FEDERAL COURT OF AUSTRALIA Manna v Minister for Immigration and Citizenship [2013] FCA 400 Citation: Manna v Minister for Immigration and Citizenship [2013] FCA 400 Appeal from: Application for extension of time: Manna v Minister for Immigration [2012] FMCA 28 Parties: KHALEDA MANNA and MUHAMMAD SIRAJUL ISLAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): NSD 7 of 2013 Judge: FARRELL J Date of judgment: 2 May 2013 Catchwords: PRACTICE AND PROCEDURE – application for extension of time – notice of appeal – reason for delay – whether application for ministerial intervention adequate excuse – self-represented litigants – Federal Court Rules 2011 (Cth) r 36.05 Legislation: Federal Circuit Court of Australia Amendment Act 2012 (Cth) Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court Rules 2011 (Cth) rr 36.03, 36.05 Federal Court Rules O 52 r 15(2) Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) cll 1.15C, 485.215, 485.222 Cases cited: Coulton v Holcombe (1986) 162 CLR 1 Gallo v Dawson (1990) 93 ALR 479 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Manna v Minister for Immigration [2012] FMCA 28 Metwally v University of Wollongong (1985) 60 ALR 68 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364 SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 Date of hearing: 29 April 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant appeared in person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 7 of 2013 BETWEEN: KHALEDA MANNA First Applicant MUHAMMAD SIRAJUL ISLAM Second Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 2 MAY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for extension of time is dismissed. 2. The applicants are to pay the first respondent's costs. Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 7 of 2013 BETWEEN: KHALEDA MANNA First Applicant MUHAMMAD SIRAJUL ISLAM Second Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE: 2 MAY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By an application filed on 4 January 2013, the applicants seek an extension of time to file a notice of appeal from a judgment of the Federal Magistrates Court delivered on 20 January 2012. In that judgment, a Federal Magistrate dismissed an application for judicial review of a decision of the Migration Review Tribunal dated 16 June 2011: Manna v Minister for Immigration [2012] FMCA 28. 2 The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court now continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, the terminology of Federal Magistrate and Federal Magistrates Court have been retained for convenience and because that terminology was current both at the time the impugned decision was made and the application was filed. 3 The first applicant (the applicant) is a Bangladeshi citizen who arrived in Australia in August 2002 as the holder of a student visa. On 30 May 2008 the applicant applied for a Skilled (Provisional) (Class VC) visa, including her spouse, the second applicant, in the application. A delegate of the Minister made a decision to refuse the application for the visa in June 2009. The delegate found that the applicant did not meet the criteria of cl 485.215(a) of the Migration Regulations 1994 (Cth) (the Regulations) as the applicant's nominated occupation of accountant was not, at the relevant time, included in the ASCO Major Group IV. The delegate also found that the application did not satisfy cl 485.215(b) as the applicant's IELTS test results were below those required by cl 1.15C of the Regulations. The Tribunal 4 On 23 July 2009, the applicant filed an application for review with the Migration Review Tribunal. Four days prior to the hearing, the applicant's solicitor requested that the Tribunal allow her additional time before making its determination so that she might sit a further IELTS test. At the hearing on 9 May 2011, the Tribunal allowed the applicant until 11 June 2011 to undertake a further test. The applicant's solicitor wrote to the Tribunal on 13 May 2011, indicating that the earliest date that the applicant was able to sit the test was 25 June 2011. 5 An officer of the Tribunal telephoned the applicant's solicitor and advised that several IETLS test appointments were available on 11 June 2011. For this reason, the Tribunal declined to give the applicant more time. It found that she had already been given ample opportunity to undertake the IELTS test and achieve the necessary results required by cl 485.215(b). The Tribunal found that the application did not meet the criteria of cl 485.215(a) because the applicant's nominated occupation of accountant was not, at the relevant time, included in the ASCO Major Group IV and the Tribunal was not satisfied that the applicant had competent English within the meaning of cl 485.215(b). The Tribunal also found that the applicant did not meet the requirements of cl 485.222 of the Regulations in that the applicant did not have competent English at the time the decision was made. The Tribunal affirmed the delegate's decision. the federal Magistrates court 6 The applicants sought judicial review of the Tribunal's decision on 15 July 2011. On 31 August 2011, an amended application was filed containing the following grounds (errors in the original): The Tribunal found (at MRT DECISION, page 5, paragraph 27), that the applicant does not meet cl.485.215(b) and cl. 485.222(b). The applicant had made arrangements to undergo a language test (IELTS) before the application was submitted. so the applicant meet cl. 485.215. Now question is, when the applicant has to meet cl.485.222, "if at time of decision", then question arise, when decision will be made? it is uncertain. So the applicant does not has time limit to meet cl. 485.222. On this basis the Tribunal fell into jurisdictional error. 