Alzoubi v Minister for Immigration & Anor [2009] FMCA 689 (31 July 2009)

Last Updated: 4 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALZOUBI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 689

MIGRATION – Visa – Student (Temporary) (Class TU) visa. PRACTICE & PROCEDURE – Extension of time – application for extension of time – delay.

Migration Act 1958 (Cth), ss.351, 417, 476, 477 Migration Legislation Amendment Act (No.1) 2009 (Cth) Sch.2 s.7 Migration Regulations 1994 (Cth) reg.572.223(2)(a)(i)(A), Sch.5A

SZGLK v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 94 ALD 86; [2006] FCA 1744 Applicants M160 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 219 ALR 140; [2005] FCA 195 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 91 ALD 790; [2006] FCA 316 Vu v Minister for Immigration and Citizenship [2008] FCA 59 SZJTK v Minister for Immigration & Anor [2009] FMCA 543 Marupudi v Minister for Immigration & Anor [2009] FMCA 592 Vu v Minister for Immigration & Anor [2007] FMCA 800 Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 Bhattarai v Minister for Immigration [2008] FMCA 1709 Kamal v Minister for Immigration [2009] FMCA 238

Applicant:

ADEL ALI ALZOUBI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1292 of 2009

Judgment of:

Scarlett FM

Hearing date:

14 July 2009

Date of Last Submission:

14 July 2009

Delivered at:

Sydney

Delivered on:

31 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Reynolds

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Solicitor for the Respondents:

Ms Johnson

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The time for making the application for review of the decision of the Migration Review Tribunal made on 31 October 2008 is extended under section 477 of the Migration Act to 29 May 2009.

(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1292 of 2009

ADEL ALI ALZOUBI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant applies for an extension of time to make an application to apply for judicial review of a decision of the Migration Review Tribunal for review of a decision made on 21st October 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Student (Temporary) (Class TU) visa.

Background

2. The relevant details are set out in an affidavit by David Lee Bitel, the Applicant’s solicitor, affirmed on 28th May 2009. The Tribunal signed its decision on 21st October 2008. The Applicant received a copy of the decision on 31st October 2008.
3. On 27th November 2008 the Applicant’s then migration agent wrote to the Minister for Immigration and Citizenship, making representations on his behalf for the Minister to exercise his discretion under the provisions of s.351 of the Migration Act. The Branch Manager of the Ministerial Intervention Unit replied by letter dated 15th April 2009, advising that the Minister had personally considered the Applicant’s case and had decided that it would not be in the public interest to intervene. Thus, the Minister did not exercise his power under s.351.
4. The Applicant gave evidence that, after having received the refusal letter, he sought the assistance of his present solicitors. His application and affidavit in support were filed at the Court on 29th May 2009.

The issue

5. Section 477 of the Migration Act sets a time limit on applications to the Federal Magistrates Court under s.476 of the Act. It provides that:
   1. An application must be made within 35 days of the date of the migration decision (s.477(1)).
   2. The Court may extend that time if an application has been made in writing and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order (s.477(2)).
6. In this case, the date of the Tribunal decision was 21st October 2008. However, Schedule 2 of the Migration Legislation Amendment Act (No.1) 2009 provides in s.7(2):
   • If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.
7. The date of commencement of Schedules 1 to 3 of the Act was 15th March 2009.
8. Thus, the deemed date of the Tribunal decision is 15th March 2009. It is common ground that the application in this matter is 40 days outside the time limit.

Applicant’s submissions

9. Mr Reynolds of counsel, who appeared for the Applicant, submitted that the fact that an applicant seeks to persuade the Minister to exercise his discretion under s.351 of the Migration Act does not mean that the applicant has accepted the validity of the Tribunal decision. In this case, the Applicant applied to the Minister on the advice of his then migration agent and a significant amount of the time between 15 March and the date the application was filed at the Court was taken up in waiting for the Minister to reply.
10. He submitted that there was divergent Federal Court authority on the question of whether pursuing an application under s.351 or s.417 of the Act in the appropriate case was a satisfactory explanation for a delay in seeking judicial review of the decision, but that the correct and preferable view was that it is a satisfactory explanation.
11. In particular, he relied on SZGLK v Minister for Immigration and Multicultural and Indigenous Affairs[1] per Rares J at [35]-[47], Applicants M160 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs[2] per Finkelstein J at [7]-[14], and Gararth v Minister for Immigration and Multicultural and Indigenous Affairs[3] per Wilcox J at [64].
12. Further, he submitted that the point that the Applicant seeks to raise in the substantive application is of merit. The applicant claims that the Migration Review Tribunal fell into error when it found that the applicant did not satisfy regulation 572.223(2)(a)(i)(A) of the Migration Regulations 1994, which required the Applicant to comply with Schedule 5A of the Regulations. The argument is that an IELTS test taken between the date of the visa application and the date of decision is capable of satisfying those provisions.

