Federal Court of Australia

Naveed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1332

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The application for an extension of time is dismissed.

3.    The applicant is to pay the first respondent’s costs fixed in the amount of $4,000.

4.    If the first respondent wishes to apply to vary order 3 of the orders above, the first respondent is to file and serve an application together with short submissions in support, on or before 4pm on Wednesday, 8 November 2023.

5.    If an application is made pursuant to order 4 hereof, the applicant is to file and serve submissions in response on or before 4pm on Wednesday, 15 November 2023.

6.    Liberty to apply.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) for an extension of time within which to file a notice of appeal from a judgment of the (then) Federal Circuit Court of Australia (FCC): Naveed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 1847 (PJ). The primary judge dismissed the application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to cancel the applicant’s Student (Temporary) (Class TU) visa under s 116 of the Migration Act 1958 (Cth).

2    The applicant did not have legal representation before the primary judge or in the present proceeding.

3    For the reasons set out below, the application for an extension of time should be dismissed.

2.    BACKGROUND

4    The applicant is a citizen of Pakistan. On 27 August 2015, he was granted the visa with an expiry date of 31 January 2019.

5    On 22 June 2017, the applicant was issued a notice of intention to consider cancellation of his visa. On 29 June 2017 and 13 July 2017, the applicant responded to the notice with a statement and further supporting materials.

6    On 20 July 2017, the delegate decided to cancel the applicant’s visa, finding that the applicant was not a genuine student.

7    On 21 June 2019, the Tribunal affirmed the delegate’s decision.

8    On 21 July 2019, the applicant applied for judicial review of the Tribunal’s decision in the FCC. On 6 May 2020, the FCC listed the application for judicial review for final hearing on 7 July 2020 (PJ [19]).

9    However, the applicant emailed the FCC on 3 July 2020 requesting an adjournment of the hearing on the basis that he was “suffering from depression and anxiety” and that he was not in a position to defend his case (affidavit of Georgina Ellis affirmed on 22 March 2023 p 4). On the same day, the primary judge refused to grant the adjournment, and directed that any further requests for an adjournment must be made by an application in a case and supported by an affidavit annexing appropriate medical evidence (PJ [22]). At the final hearing, the applicant again applied for an adjournment (PJ [21]). The primary judge did not grant the adjournment and gave oral reasons for dismissing the applications for an adjournment and for judicial review. Written reasons were subsequently published on 16 September 2020.

3.    PROCEEDING IN THIS COURT

10    By an application for extension of time filed on 8 September 2020, the applicant seeks an extension of time to appeal from the FCC decision. On the same date, the applicant also filed a draft notice of appeal.

11    On 15 October 2020, the Minister filed a notice of objection to competency, on the grounds, amongst others, that the applicant’s application for an extension of time to file a notice of appeal was not accompanied by a draft notice of appeal in accordance with r 36.05(3)(d) of the FCR.

12    On 7 September 2022, the Court sent an email to the parties asking for their availabilities for a hearing in November 2022. On 12 September 2022, the applicant replied stating that he would not be “able to attend any hearing for next 3 months” due to mental health and other personal issues. On 15 September 2022, the Minister opposed the adjournment on the bases that:

(1)    the application had been on foot since September 2020, the Minister filed a notice of objection to competency in October 2020 and the applicant had had an ample opportunity to prepare his case; and

(2)    the applicant had not provided any evidence to establish that he was suffering from a medical condition or that any such condition rendered him unfit to participate in a hearing of approximately two hours in duration. This was particularly in circumstances where such hearing would not occur for at least another month and a half.

13    On 5 October 2022, I made orders:

(1)    listing the application for an extension of time for hearing on 17 November 2022;

(2)    treating the applicant’s email on 12 September 2022 as an application for adjournment until further notice of the hearing (first application for adjournment); and

(3)    requiring the applicant to file any affidavit evidence in support of his application for adjournment by 21 October 2022 (subsequently extended to 28 October 2022).