7 In written submissions, the applicants also alleged bad faith on the part of the Tribunal. 8 The Federal Magistrate declined to interfere with the discretionary decision of the Tribunal to refuse to grant the applicant an extension of time to sit the further IELTS test. The Federal Magistrate observed that as three years had elapsed between the visa application and the Tribunal's decision, the applicant had ample time to achieve the necessary IELTS results, and it was open to the Tribunal to conclude that a further extension of time was not justified. The Federal Magistrate found that the applicant would have had to have been able to demonstrate that she had "competent English" at the time of the decision. The Federal Magistrate also noted that there was no obligation for the Tribunal to notify the applicant when it intended to make its decision and that in any case the applicant had been put on notice. The application was dismissed. The Present application 9 Together with her application for extension of time, the applicant filed an affidavit with the following paragraphs in support of her application (errors in the original): 1. Federal Magistrates court decision was delivered on 20 01 2012, and then I applied to the Minister for ministerial intervention within 28 days of the decision. I do not have any lawyer. It was my believed that I can lodge the Notice of Appeal in Federal Court within 28 days after the outcome of Ministerial Intervention Request. 10 The affidavit also attached a draft notice of appeal with a single ground of appeal (errors in the original): Tribunal's decisions on 16 June 2011 was unreasonable and unfair. According to MIGRATION ACT 1958 – SECT 353 (1)"The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical and quick", in my case Tribunal did not consider the fact. On 05 May 2011 my Migration Agent inform to the Migration Review Tribunal with evidence, that I booked a test which is to take place on 09 July 2011 (CB 87). At the Tribunal Hearing (09 May 2011) the Tribunal Member asked me to find an IELTS test date of 11 June 2011, but I find earliest IELTS test date which is 25 June 2011. I paid additional $55.00 transfer fee to transfer my test date from 9 July 2011 to 25 June 2011 (CB p89), and my Migration Agent inform to the Migration Review Tribunal on 13 May 2011 about my test booking date ( 25 June 2011). According to University of Technology, Sydney(UTS) Website: "Earlier tests are based on first in first serve basis and availabilities are limited. They cannot be reserved" Tribunal did not accept that, I could not find any earlier test date rather than 25 June 2011, because of her bad faith. On this application should be order to Tribunal to rehear and re-determine with cost 11 At the hearing, the applicants appeared in person and without an interpreter. The Minister was represented and provided written and oral submissions. The applicant offered no further explanation which went beyond that contained in the applicant's affidavit in support of the application. The second applicant referred to paragraph [48] of the Federal Magistrate's judgment: [48] In these circumstances another Tribunal may have granted the extension [that is, an extension beyond 11 June 2011 for the applicant to sit the IELTS test]. The Court may have even been so minded if it could engage in merits review to have granted the extension in the circumstances. The second applicant argued that it was unfair for the Tribunal to deny an extension when a differently constituted Tribunal may have granted one. Extension of time 12 Rule 36.03 of the Federal Court Rules 2011 (Cth) (Rules) requires a notice of appeal to be filed within 21 days after the date the judgment appealed from was pronounced or the order was made. Rule 36.05 sets out the procedure for an application for an extension of time to file a notice of appeal. It includes a requirement that the application be accompanied by an affidavit stating (among other things) "why the notice of appeal was not filed within time": r 36.05(3)(c)(ii). There is no longer a requirement to provide "special reasons", as was the case under Order 52 Rule 15(2) of the now repealed Federal Court Rules. 13 In SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281, Collier J exercised the discretion under r 36.05 by reference to the principles expressed in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. That is to say, the Court must be satisfied that, amongst other things: there is an acceptable explanation for the delay, there would be no undue prejudice to the respondent if the Court were to grant leave, and there is merit in the substantive appeal or application. 