First respondent’s submissions

13. For the First Respondent, the Minister for Immigration and Citizenship, Ms Johnson submitted that the preferable view to be followed is that the Applicant’s approach to the Minister under s.351 of the Act does not provide an acceptable explanation for failing to apply to the Court in time. To that end, she relied on Vu v Minister for Immigration and Citizenship[4]at [29] and [32], SZJTK v Minister for Immigration & Anor[5] and Marupudi v Minister for Immigration & Anor[6] .
14. Ms Johnson submitted that it was material that the Applicant claimed that he did not receive the Minister’s letter for a month after it was written and it took another 14 days to file an application for judicial review. Very properly, she told the Court that it was not intended to argue that there was any prejudice to the Minister in allowing the extension of time.

Conclusions

15. Whilst there is divergent authority, I note that there are several decisions of the Full Court of the Federal Court to the effect that an approach to the Minister under s.351 of the Act, or s.417 in the case of decisions of the Refugee Review Tribunal, is not an acceptable explanation for an Applicant’s failure to apply for judicial review or to appeal within time.
16. In Vu v Minister for Immigration and Citizenship[7]the Full Court dismissed an application for extension of time to appeal from a decision that I had made on 31st May 2007 (Vu v Minister for Immigration & Anor (No 2)[8]. In that case, I declined to grant relief in the exercise of the Court’s discretion because of a delay by the Applicant of more than two years. Part of the reason for the delay was the decision of the Applicant to seek the exercise of the Minister’s discretion under s.351 of the Act. I held at [18] that this was “an explanation of sorts” for 53 weeks of the delay. However, there was no explanation at all for two other periods of delay, from 22nd September to 11th December 2003, and from 16th December 2004 until
    27th October 2005.
17. The Applicant sought to appeal out of time. However, his application for an extension of time was filed on 2nd October 2007, about 14 weeks after the expiration of the 21 day time for the appeal to be filed. The Applicant had then made a request to the Minister under s.351. This request was made on 21st June 2007, the last day upon which he could have lodged an appeal
18. In the Full Court, Jessup J, with whom Gyles and Besanko JJ agreed, found that the Applicant’s approach to the Minister did not provide an acceptable explanation for his failure to lodge an appeal within time (at [29]). Also, at [32], his Honour considered the substance of the Applicant’s proposed appeal. He said, of the decision at first instance:
    • The applicant did in fact receive the Tribunal’s decision in the days following 15 September 2003. With full knowledge of the terms of that decision, he delayed by more than two years before challenging it on jurisdictional grounds. In this respect, I am disposed to think that the Federal Magistrate was more than normally forgiving in his holding that the applicant’s recourse to s.351 of the Act provided “an explanation of sorts” for his lengthy delay.
19. In Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[9] the Full Court considered the case of an applicant for an extension of time to appeal, who commenced proceedings in the High Court on 27th May 2002 in respect of a decision of the Refugee Review Tribunal dated 5th November 1997. He had made several applications for the exercise of Ministerial discretion under s.417. Their Honours (Heerey, Dowsett and Bennett JJ) held at [7]:
    • The appellant offers no acceptable explanation for the delay. His deliberate attempts to avoid contact with migration authorities can hardly constitute such an explanation. There is no suggestion that he sought legal advice at any time prior to his transfer to Villawood in late 2001. Further, he chose to make numerous applications for intervention by the Minister pursuant to s.417. Even making allowance for the disabilities under which he, as a non-Australian, must labour, the delay is unexplained in the relevant sense.
20. In my view it is clear that the view to be followed is that expressed by the Full Court of the Federal Court in Vu and Applicant M70, which is that an application for Ministerial intervention under the provisions of ss.351 or 417 is not an acceptable explanation for a delay in seeking judicial review.
21. Whilst counsel for the Applicant has drawn the Court’s attention to the decision of Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs[10], I am satisfied that the decisions in Vu and Applicant M70 must be followed.