14    A notation to the orders explained that the evidence filed by the applicant in support of his adjournment application should include:

(a)    the reasons for the adjournment;

(b)    the duration of the adjournment sought;

(c)    the impact of the applicant’s alleged mental health issues on his capacity to prepare for and attend the hearing; and

(d)    any medical or other evidence in support of the application for the adjournment;

and should annex all relevant documents on which the applicant seeks to rely.

15    The applicant did not file any evidence in support of his first application for adjournment. Nor did he file any written submissions in advance of the hearing in accordance with the timetabling orders of the Registrar on 29 September 2020, varied on 31 October 2022. The Minister filed written submissions on 27 October 2022.

16    Due to unforeseen illness, the hearing on 17 November 2022 was vacated. The hearing was subsequently relisted on 21 March 2023 via Microsoft Teams.

17    On 20 March 2023, the applicant emailed the Court stating that he was unable to attend the hearing due to mental health issues. I proposed to treat this email as an application for adjournment. The Court informed the parties that:

Her Honour also proposes to allow a short adjournment to Friday 24 March 2023, in order to afford the applicant until 4pm AWST / 7pm AEDT on Thursday, 23 March 2023 to provide evidence to the Court and the respondent in support of his adjournment application. That evidence should:

•    annex any medical report or other evidence from a medical practitioner as to the state of his mental health;

•    explain how that might impact on his capacity to prepare for and appear at the virtual hearing; and

•    indicate when the applicant might be in a position to prepare for and attend a hearing of his application for an extension of time, if he is not presently in a position to do so.

Her Honour notes that this matter was originally instituted in 2020 and has already been the subject of an adjournment. Her Honour also notes that it is not possible for the Court to adjourn applications indefinitely, and that they must ultimately be heard and determined in a timely fashion.

Subject to considering any objection (as earlier mentioned), the adjournment application will be listed on Friday 24 March 2023 at 11:15am AWST / 2:15pm AEDT. If the adjournment application is unsuccessful, please note that the Court will proceed immediately to hear the application for an extension of time.

(Emphasis in original.)

18    The Minister opposed the proposed adjournment of the hearing listed for 21 March 2023 on the same grounds as the earlier adjournment application, emphasising that case management principles militated against granting any further adjournments in this matter given the protracted history.

19    After careful consideration of the matters raised by the Minister, I proceeded to treat the applicant’s email on 20 March 2023 as an application for adjournment (second application for adjournment) and considered that, as a matter of procedural fairness, it was necessary to provide the applicant with an opportunity to file evidence in support. I made similar orders to those made with respect to the earlier adjournment application allowing the applicant until 4pm AWST / 7pm AEDT on 23 March 2023 to file any evidence in support of his second application for adjournment. The orders again explained the kinds of matters which the evidence should address. Nonetheless, no evidence in support of his second application for adjournment was filed by the applicant.

20    The orders also relisted the second application for adjournment, together with the substantive application for an extension of time and notice of objection to competency, for hearing on 24 March 2023 via Microsoft Teams. The Court emailed the parties stating that:

her Honour has asked me to convey that it is important for the applicant to attend the hearing on Friday 24 March 2023 and, to the extent that he is able, to be prepared to argue his application for an extension of time on that date and respond to the notice of objection to competency, as it cannot be assumed that the adjournment application will succeed.

21    On 21 March 2023, it came to my attention that the Minister had not been served with the draft notice of appeal and it was not available on the Commonwealth Courts Portal. The Court raised this with the Minister, who indicated that he would be in a position to address it orally at the hearing on 24 March 2023 should the applicant’s adjournment application be refused. I also granted the Minister leave to file an affidavit annexing the relevant correspondence from the proceeding below concerning the applicant’s adjournment request to the primary judge.

22    On 23 March 2023, the applicant emailed the Court expressing confusion about the nature of the evidence needed and asking for a further extension of time. The Court advised him that it would be necessary for him to attend the hearing of his adjournment application on 24 March 2023. The Court’s email further stated that:

However, Justice Perry has asked me to convey that it is not anticipated that the hearing will be a lengthy one. Her Honour has also asked me to convey that the hearing is your opportunity to explain, directly to Justice Perry, your reasons for seeking an adjournment and, depending on whether your adjournment application is successful, why you think an extension of time should be granted.

