian legal system and that he had not known the application was listed for a directions hearing. In light of the statements in the initiating application about the requirement to attend Court hearings, and having regard to FCC r 13.03C, his Honour concluded that the applicant did not have a reasonable excuse for his failure to attend. That conclusion was open.

32    The primary judge then went on to consider (at [31]-[39]) whether the applicant had an arguable case for judicial review.

33    His Honour correctly noted (at [31]-[32]) that certain criteria for student visas are set out in the Regulations, and that Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant a visa under s 65 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37]-[38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [40], [102]. That is significant because under cl 572.222 of the Regulations the Minister must be satisfied that an applicant for a student visa has a certificate of enrolment in a course of study. The Tribunal found that the applicant was not enrolled in a course of study at the time of the Tribunal hearing, which the applicant confirmed before the primary judge. His Honour concluded (at [39]), correctly in my view, that the Tribunal was therefore bound to reach the decision that it did because of the operation of cl 572.222. On this basis alone the application for judicial review is not arguable.

34    It is unnecessary to detail the four grounds of review before the Federal Circuit Court and it suffices to note that the primary judge concluded that grounds one and four were no more than an attempt at impermissible merits review and grounds two and three relied upon provisions of the Migration Act 1958 (Cth) which provided no support for a conclusion that it was reasonably arguable that the Tribunal’s decision was vitiated by error. I can see no error in his Honour’s conclusions in that regard.

35    The applicant failed to show an arguable case of error by the Tribunal. Adopting the language of the grounds of the proposed appeal, the primary judge did not summarily dismiss the initiating application and instead applied established principles in refusing to reinstate it. His Honour was not required to reinstate that application and list it for “a full and final hearing” just because the applicant requested that, nor was he obliged to “investigate and assess” the applicant’s claims. The applicant did not identify any arguable error in the primary judge’s exercise of discretion to refuse reinstatement and did not establish sufficient doubt as to the correctness of the judgment and orders made to warrant their review.

Conclusion

36    It is appropriate to dismiss the application and order the applicant to pay the Minister’s costs.

Associate:

Dated:    29 October 2019