FEDERAL COURT OF AUSTRALIA Islam v Minister for Immigration and Border Protection [2016] FCA 523 Appeal from: Islam v Minister for Immigration and Border Protection and Anor [2015] FCCA 3024 File number: NSD 1626 of 2015 Judge: MARKOVIC J Date of judgment: 13 May 2016 Legislation: Federal Court Rules 2011 rr 36.03, 36.05 Migration Regulations 1994 (Cth) Sch 2 cl 573.223 Cases cited: Islam v Minister for Immigration and Border Protection and Anor [2015] FCCA 3024 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 Date of hearing: 11 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 39 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Nicole Maddocks, DLA Piper Australia ORDERS NSD 1626 of 2015 BETWEEN: MD RAKIBUL ISLAM Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MARKOVIC J DATE OF ORDER: 13 MAY 2016 THE COURT ORDERS THAT: 1. The application for an extension of time filed on 10 December 2015 is dismissed. 2. The applicant to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MARKOVIC J: 1 On 25 January 2013 the applicant, who is a citizen of Bangladesh, applied for a student (Temporary) (Class TU) Visa (the Visa). On 15 July 2013 a delegate of the first respondent (the Minister) refused the application for the Visa. 2 On 5 August 2013 the applicant applied to the then Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) for review of the delegate's decision. On 8 September 2014 the Tribunal affirmed the delegate's decision. 3 On 13 October 2014, the applicant applied to the Federal Circuit Court of Australia (Federal Circuit Court) for review of the Tribunal's decision. On 30 January 2015, orders were made by consent remitting the matter to the Tribunal in light of Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169. 4 On 13 April 2015, the applicant appeared before the Tribunal, differently constituted, to give evidence and present arguments and on 8 May 2015 that Tribunal affirmed the delegate's decision. 5 The applicant then applied to the Federal Circuit Court for review of the Tribunal's decision. On 10 November 2015, the Federal Circuit Court made orders and gave judgment dismissing the application: Islam v Minister for Immigration and Border Protection and Anor [2015] FCCA 3024 (Islam). 6 The applicant now seeks an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (the Rules) within which to file a notice of appeal of the orders made and judgment given on 10 November 2015 by the Federal Circuit Court dismissing his application for review of the Tribunal's decision. the Tribunal's decision 7 As a preliminary matter, the Tribunal noted that at the time the Visa application was lodged the Student (Temporary) (Class TU) Visa contained a number of subclasses and that, generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570-575); for certain applications made on or after 24 March 2012, whether the applicant is an "eligible higher degree student" (Subclass 573-574) or "eligible university exchange student" or "eligible non-award student" (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580). 8 The Tribunal found that, in light of the applicant's proposed course of study, the relevant subclass was Subclass 573 and that the issue before it was whether the applicant meets the time of decision criterion in cl 573.223 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations). In that regard, cl 573.223(1)(a) relevantly provides: (1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because: (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to: (i) the applicant's circumstances; and (ii) the applicant's immigration history; and (iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and (iv) any other relevant matter; and … 9 The Tribunal noted that in considering whether the applicant satisfies cl 573.223(1)(a) it must have regard to Direction No. 53 "Assessing the genuine temporary entrant criterion for Student Visa applications" made under s 499 of Migration Act 1958 (Cth) (the Act). The Tribunal noted that the Direction requires it to have regard to a number of specified factors and set those factors out at [24] of its decision record. 10 The Tribunal invited the applicant to appear before it and give evidence and present arguments. At the hearing, the Tribunal informed the applicant that the "issue of genuine temporary entrant had become apparent on the evidence before it" and referred to Direction No. 53. 11 The Tribunal questioned the applicant in relation to "relevant matters" and summarised the evidence given by the applicant: (1) the applicant was not studying and had not studied since he made the Visa application in 2013. The applicant said he had not studied because he had completed a Diploma of Business Management in 2010 but was unable to obtain evidence of this from the course provider to apply for exemptions from further study. The Tribunal told the applicant that it had difficulty accepting that the applicant was prevented from studying from 2013 onwards because he was unable to obtain evidence of a course completed in 2010; (2) the applicant had applied for an "offer letter" from the Holmes Institute but was unaware when the course started and had not paid any fees. The applicant offered to provide the offer letter from the Holmes Institute after the hearing but the Tribunal said it would not delay the hearing as many other issues had been raised which would not be settled by the "Letter of Offer"; (3) the applicant was working 18 to 20 hours per week at an IGA supermarket; (4) the Tribunal raised its concern that it was difficult to accept that the applicant was a genuine temporary entrant for the purpose of study given the applicant had not studied since 2013, was not studying at the time of the hearing, was not subject to an offer of enrolment and had continued to work since 2013 which indicated that this was his interest in remaining in Australia; (5) in relation to