In addition, the Federal Court Registry may provide guidance on preparing your evidence with respect to the adjournment application. You are welcome to speak with the registry by sending an email to nswreg@fedcourt.gov.au or telephoning them on 1300 720 980.

Finally, as mentioned in the email sent on Monday, 20 March 2023 at 9:40am, Justice Perry has asked me convey the importance of you providing any independent medical evidence that you may have in support of your adjournment application by 4pm AWST / 7pm AEDT today and that, if need be, you can also apply to give oral evidence tomorrow at the hearing in support of your adjournment application.

(Emphasis in original.)

23    On 24 March 2023, the applicant attended the hearing. The applicant confirmed that he continued to seek an adjournment of the hearing.

24    The applicant gave oral evidence in relation to the adjournment request and was cross-‍examined by the Minister’s solicitor. Among other things, the applicant explained his difficult personal circumstances, that he could not afford to see a psychologist, and that he was not able to present his own case because of his mental health and because he is not a lawyer.

25    The Minister opposed the adjournment.

3.1    Disposition of the second application for adjournment

26    I dismissed the adjournment application at the hearing and explained that I would include reasons for so holding in my reasons for judgment on the application for the extension of time. My reasons for so ruling are as follows.

27    First, the applicant has not provided medical evidence to support his incapacity to participate in, or prepare for, the hearing on 24 March 2023. Further, I accept the Minister’s submission that the applicant’s oral evidence was vague. This included evidence as to when his condition commenced, whether he had received a formal diagnosis, and the name of the psychologist who the applicant claimed had previously treated him.

28    Second, as the Minister submitted, the applicant was provided an ample opportunity to engage with the proceeding, including by filing medical evidence to support his adjournment requests. The Court explained in notations on orders and correspondence, set out above, the type of evidence which the applicant should file to support his application for an adjournment and provided the applicant with time within which to file such evidence. The applicant did not avail himself of those opportunities.

29    Third, there is no evidence concerning when the applicant would be in a better position to present his arguments. As such, the applicant appeared to be seeking an indefinite adjournment. This runs contrary to the overarching purpose identified in s 37M(1) of the Federal Court of Australia Act 1976 (Cth), being, relevantly, “to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible”.

30    Fourth, as I observed in GR16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 657 at [14], it is unfortunately the case that many litigants appear in this and other courts without legal representation, including in applications such as the present which affect the fundamental rights of the individuals concerned.

31    In those circumstances I considered that it would not be in the interests of justice to grant the adjournment. However, in order to ensure that the applicant had a meaningful opportunity to make submissions, I made orders providing that the applicant may file post-‍hearing submissions and permitting the Minister the opportunity to file submissions in response if so advised. The applicant did not file any post-‍hearing submissions.

4.    THE NOTICE OF OBJECTION TO COMPETENCY

32    As indicated earlier, the Minister filed an objection to competency. The grounds for the objection are that the application for an extension of time to file a notice of appeal was not accompanied by:

(1)    an affidavit setting out the facts on which the application relies and why the notice of appeal was not filed within time in accordance with r 36.05(3)(c) of the FCR; and

(2)    a draft notice of appeal in accordance with r 36.05(3)(d) of the FCR.

33    While explained by the applicant’s failure to serve the draft notice of appeal, the second basis for the objection cannot be sustained.

34    In relation to the first basis, I accept that the applicant’s affidavit sworn on 8 September 2020 does not set out the facts on which the applicant relies or provide any reason why the notice of appeal was not filed within time. However, in circumstances where the applicant is self-‍represented and the applicant otherwise complied with r 36.05, I waive compliance with r 36.05(3)(c) of the FCR under r 1.34 of the FCR.

