Habib v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1447

FEDERAL COURT OF AUSTRALIA

Habib v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1447 TAHIR HABIB V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 518 OF 2002 NORTH J 18 NOVEMBER 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 518 OF 2002

BETWEEN: TAHIR HABIB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH

DATE OF ORDER: 18 NOVEMBER 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an extension of time to appeal is refused. 2. The applicant is to pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 518 OF 2002

BETWEEN: TAHIR HABIB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH

DATE: 18 NOVEMBER 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to appeal. The application is brought under O 52 r 15(2) of the Rules of the Federal Court. The judgment appealed from was delivered on 16 July 2002. In that decision, the primary judge rejected an application by the applicant for review of a decision of the Migration Review Tribunal (the Tribunal) which upheld the decision of the delegate to refuse the applicant a Student (Temporary) (Class TU) (Subclass 560) visa. 2 The primary judge gave his reasons orally on 16 July 2002. They were reduced to writing and forwarded to the applicant a short time afterwards. The written reasons for judgment bear the date of 9 August 2002. The applicant sought to file in court a notice of appeal on 12 August 2002. That was only a few days after the date of the written judgment but later than 21 days from the date the judgment was given orally (O 52 r 15(1)). It was, the applicant says, the same day that he received a copy of the written reasons. In these circumstances, it can hardly be said that the applicant delayed in taking steps to appeal against the decision. 3 The application for an extension of time is opposed by the respondent, but not on the basis that the applicant delayed in taking action, nor on the basis that the applicant had no acceptable explanation for delay. The respondent also concedes that it suffers no prejudice by the short delay which has occurred. The ground upon which the respondent opposes the application for an extension of time is that the appeal simply cannot succeed. 4 The issue which was before the Tribunal was whether the applicant had substantially complied with the conditions, if any, to which the visa held or last held by the applicant was subject. The applicant held a student visa prior to his application for the present visa and that student visa had been granted to him on 6 March 2000. That visa was subject to condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, that condition was as follows: "8202 The holder: … (b) must… (i) attend at least 80 % of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or (ii) if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory …" 5 In December 2000, that condition was replaced by a new condition 8202 which applied to all student visas that were in effect at the time of the change. The new condition 8202 is contained in Schedule 4 of the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth). So far as is relevant, it provides: "(2) Condition 8202 of each visa to which this item applies is taken for all purposes to be as set out in subitem (3) …