his financial situation the applicant said his parents send him $2,000 per month through his uncle who lives in Greenacre and who then paid him cash. There was no evidence to support this claim; (6) the applicant had not left Australia since he first entered on 1 December 2009 which was of concern. He said that he wanted to finish his study before returning home; (7) despite earlier written submissions which referred to genocide, the applicant initially said that he did not have concerns about his own safety in returning to Bangladesh and that his father was a member of the opposition political party. However, when asked to clarify his evidence, the applicant said he may have some difficulties; (8) the applicant had strong incentives to remain in Australia: he had an extended family here, employment, was living with other students and had limited incentive to return to Bangladesh. The applicant said this was not true and that he wanted to complete his studies and return to Bangladesh. 12 The Tribunal found that the applicant did not satisfy the genuine temporary entrant criteria in cl 573.223(1)(a) of Sch 2 to the Regulations because: (1) the applicant has an immigration history of concern. He entered Australia on 1 December 2009 and had not departed since that time. The applicant's proposed course of study would take three years and extend the applicant's stay for that period. The applicant's immigration history indicates that he views Australia as his long term home and he has incentive to remain here; (2) in terms of the applicant's potential circumstances and ties to Australia, the applicant has been in Australia continuously for more than five years, has extended family in Australia, is in paid employment and lives with other students from Bangladesh. On the basis of that evidence the applicant has a strong incentive to remain in Australia; (3) despite the applicant's submission that he would return to Bangladesh because his family is there, his immigration history indicates that he does not have incentive to return as he has not done so for more than five years. In addition, the applicant provided confusing and contradictory oral evidence about whether or not he would return, stating that his father was a member of an opposition political party and he may be at risk but that he was willing to return. Overall, the Tribunal found the evidence indicated that the applicant does not wish to return to Bangladesh; (4) in terms of the potential value of the proposed course to the applicant's future, the Tribunal found that the applicant was not studying at the time of the hearing, was not subject to an offer of enrolment (although it accepted that the applicant had applied for an offer letter from the Holmes Institute) and had not studied since 2013. The applicant had previously enrolled in a bachelor of business course but had failed to complete that course. The Tribunal accepted the applicant's evidence that he completed an English course after the Visa was declined but found that he had not completed any study since. Overall, the Tribunal found that this evidence indicated that the applicant will not complete the proposed course of study and therefore it will not add value to the applicant's future; and (5) the applicant's circumstances indicate that he is using the student visa system to prolong his stay in Australia. 13 The Tribunal affirmed the decision under review not to grant the applicant the Visa because the applicant did not meet a criterion for the grant of the Visa namely, cl 573.223(1)(a). the proceedings in the Federal Circuit Court 14 The applicant sought judicial review of the Tribunal's decision. The grounds raised by the applicant are set out at [4] of Islam: The grounds of the application are as follows: "1. The Tribunal denied the Applicant procedural fairness and failed to act in a way that was fair and just as required by s 357A of the Migration Act 1958 ("the Act"). Particulars The Tribunal surprised the Applicant at the hearing by raising at the hearing the issue of whether he satisfied the criterion of being a 'genuine temporary entrant' which had not been previously raised as an issue by the Minister's delegate or by a previously constituted Tribunal. 2. The Tribunal failed to provide the Applicant with a real opportunity to give evidence and present arguments relating to the issues arising in relation to the review, as required by s 360 of the Act. Particulars By surprising the Applicant with an issue that had never been raised previously, and which he had no reason to believe he would be required to address at the hearing, and denying the Applicant further time or the option of an adjournment to prepare arguments and / or evidence in relation to that issue, the Tribunal denied the Applicant the full benefit of the type of hearing contemplated by s 360." 15 At the commencement of the hearing before the primary judge the applicant sought an adjournment to obtain legal representation. No prior notice had been given of the application for an adjournment and no evidence was filed in relation to the steps taken by the applicant to attempt to secure legal representation. The Minister opposed the application for adjournment. 