5.    THE APPLICATION FOR AN EXTENSION OF TIME

5.1    Relevant legal principles

35    The discretion to extend time under r 36.05 of the FCR is not confined by express criteria, as Finn J pointed out in Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19]. However, there are a range of considerations which can appropriately be taken into account in the exercise of discretion which are of varying weight depending on the particular case, namely:

(1)    an extension of time will not be granted unless the Court is positively satisfied that it is proper to do so;

(2)    the length of the delay is a relevant factor;

(3)    the applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time;

(4)    any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time; and

(5)    the merits of the substantive appeal, if leave were granted, are properly to be taken into account.

See e.g. Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348–‍349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).

36    With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus in Katoa v Minister for Immigration [2022] HCA 28; (2022) 96 ALJR 819, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:

[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act] (or s 477(2)) [a power to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

(Citations omitted.)

5.2    Disposition of the application

37    In relation to the length and explanation of the delay, I accept the Minister’s submission that the delay of 35 days was not insignificant and that the applicant has not provided any sufficient explanation for the delay. While there was a delay in the publication of the primary judge’s written reasons which may be relevant to an applicant’s delay in some cases, I accept the Minister’s submission that it does not provide an adequate reason in this proceeding. This is because the application was filed before written reasons were published and once the written reasons were published, the applicant did not seek leave to file an amended draft notice of appeal.

38    As to prejudice to the Minister, the Minister accepts that the grant of an extension of time would not cause the Minister any prejudice. However, that factor is essentially neutral given that a lack of prejudice to the first respondent alone is not a sufficient reason to grant the application.

39    I now turn to the merits of the draft notice of appeal. In the draft notice of appeal, the applicant raises one ground of appeal, being that the primary judge erred in exercise of his discretion in refusing the applicant’s adjournment application and in failing to give sufficient weight to relevant considerations. The applicant further pleads by way of particulars that:

(a)    he had not been provided a copy of the reasons for the judgment as at the time of filing;

(b)    his “explanation for not being able to proceed with the hearing because his health suffering from was refused without any consideration”;

(c)    the grounds in his application for judicial review before the FCC could only be argued/presented through the assistance of a lawyer;

(d)    the primary judge failed to appreciate that “Grounds 1 – 2 raised the Substantive Ground of Review and instead treated Grounds 1 – 2 separately”; and

(e)    he was “unwell at the date of hearing and [i]n the absence of the legal representation through which the [applicant] could have presented legal arguments in support of his two grounds, the learned judge finding that no jurisdictional error is made out by the application is per se an error”.

40    In addition, the applicant submits the Tribunal erred in finding that he was not enrolled in a course at the relevant time. This was because the applicant claims that he had paid the relevant college fees and had been attending classes at that time.

41    The Minister filed written submissions, prior to being served with the draft notice of appeal, and made oral submissions in response to the draft notice of appeal.

42    As a preliminary issue, the Minister submits that the application should be characterised as an application for an extension of time to seek leave to appeal from an interlocutory decision of the FCC, being the primary judge’s decision to refuse to grant an adjournment. However, I consider that the application should be properly understood as an application for an extension of time to appeal from the final orders of the primary judge which the applicant contends were affected by appealable error because the primary judge, in failing to grant the adjournment, failed to accord procedural fairness to the applicant.

43    I do not consider that the draft ground of appeal has sufficient prospects of success to justify the granting of an extension of time for the following reasons.

44    First, in relation to the primary judge’s refusal to grant an adjournment, the application challenges the exercise of a judicial discretion. The question is therefore whether an error of the kind identified in House v The King has been established, such as whether the primary judge acted “upon a wrong principle” or whether there has been a failure to properly exercise the discretion inferred from a decision which was “unreasonable or plainly unjust”: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). I do not accept the contention in particular (b) that the primary judge did not consider the applicant’s claim that his mental health meant that he could not proceed with the hearing. The primary judge considered the request for the adjournment at [21]–‍[25] of his reasons. The adjournment was refused because there was no medical evidence to support the applicant’s claims about his mental health, the applicant’s submission that he was unable to meaningfully participate in the hearing was regarded by the primary judge as inconsistent with the applicant’s conduct, and the merits of the substantive application did not in the view of the primary judge warrant the granting of an adjournment: PJ at [24]–‍[30]. I do not consider that the primary judge’s decision was unreasonable or unjust in the relevant sense, or otherwise raised any error of a kind referred to in House v The King.

