Federal Court of Australia

Shakira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 848

ORDERS

THE COURT ORDERS THAT:

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

2.    The applicants pay the first respondents’ costs of $4,231.50.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    Ms Atiya Shakira, a citizen of Pakistan, arrived in Australia on 27 December 2010 as the holder of a Student (Class TU, Subclass 572) visa (student visa). On 29 December 2017, she lodged an application for a further student visa. The visa application named Mr Ghazanfar Murtaza as a dependant applicant. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused Ms Shakira’s visa application because she did not meet one of the criteria for the grant of a student visa. The Administrative Appeals Tribunal subsequently affirmed the delegate’s decision on review. Ms Shakira and Mr Murtaza sought judicial review of the Tribunal’s decision in the then Federal Circuit Court of Australia. The primary judge dismissed that application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the basis that it did not raise an arguable case for the relief claimed: Shakira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 914 (J). Ms Shakira and Mr Murtaza were also ordered to pay the Minister’s costs.

2    Ms Shakira and Mr Murtaza applied to this Court for an extension of time and leave to appeal the judgment and orders of the primary judge. Leave to appeal is required because the dismissal of an application under r 44.12 of the Circuit Court Rules is interlocutory. An extension of time is required because the application was not filed within the 14 day period allowed for the filing of applications for leave to appeal. It was filed six days late.

3    For the reasons that follow, Ms Shakira’s and Mr Murtaza’s application for an extension of time and leave to appeal must be dismissed. In short, the judgment of the primary judge is not attended with sufficient doubt to warrant the grant of leave to appeal. Indeed, it is apparent that the proposed appeal is unmeritorious and would be doomed to fail. The grant of an extension of time and leave to appeal in those circumstances would be futile.

The delegate’s decision and the Tribunal’s decision on review

4    The delegate refused Ms Shakira’s student visa application because she did not meet a key criterion for the grant of a student visa. That criterion, which was specified in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth), was that the visa applicant was a “genuine applicant for entry and stay as a student because … the applicant intends genuinely to stay in Australia temporarily” (the genuine temporary entrant requirement). The delegate was not satisfied that the applicant intended to stay temporarily in Australia and held concerns that she was using the student visa program “as a means of maintaining ongoing residence”.

5    Ms Shakira and Mr Murtaza applied to the Tribunal for a review of the delegate’s decision.

6    The Tribunal invited Ms Shakira and Mr Murtaza to provide information pursuant to s 359 of the Migration Act 1958 (Cth). The information requested by the Tribunal concerned whether Ms Shakira was enrolled in a course of study. A key criterion for the grant of a student visa was that the visa applicant be enrolled in a course of study at the time of the decision: cl 500.211(a) of Sch 2 of the Regulations. Ms Shakira’s response to the Tribunal’s invitation indicated that she did not have a current confirmation of enrolment in a course of study. The response also confirmed that Ms Shakira consented to the Tribunal deciding the review of the delegate’s decision without conducting a hearing.

7    On 19 December 2019, the Tribunal decided to affirm the delegate’s decision. The Tribunal concluded that Ms Shakira was not enrolled in a course of study and therefore did not meet the criterion in cl 500.211(a) of Sch 2 of the Regulations, or any of the alternative criteria in cl 500.211. Her application for a student visa accordingly failed. As a result, the application by Mr Murtaza, as the dependent applicant, also failed.

Proceedings in the Circuit Court

8    Ms Shakira and Mr Murtaza were not legally represented when they commenced and prosecuted their application in the Circuit Court. The grounds of their initiating application did not, on its face, appear to identify or articulate any error or omission on the part of the Tribunal which could amount to a jurisdictional error. The application therefore failed to identify a proper basis upon which the relief sought could be granted.