16 The primary judge delivered an ex tempore judgment dismissing the application. He found that: (1) it was clear from the Tribunal's reasons at [6] to [19] that it raised with the applicant the issue of whether he was a genuine temporary applicant and its concerns given his absence of enrolment in a course for some period of time: Islam at [7]; (2) during the Tribunal hearing the applicant offered to provide a letter of offer from the Holmes Institute. However, the Tribunal indicated it would not delay the matter just because of a desire to produce a letter of offer. At the end of the hearing the applicant was invited to make any further submissions but declined to do so. No adjournment was sought by the applicant before the Tribunal: Islam at [8]; (3) consistent with the requirements of s 499 of the Act, the Tribunal had regard to Direction No. 53 and set out its reasons why it found that the applicant was not a genuine temporary entrant: Islam at [9]. (4) in relation to ground 1, it is clear the applicant was invited to a hearing consistent with the statutory regime, and it is apparent on the face of the reasons that the Tribunal raised the issue concerning whether the applicant was a genuine temporary entrant: Islam at [10]-[11]; (5) ground 2 appeared to be a restatement of the same issue raised by ground 1. The applicant was invited to and did attend a hearing and gave evidence and presented arguments, consistent with the statutory regime. There was nothing identified by the applicant to support the proposition that the hearing before the Tribunal was not fair and just. The adverse findings by the Tribunal cannot be said to "lack an evident and intelligible justification": Islam at [12]-[13]; (6) the application for adjournment was refused. The primary judge found that there would be no utility in granting an adjournment in the circumstances of the matter. In doing so, the primary judge took into account the orders made by the Federal Circuit Court on 14 July 2015 providing an opportunity to the applicant for the filing of an amended application, affidavit and submissions and that no such documents were filed: Islam at [14]. the application for an extension of time 17 The applicant now seeks an extension of time to file a notice of appeal from the orders made and judgment given by the primary judge on 10 November 2015. He relies on an affidavit affirmed by him on 10 December 2015. The applicant has not filed any submissions in support of his application. Application for an adjournment 18 At the outset of the hearing the applicant applied for an adjournment of the hearing. No previous notice had been given to the Minister of that application and the applicant did not provide any evidence in support of it. From the bar table the applicant submitted that he would like time to earn money so that he could engage a lawyer. When asked why he had not done that to date, the applicant said that he has no visa and cannot work. When then asked how he would be able to work now, should an adjournment be granted, the applicant said that he was borrowing the money from a friend. 19 The solicitor for the Minster submitted that the Minister had no prior notice of the application for an adjournment, that there was no evidence of the applicant's efforts to secure legal representation and that, given the merits of the proposed appeal, the application for an adjournment was opposed. 20 I declined to grant an adjournment of the hearing of the application for an extension of time. The application was filed on 10 December 2015, five months prior to the hearing date allocated to it, giving the applicant ample opportunity to consider and secure legal representation. There was no evidence before the Court of the efforts, if any, made by the applicant to obtain legal representation and nothing in that regard was forthcoming from the applicant. The submissions that the applicant did make about how he would raise the funds to enable him to retain a lawyer were contradictory. An application for an adjournment of the hearing before the primary judge was made on the same basis and denied. It is not apparent that since that time the applicant has taken any steps to secure legal representation. Legal principles 21 Rule 36.03 of the Rules requires that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The primary judge made his orders dismissing the applicant's application filed in the Federal Circuit Court on 10 November 2015. Accordingly, the last day on which a notice of appeal could be filed was 1 December 2015. The application for an extension of time was filed on 10 December 2015, nine days late. 22 The factors to which the Court is to have regard in determining an application for an extension of time within which to file a notice of appeal are well understood. In SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91, relying on Hunter Valley Developments Pty Ltd v Cohen [1984] 3 FCR 344, Murphy J set out those factors at [19] as follows: Accordingly, the application for an extension of time requires consideration of the following factors; (a) satisfaction that it is proper to do so, noting that the prescribed period is not to be ignored. This usually requires an acceptable reason for the delay; (b) any prejudice to the respondents, noting that the mere absence of prejudice is not enough to justify the grant of an extension; (c) the merits of the appeal. 23 The Minister submits that he can point to no prejudice should the extension of time be granted. I accept that submission and, in light of it, will not deal further with that factor. 24 I will consider the remaining two factors in turn, in the context of the present application. Explanation for the delay 25 In his affidavit in support of his application at [7] the applicant says: My appeal is out of time limit. Because was sick. I attach medical certificate for your kind consideration. 26 Attached to the affidavit is a medical certificate from Rockdale Medical Centre which certifies that the signatory, whose identity is not disclosed but who may be one of the two doctors mentioned on the letterhead, examined the applicant on 9 December 2015 and provides an opinion that he "is/was suffering from migraine" and that he "will be/was unfit for work/school" from 7 December 2015 to 9 December 2015 inclusive. 27 The medical certificate post dates the end of the 21 day period in which the applicant was required to file any notice of appeal by the Rules. At its highest, it explains the delay from 7 December 2015 to 9 December 2015 inclusive. However, as submitted by the Minister, there is no explanation of why the applicant was unable to commence the appeal proceedings within time, by 1 December 2015, nor is there any explanation of the delay from 2 December to 6 December 2015. 