Yama v Minister for Immigration and Citizenship [2007] FCA 1459 (20 August 2007)

RAJNI KANTH YAMA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL
NSD 641 OF 2007

SIOPIS J
20 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 641 OF 2007

BETWEEN:	RAJNI KANTH YAMA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	20 AUGUST 2007
WHERE MADE:	SYDNEY

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 641 OF 2007

BETWEEN:	RAJNI KANTH YAMA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE:	20 AUGUST 2007
PLACE:	SYDNEY

1 The applicant is a citizen of India who was granted a temporary student visa on 29 October 2001. Between 2001 and 2002, he studied at the International Institute of Business Technology in Sydney (the Institute). The student visa was subject to Condition 8202. The student visa was due to expire on 8 November 2003. On 7 November 2003, the applicant applied for a further student visa. His application was refused by a delegate of the first respondent on 14 January 2005. The applicant applied to the Migration Review Tribunal (the Tribunal) to review the delegate’s decision. On 14 September 2005, the Tribunal affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. On 15 March 2007, that application for judicial review was dismissed by the Federal Magistrate.

2 The applicant now seeks an extension of time to appeal against the Federal Magistrate’s decision. The applicant filed his application for an extension of time to file and serve his notice of appeal on 13 April 2007, which was after the expiry of the 21 day period within which he should have appealed. The applicant has filed an affidavit in support of his application for an extension of time. In the affidavit he says:

3 The applicant also enclosed a draft notice of appeal which stated the following grounds:

4 The matter was listed for hearing today at 2.15 pm. It is now just past 2.30 pm, and the applicant has not appeared. The first respondent has provided me with evidence that the applicant was informed by letter dated 12 July 2007 of the fact that this hearing would take place today at 2.15 pm. A map was provided to assist the applicant in locating the Court. I am informed that the matter was called outside the courtroom and also on the Registry level. The applicant has not appeared. The Court has power pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) to make an order that an appeal to the Court be dismissed for a "failure of the appellant to attend a hearing relating to the appeal". In my view, the Court, therefore, has the power to dismiss an application for an extension of time within which to appeal, because it relates to an appeal (SZDJA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1499). I exercise the power pursuant to that provision to dismiss the applicant’s application.

5 However, in any event, I will consider the merits of the application. The Court has power under O 52 r 2 of the Federal Court Rules to extend time for the filing of an appeal, where there is a "special reason". In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said of the expression "special reasons":

6 In the case of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, the Full Court set out some of the matters which should be taken into account. These factors include the explanation for delay, any prejudice which might be suffered by the respondent in defending the proceedings caused by the delay, and the merits of the substantive appeal. In this case, the delay is not long and is adequately explained given the fact that the applicant is self-represented. This factor would not weigh against an extension of time. Likewise the prejudice to the respondent in defending the proceedings caused by the delay is not a matter which would weigh against the extension of time.

7 This leaves the question of the merits of the appeal. The delegate decided on 14 January 2005 not to grant the student visa, having come to the view that there had not been substantial compliance with the visa conditions on which the previous visa was issued. The visa condition in question was Condition 8202 which requires that the student, in the case where his education provider keeps attendance records, attends for at least 80% of the contact hours scheduled. The evidence before the delegate was that the applicant’s attendance in the last three terms of the academic year 2002 was 80%, 60% and 36% of the scheduled contact hours. The question of whether there had been "substantial compliance" with the previous visa conditions was a relevant factor for the delegate to consider in deciding whether to grant the visa.

8 The applicant then sought review of the delegate’s decision by the Tribunal. The Tribunal sent a letter on 22 April 2005 asking the Institute to provide documents comprising the applicant’s attendance records, timetable, and academic calendar for terms 3 and 4 of the academic year 2002, being the two terms in respect of which the attendance records showed a 60% and 36% attendance rate. The Institute provided those documents to the Tribunal.

9 The Tribunal invited the applicant to attend a hearing on 7 July 2005. The applicant did not attend the Tribunal hearing on that date.

10 The Tribunal subsequently sent a letter to the applicant inviting him to comment on the evidence which showed that, on the face of it, he appeared not to have complied with Condition 8202 in respect of his attendance for terms 3 and 4 of 2002. The applicant, through his migration agent, made a very detailed response to the Tribunal in a seven page letter, which also annexed the records which were in issue.

On 14 September 2005, the Tribunal handed down its decision; in effect, giving the benefit of the doubt to the applicant in respect of a number of the matters which he had raised in his letter and determining that the attendance record should be reassessed. The Tribunal found that in respect of term 3 of 2002, the attendance rate should be treated as being 71.4% of the scheduled contact hours. In relation to term 4 of 2002, the Tribunal said the applicant should be treated as having attended 53.3% of the scheduled contact hours. The Tribunal found that notwithstanding these adjustments, the applicant had breached the relevant visa condition in respect of the two terms, that the breaches were significant, and that there had not, therefore, been "substantial compliance" with the visa conditions of the expired student visa. Accordingly, the Tribunal affirmed the decision of the delegate.

12 The applicant’s review application was heard in the Federal Magistrate’s Court on 15 March 2007. The Federal Magistrate found that the Tribunal had properly addressed the relevant questions, and rejected the applicant’s contention that the Tribunal had erred in relation to the application of the concept of "contact hours". Further, the Federal Magistrate found that the Tribunal had not failed to accord the applicant procedural fairness. The Federal Magistrate concluded that there was no jurisdictional error in the manner in which the Tribunal had dealt with the matter.

13 As already mentioned, the applicant’s draft notice of appeal is in the following terms:

14 Neither of those two grounds raises any identifiable error on the part of the Federal Magistrate. In my view, the prospects of success, on the basis of the draft notice of appeal, are low. In weighing this factor with the factors referred to in [6] above, I am of the view, that I should not exercise the discretion in favour of granting an extension of time to file and serve a notice of appeal.

15 In those circumstances, I dismiss the applicant’s application for an extension of time to file and serve a notice of appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Counsel for the Applicant:	The applicant did not appear.

Counsel for the First Respondent:	A Mansour

Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	20 August 2007

Date of Judgment:	20 August 2007