9    The grounds of the application were, in summary: first, the Tribunal “misunderstood [Ms Shakira’s] issue and ignored detailed information … in which [she had] stated all [her] academic achievements”; second, “the Tribunal ignored [Ms Shakira’s] explanation and concluded that there is no intention to further studies and … ignored [her] circumstances”; third, “the failure to contact [Ms Shakira] and verify the information provided [was] a denial of natural justice”; and fourth, “the Tribunal failed to conclude that [Ms Shakira had] every intention to continue [her] education”.

10    Ms Shakira’s and Mr Murtaza’s application was listed for a show cause hearing before the primary judge. Ms Shakira appeared and represented herself at that hearing as the primary applicant. She did not file any written submissions. It would appear from the reasons of the primary judge that Ms Shakira’s oral submissions were mostly not directed to the grounds identified in her application. She referred to her desire to pursue further studies, acknowledged her error in not providing a current confirmation of her enrolment in a course of study and indicated that she wanted the Court to give her more time to pursue her studies: J [5]. The primary judge characterised those submissions as amounting to nothing more than an invitation to the Court to engage in merits review and determine her application on compassionate or discretionary grounds: J [5]. Ms Shakira also pointed out to the primary judge that she did not have a hearing in the Tribunal, though his Honour noted that the applicant had consented to not having a hearing: J [6].

11    The primary judge also addressed each of the grounds of review in Ms Shakira’s and Mr Murtaza’s application. His Honour concluded that the first, second and fourth grounds were misconceived as they were directed at the delegate’s findings concerning the genuine temporary entrant requirement, whereas the Tribunal’s decision was based on Ms Shakira’s failure to comply with the criterion that she be enrolled in a course of study: J [2(17)]. His Honour noted that Ms Shakira’s own evidence confirmed that she did not meet that criterion: J [2(17)]. As for the third ground, the primary judge rejected the contention that Ms Shakira had been denied natural justice in circumstances where she had herself confirmed that she was not enrolled in a course of study and had indicated her consent to the Tribunal determining her review application without convening a hearing: J [2(18)-(25)].

12    The primary judge concluded that none of the grounds specified in the application, and nothing that was said by Ms Shakira in her submissions, raised any arguable case of error: J [9]. His Honour found in those circumstances that the application did not raise an arguable case for the relief claimed and that it was appropriate to exercise the power to dismiss the proceeding pursuant to r 44.12 of the Circuit Court Rules: J [9]-[10].

13    The primary judge gave oral reasons for dismissing the application on 4 May 2021. His Honour’s written reasons were published on 10 June 2021.

The application to extend time

14    The considerations that should ordinarily be taken into account in considering whether to extend the time within which an appeal, or application for leave to appeal, may be filed include: the extent of the delay; the explanation for the delay; any prejudice that the respondent to the appeal or application may suffer as a result of the delay; and the merit of the proposed application: Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 at 310-11.

15    The delay of only six days occasioned by the late filing of the application in this matter could scarcely be said to be extensive. Nor did the Minister point to any real prejudice that he may suffer by reason of the delay. Ms Shakira and Mr Murtaza did not, however, provide any reasonable or acceptable explanation for the delay. In the affidavit filed in support of the application, Ms Shakira simply asserted that the primary judge did not advise her of any time limit for the filing of an application for leave to appeal and she believed that she had 21 days in which to do so. She also said that she did not have the primary judge’s written reasons at the time she filed her application.

16    Ignorance of time limits is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration and Citizenship (2012) ALD 17; [2012] FCA 1319 at [38]. The fact that Ms Shakira and Mr Murtaza did not have the primary judge’s written reasons at the time they filed the application is also not an acceptable explanation in circumstances where Ms Shakira was present when his Honour gave his oral reasons. Ms Shakira and Mr Murtaza did not seek leave to amend their application when they in due course received the primary judge’s written reasons.

17    Despite the absence of any reasonable or acceptable explanation for the delay, the critical issue in respect of the extension application is the merits of the proposed application for leave to appeal. That primarily hinges on whether the proposed grounds of appeal are reasonably arguable. That issue is best considered in the context of the application for leave to appeal.