28 In the circumstances, there is, in my opinion, no acceptable explanation for the delay provided by the applicant. Merits of the appeal 29 The proposed grounds of appeal in the draft notice of appeal are: 1. I am not satisfied with the judgment of the Federal Circuit Court. 2. The decision deprived me of the natural justice. 3. I will provide more grounds later. 30 In his affidavit in support of his application the applicant includes the following: … 2. The Federal Circuit Court judge dismissed the appellant's judicial Review application SYG1517/2015 without giving any reasonable grounds. 4. There were arguable grounds to the judicial review application, but unfortunately the federal Circuit Court Judge Street failed takes into account all relevant grounds when making decision. 5. The appellant believes that the Federal Circuit breached the rules of natural justice and procedural fairness when making its decision. 6. The Federal Circuit Court Judge Street failed to identify the error made by the Administrative Appeals Tribunal. … 31 When invited to make submissions in relation to his application for an extension of time, the applicant referred to a finding by the Minister that a document that he had provided in relation to his financial status was bogus, that the document was not in fact bogus and that he had not been able to provide any further document. As submitted by the solicitor for the Minister, that issue related to the application of Public Interest Criterion 4020 and the decision of the first Tribunal which was the subject of an application for judicial review to the Federal Circuit Court and which was, in turn, remitted by consent to the Tribunal, differently constituted. 32 The decision of the Tribunal that was considered by the primary judge in Islam was that of the Tribunal differently constituted. The issue of the application of Public Interest Criterion 4020 did not arise. Rather the issue for the Tribunal was whether the applicant met the requirements of cl 573.223(1)(a) of the Regulations. On that basis the submission made by the applicant does not go to the grounds of appeal raised in the draft notice of appeal. No further submissions were made. 33 Ground 1 of the draft notice of appeal simply expresses disagreement with the primary judge's judgment. It is not a proper ground of appeal. Similarly ground 3 does not raise any arguable ground of appeal. It foreshadows the provision of further grounds. No attempt has been made to raise further grounds, for which leave would be required. The only ground in the draft notice of appeal that raises a proper ground of appeal is ground 2 by which the applicant alleges that the primary judge denied him procedural fairness. That ground is repeated by the applicant in his affidavit. The applicant also alleges in his affidavit that the primary judge erred by dismissing the applicant's judicial review application without giving any reasonable grounds, by failing to take into account all relevant grounds when making his decision and by not identifying the error made by the Tribunal. 34 In relation to the allegation of denial of procedural fairness: (1) prior to the hearing before the primary judge, the applicant was provided with an opportunity to amend his application, file further affidavit evidence and provide written submissions to the Federal Circuit Court. He did not do so; (2) at the hearing, the applicant did not make any oral submissions in support of his application. At [16] the primary judge notes that "[n]othing was said by the applicant from the bar table to identify any jurisdictional error by the Tribunal"; and (3) the primary judge considered the applicant's adjournment application made at the commencement of the hearing. The applicant did not at the time of the hearing and, has not since, provided any evidence to substantiate his claim that he attempted to obtain new legal representation prior to the Federal Circuit Court hearing on 10 November 2015. The primary judge considered the applicant's application for an adjournment of the hearing and provided reasons for rejecting it based on the state of the evidence and the submissions that were made before him. 35 Given the way in which the matter proceeded before the primary judge, it cannot be said that the applicant was denied procedural fairness. 36 The allegations that the primary judge dismissed the applicant's judicial review application without giving "any reasonable grounds" or by failing to take into account all relevant grounds have no merit. To the extent they do more than express disagreement with the findings of the primary judge, it is clear from the judgment in Islam that the primary judge considered each of the grounds raised in the applicant's judicial review application and gave cogent reasons for rejecting those grounds. 37 The unparticularised allegation that the primary judge fell into error by not identifying that the Tribunal fell into error can equally not be sustained. As I have already observed, the primary judge considered the applicant's grounds of review, which as he identified, in substance, raised the same issue, namely that the Tribunal failed to give the applicant a proper opportunity to be heard. He properly identified that those grounds could not be made out. 38 It follows that in my opinion the proposed appeal has no merit. conclusion 39 In light of my findings in relation to the absence of an acceptable explanation for the delay and the lack of merit in the proposed appeal, I will make an order dismissing the application for an extension of time and order that the applicant pay the Minister's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate: Dated: 13 May 2016