45    Second, in relation to particular (a), I do not consider the delay by the primary judge in providing written reasons, in itself, amounts to an appealable error: ELR18 v Minister for Home Affairs [2019] FCA 1583 at [45] (Snaden J). Further, there is no prejudice to the applicant in this proceeding as the primary judge’s written reasons were published on 16 September 2020, over two years before the hearing of this application.

46    Third, in relation to particular (c), while the applicant claimed that he was not capable of “defending” his case by himself (affidavit of Georgina Ellis affirmed on 22 March 2023 p 4), the applicant did not seek an adjournment because he lacked legal representation. As such, the primary judge was not required to consider this issue. Further, the applicant did not have a right to legal representation in the FCC.

47    Fourth, in relation to particular (d), I accept the Minister’s submissions that the primary judge recognised there was an overlap between grounds 1 and 2 of review below. Ground 1 alleged that the Tribunal erred in affirming the delegate’s decision “which was itself affected by jurisdictional error and accordingly of no effect in law” while ground 2 alleged that the Tribunal “failed to accord procedural fairness”. The primary judge at [32] considered ground 1 of the review and found that “[o]n the face of the material before the Court, the Tribunal complied with its statutory obligations in conducting the review and the applicant had a real and meaningful hearing before the Tribunal”. The primary judge then considered ground 2 at [33] and found “on the face of the material before the Court, as referred to above, the Tribunal complied with its statutory obligations in the conduct of the review” (emphasis added). Therefore, the primary judge was cognisant of the relationship between the grounds of review.

48    Fifth, the Tribunal considered the applicant’s claim that he continued to attend classes between June 2016 and June 2017 (the relevant period) at [17]–‍[21] of its decision. In summary, the Tribunal did not find the applicant’s evidence in support of his claim that he continued to attend classes over the relevant period to be plausible and did not consider that it supported a finding that the applicant was a genuine student. In reaching that view, the matters taken into account by the Tribunal included the following: the applicant’s response to an email from the World College Group evidenced that the applicant was aware his enrolment was cancelled; the applicant enrolled in alternative courses between April and September 2016 which it was unlikely he would have done if he had been attending classes for the Advanced Diploma of Business until October 2016; and the letter which the applicant provided from the Perth College of Business and Technology in relation to his enrolment in an Advanced Diploma of Hospitality Management was ambiguous and inconsistent with the Provider Registration and International Student Management System (PRISMS) records, which the Tribunal preferred. On the basis of these reasons, the Minister submits and I accept that the Tribunal’s finding that the applicant had not been attending classes during the relevant period was open to the Tribunal and was not illogical or irrational.

49    It follows that the proposed appeal lacks sufficient prospects of success to warrant the grant of an extension of time. It would not therefore be in the interests of justice to grant the extension of time and the application must, therefore, be dismissed.

6.    COSTS

50    The Minister seeks his costs fixed in the amount of $4,000.

51    Rule 40.43 of the FCR applies in relation to an application for an extension of time to start an appeal from an order made by the Federal Circuit and Family Court of Australia (Division 2) (formerly the FCC) in respect of a migration decision: r 40.43(1)(c). As this application is to be dismissed after the hearing, the Minister is entitled to costs mentioned in item 15.2 of Schedule 3 of the FCR, being $7,965. The Minister submits that an order fixing costs in the amount of $4,000 is appropriate given that the sum is less than the amount that can be claimed in a Short Form Bill, and the amount sought is reasonable and “proportionate to the nature, including the complexity, of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] (Kenny J). As the Minister submits, the Court retains a broad discretion in relation to costs and it is permitted and open to fix costs in appropriate cases: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29]–‍[30] (Griffiths J).

52    I am satisfied that an order as to costs fixed in the amount $4,000 should be made.

7.    CONCLUSION

53    The application for an extension of time is dismissed with costs fixed in the amount $4,000.

Associate:

Dated:    1 November 2023