The application for leave to appeal

18    An applicant for leave to appeal in this Court must generally establish that there is sufficient doubt as to the correctness of the relevant judgment to warrant its reconsideration by the Full Court and that, assuming the judgment to be wrong, the applicant would suffer substantial injustice if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 at 398.

19    It may be accepted Ms Shakira and Mr Murtaza would suffer substantial injustice if the primary judge was wrong to dismiss her application and leave to appeal was refused. The critical issue, in those circumstances, is whether the proposed appeal has any apparent merit or is at least reasonably arguable.

20    Ms Shakira’s and Mr Murtaza’s proposed grounds of appeal are uninformative and deficient. They simply note that that they will “respond further” when they receive a copy of the primary judge’s written reasons. Ms Shakira and Mr Murtaz no doubt received the primary judge’s written reasons, but they did not “respond further” by filing either a further draft notice of appeal or written submissions.

21    In her oral submissions, Ms Shakira referred to the certificates, diplomas and degrees that she had enrolled in and completed while in Australia and her intention and desire to further her studies. She also referred to the circumstances in which she ceased studying, obtained a particular type of work visa (commonly known as a “457 visa”) and commenced working at a restaurant. After working for a while, Ms Shakira then applied for a further work visa. It was that application which was refused by the delegate. She then suffered some health problems which effectively prevented her from pursuing her studies. Ms Shakira candidly conceded that she was not enrolled in any course at the time of the Tribunal’s review of the delegate’s decision. She also agreed that she had consented to the Tribunal deciding her review application without a hearing, though she submitted that the Tribunal did not send her a follow up email or ask her for any further evidence.

22    Unfortunately for Ms Shakira, her submissions did not identify any appellable error in the decision of the primary judge, or any basis upon which it could be found that the Tribunal made a jurisdictional error in determining her review application. It is perhaps not surprising that Ms Shakira has been unable to identify any appellable error in the judgment and orders of the primary judge. That is because the primary judge was plainly right to dismiss her application for judicial review. There is no apparent basis upon which to contend that the Tribunal made any jurisdictional error in determining its review. Indeed, it is difficult to see how the Tribunal could have made any decision other than affirming the decision under review.

23    Ms Shakira had advised the Tribunal that she did not have any confirmation of her enrolment in a course. She also clearly consented to the Tribunal determining her review application without conducting a hearing. The Tribunal’s conclusion that Ms Shakira did not meet the criterion for the grant of a student visa in cl 500.211(a) of Sch 2 of the Regulations was in those circumstances inevitable and plainly correct. It was also plainly open to the Tribunal to determine the review application without convening a hearing given that Ms Shakira had consented to that course. The Tribunal was not obliged to contact Ms Shakira again once that consent had been communicated to it.

24    The grounds identified in the application filed in the Circuit Court by Ms Shakira and Mr Murtaza did not identify any arguable case for the relief claimed. Nor did Ms Shakira’s submissions. Indeed, it would appear that Ms Shakira effectively conceded that she was not enrolled in any course of study at the time the Tribunal decided her review application. She also did not appear to dispute that she had consented to the Tribunal determining her review application without a hearing.

25    Ms Shakira and Mr Murtaza have accordingly not demonstrated that they have any arguable grounds of appeal. Their application for an extension of time and leave to appeal must therefore be dismissed. Ms Shakira and Mr Murtaza have not provided any reason for why the costs of their application should not follow the event. They must accordingly pay the Minister’s costs of the application.

26    The Minister applied for an order pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) that he be awarded a lump sum in respect of his costs. He relied on an affidavit affirmed by a solicitor which estimated that if the Minister’s costs were taxed, he wold be entitled to costs in the amount of $4,231.50. The affidavit sufficiently explained how that estimate had been arrived at. This is an appropriate case in which to make a lump sum costs order and the figure proposed by the Minister is reasonable.

Conclusion and disposition

27    The appropriate orders are accordingly that the application for extension of time and leave to appeal be dismissed and the first and second applicants pay the first respondent’s costs of $4,231.50.

Associate:

Dated:    27 July 2023