14 There is no automatic right to an extension. The discretion to extend time is given for the sole purpose of enabling justice to be done between the parties; so that rules which fix time do not become "instruments of injustice": see Gallo v Dawson (1990) 93 ALR 479 at 480. The longer the period of delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. There is a public interest in the expeditious conduct of litigation, reflected in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). 15 In this case the delay has been for 329 days. Application to the Minister 16 The Court has previously rejected an application to the Minister under s 351 of the Migration Act 1958 (Cth) as an acceptable reason for delay in filing a notice of appeal: see Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29] per Jessup J (Gyles and Besanko JJ agreeing). The Minister's representative drew the Court's attention to a remark of Hayne J in his ex tempore judgment in Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364 at lines 148-152: Nonetheless, the pursuit of that path is, in my opinion, not a sufficient explanation for the failure to institute proceedings making the allegations which now it is sought to pursue. That of itself would be reason enough to conclude that the proceedings brought should stand dismissed. … See also Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 at lines 1296-1304 per Crennan J. I consider that this is not an acceptable excuse in this case. Lack of legal advice 17 While the Court generally provides some latitude to self represented litigants in the conduct of matters to which they are party, the lack of legal advice alone is an insufficient excuse for failure to lodge a notice of appeal within the time prescribed by r 36.03: see SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8] per Katzmann J and SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] per Flick J. I do not find the lack of legal representation, an acceptable explanation for the delay in this case. Conclusion 18 The delay of 329 days in seeking to file a notice of appeal is very substantial and neither of the explanations offered by the applicant is acceptable. On this basis alone, the application for an extension of time should be dismissed. Merits and unfair prejudice 19 Although strictly unnecessary to my decision, I will deal with the other two arguments raised by the Minister as to why the application for extension of time should not be granted. They are: (a) the applicant has not identified any error by the Federal Magistrate in the draft notice of appeal; and (b) the ground raised by the applicants in the draft notice of appeal was not argued before the Federal Magistrate. 20 I do not find merit in the ground set out in the draft notice of appeal. There is no obvious error in the Federal Magistrate's reasons. It was not open to the Federal Magistrates Court, nor is it open to this Court, to engage in merits review of the Tribunal's decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. 21 The second applicant claims that the decision was unfair because, as the Federal Magistrate recognised at [48], a differently constituted Tribunal may have made a different decision about the amount of time the applicant should be given to sit another IELTS test. While the Federal Magistrate was no doubt right in describing the Tribunal's decision as "hard", I agree that it cannot be said in any relevant sense to be "unfair" because the applicant did have opportunity over a three year period to pass the IELTS test, was given an opportunity to schedule a test on 11 June and was on notice of the relevant issues: see the Federal Magistrate's reasons at [56]-[60]. Nor do I regard this decision of the Tribunal as one which is so unreasonable that no reasonable decision maker could have made it. 22 In the draft notice of appeal, the applicants again suggest that the Tribunal acted in bad faith. No evidence was offered either before the Federal Magistrate or this Court to substantiate that claim. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation must be clearly made and proved. The circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[44]. In these circumstances, the Federal Magistrate was clearly right to reject this claim, and it must be rejected by the Court as well. 23 Lastly, the representative for the Minister cited SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [29]-[30] in support of the proposition that even though the Minister could not point to any prejudice of a conventional kind in leave being granted, there is public interest in the timely disposal of applications in which the Minister has a legitimate interest. Perhaps the weighty issue raised in those paragraphs is the recognition that where, as here, the applicants seek to rely on grounds which are substantially different from those raised in the court below, it has the effect of making this Court a court of original jurisdiction rather than appellate. That is inappropriate and would unnecessarily burden the High Court on review. Save for exceptional circumstances, this will not be permitted: see Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7; SZKMS v Minister for Immigration and Citizenship at [22]-[28]. 24 I will dismiss the application and order the applicants to pay the costs of the Minister. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 2 May 2013