Prasad v Department of Immigration & Citizenship [2008] FCA 945

FEDERAL COURT OF AUSTRALIA

Prasad v Department of Immigration & Citizenship [2008] FCA 945

AMRISH PRASAD v DEPARTMENT OF IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 167 of 2008

SPENDER ACJ

22 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 167 of 2008

BETWEEN: AMRISH PRASAD

Applicant

AND: DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER ACJ

DATE OF ORDER: 22 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to seek leave to appeal from the orders of Smith FM on 19 December 2007 is refused. 2. The applicant pay the costs of the first respondent of and incidental to this application, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 167 of 2008

BETWEEN: AMRISH PRASAD

Applicant

AND: DEPARTMENT OF IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER ACJ

DATE: 22 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for extension of time in which to file and serve a Notice of Appeal from the judgment of Smith FM in Prasad v Minister for Immigration (2007) FMCA 2147. That judgment was pronounced ex tempore on 19 December 2007. 2 Mr Prasad filed an application for review on 11 February 2008. The applicant is therefore just over a month late and requires an extension of time within which to seek leave to appeal. Leave is required because Smith FM dismissed the applicant's case under rule 44.12(1)(a) of the Federal Magistrates Court Rules. 3 As I confirmed with Mr Prasad at this hearing, his proposed appeal relates to a sub-class 560 visa, a student visa, which had been granted to him. The appeal does not relate to the dismissal of an application for a protection visa, which also had been previously applied for by Mr Prasad. 4 The decision of the Federal Magistrate that there was no arguable case for Mr Prasad to challenge the decision of the Migration Review Tribunal (the Tribunal), depended on the conclusion that the Tribunal, in finding that it did not have jurisdiction to entertain the application filed by Mr Prasad, was correct and that Mr Prasad had shown no arguable basis for seeking relief by way of mandamus directed to the Tribunal. 5 The history of the matter is this: Mr Prasad is a citizen of Fiji. He applied for a Student (Temporary) (Class TU) visa on 22 March 2001. On 28 March 2001, the relevant subclass 560 (Student) visa was granted. The student visa expired on 31 March 2003. Before that happened, on 10 and 11 April 2002, the applicant was sent a "non-compliance notice" purporting to be under s 20 of the Education Services for Overseas Students Act 2000 (Cth). If valid, such a notice would have had the effect of automatically cancelling the applicant's visa under s 137J(2) of the Migration Act 1958 (Cth) (the Act). 6 The applicant failed to respond to that non-compliance notice and, as a consequence, his visa was automatically cancelled. However, as set out in the reasons for the decision of the Tribunal in the present case, the purported automatic cancellation of the applicant's student visa was reversed on 17 August 2005 and, given the effect of the Federal Magistrates Court decision in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841, his student visa was not in fact cancelled. Mr Prasad had been placed in detention and charged $2,061.40. The department wrote to him and waived that debt due to the incorrect application of s 137J of the Act. 7 So far as the judgment from which appeal is sought, Smith FM was of the view that, notwithstanding that the cancellation under s 20 was reversed, the student visa granted to Mr Prasad had expired by effluxion of time on 31 March 2003. After that date, he was therefore unlawfully in Australia, until the later grant of a series of bridging visas. 8 For completeness, I should add that the applicant applied for a protection visa on 6 October 2004, which was refused on 7 October 2004. He sought review of that decision before the Refugee Review Tribunal on 13 October 2004, which affirmed the decision on 23 December 2004. 9 I noted in the course of the oral hearing today, that in relation to the reasons for delay, Mr Prasad said, in his affidavit accompanying his application: There has been a delay on my part in lodgement of this application to the Federal Court owing to interruption – i.e. the Cyclone Gene that grinded Fiji to a halt and the strong winds and heavy rain flattened my parent's house in Fiji. This disturbed my state of mind, in a large way both psychologically and mentally totally distracted me from the deadline of the lodgement of my application to the Federal Court; although the paper were in principle ready for lodgement quite before time. 10 The draft notice of appeal and the orders sought, if leave were granted, are convoluted and have some difficulty in being understood. The draft notice alleges that the Tribunal failed to take into account relevant matters and has misunderstood the Refugee Convention. Further, the notice contends that insufficient notice was given of the grounds to be relied on by the Tribunal, that the applicant was not afforded procedural fairness, and that the Tribunal was biased against the applicant. 11 As I pointed out to Mr Prasad, there is nothing in the draft notice of appeal which alleges any error on the part of the Federal Magistrate, and Mr Prasad acknowledged that in fact what he was arguing was that the Federal Magistrate erred in failing to find the errors which are alleged in the eight grounds in the draft notice of appeal. 12 The point, however, is a very short one. The Tribunal found that it had no jurisdiction to review the cancellation of his subclass 560 (Student) visa, or in relation to the fact that that visa had expired. 13 The Federal Magistrate concluded, at paragraph 10: There was no decision refusing to grant a visa of any class reviewable by the Migration Review Tribunal. In particular, if Mr Prasad was seeking to have the Tribunal review the effect of section 137J(2) on his student visa, there was no jurisdiction to do that since "cancellations of this kind do not involve decisions and are therefore not MRT-reviewable decisions." As I have indicated above, in my opinion, the Tribunal's conclusion in that respect was undoubtedly correct and has the support of authority, including the decision of Lander J… 14 The decision of Lander J referred to is his Honour's judgment in Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300, in which his Honour rejected, at [55], the contention that: … any administrative decision of any kind is made when 137J applies by reason of a notice having been given under section 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. 15 The Federal Magistrate noted that the application argued that the decision of the Tribunal was in error as it had wrongly declined jurisdiction. His Honour held, at 15: … the Tribunal's opinion that it did not have jurisdiction to entertain the application filed by Mr Prasad was undoubtedly correct, and he has shown no arguable basis for seeking relief by way of a writ of mandamus directed to the Migration Review Tribunal. 16 In my judgment, there is nothing to suggest that there is any error, let alone jurisdictional error, in the judgment of Smith FM. 17 In those circumstances, any appeal would enjoy no prospects of success and, for that reason, leave to appeal would not be granted. It follows, therefore, that there would be no utility in granting an extension of time within which to seek leave to appeal from the judgment of Smith FM, and for those reasons I decline to extend the time within which to seek leave to appeal. 18 The application for an extension of time within which to seek leave to appeal from the orders of Smith FM of 19 December 2007 is refused. The applicant is to pay the first respondent's costs, to be taxed, if not agreed. I certify that the preceding eighteen (18) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.