22. In M160/2003, one reason for the delay, but not the whole reason, is that the applicants applied to the Minister under s.417. Finkelstein J said at [7]:
    • It is a well-settled principle that judicial review is a proceeding of last resort. If there exists an alternative procedure, such as an appeal or another administrative process, by which the substantive issue in dispute can be resolved, that procedure should ordinarily be taken in preference to judicial review.
23. With respect, the Full Court decision in Vu, which is more recent, would indicate that this statement of general principle no longer applies in respect of the particular area of judicial review of migration decisions, at least as far as the Federal Magistrates Court is concerned. More recent still is the amendment to s.477 of the Migration Act which came into force on 15th March 2009. Sub-section 477(1) now specifically provides:
    • An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
24. The Applicant has not provided a satisfactory explanation for the delay in applying to this Court.
25. That is not the end of the matter, however. Sub-section 477(2) allows the Court to extend that 35 period if satisfied that it is necessary in the interests of the administration of justice to make the order.
26. In Re Commonwealth of Australia; Ex parte Marks[11] at 495-6, McHugh J said:
    • [15] An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.
27. In this case, the history of the matter is that the Tribunal made its decision on 21st October 2008. There is evidence that the Applicant received a copy of the decision on 31st October 2008. He did not commence proceedings within the time limit provided by the earlier version of s.477 of the Act. Instead, he took the advice of his then migration agent and made an application to the Minister under s.351 on 27th November 2008. The Minister’s refusal letter is dated 15th April 2009. The Applicant consulted his present solicitors on 15th May 2009 and his application was filed at the Court on 29th May 2009.
28. There is no suggestion that the Applicant made any effort to avoid the Department. Instead, he sought advice about the decision and took the step of applying to the Minister. Clearly, this advice was not beneficial to him, as his application was refused and he was then out of time to seek judicial review. However, this is not a case where the Applicant “sat on his hands” and did not take any steps to seek redress.
29. The conduct of the respondents does not show any matter for criticism.
30. The litigation is about a Student visa and has a direct bearing on whether the application can remain in Australia and continue his studies.
31. In considering the consequences for the parties of a grant or a refusal of the extension of time, it is relevant that it is not argued that there will be any prejudice to the Minister if an extension is granted. If an extension is refused, the Applicant will be unable to argue the substantive merits of his case.
32. The substantive case could be heard in the near future, within two or three months.
33. The merits of the Applicant’s substantive case should also be considered. There are several decisions of this Court which would not assist the applicant. However, the decisions of Smith FM in Bhattarai v Minister for Immigration[12] at [9] and, more recently, Kamal v Minister for Immigration[13] offer some support to the Applicant’s argument. The Minister has appealed against the decision in Kamal and that appeal is due to be heard by the Full Court in the August appeal sittings. Three other appeals have been adjourned pending the decision of the Full Court in Kamal.
34. It is not for this Court to speculate on the outcome of the appeal in Kamal. All that can be said is that the point sought to be made by the Applicant in the present case is arguable.
35. What remains to be considered is the length of the delay. Whether the delay is 40 days under the transitional provisions or whether it is six months, counting back to the time when the Applicant should have commenced proceedings after he was notified of the Tribunal decision, it is not an unconscionably long period.
36. In all the circumstances, I am disposed to allow the extension. I am satisfied that it is in the interests of the administration of justice to do so. However, in my view this is a matter where the Applicant should bear the Minister’s costs.
    

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V. Lee

Date: 30 July 2009

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[1] (2006) 94 ALD 86; [2006] FCA 1744
[2] (2005) 219 ALR 140; [2005] FCA 195
[3] (2006) 91 ALD 790; [2006] FCA 316
[4] [2008] FCAFC 59
[5] [2009] FMCA 543
[6] [2009] FMCA 592
[7] supra
[8] [2007] FMCA 800
[9] [2004] FCAFC 132
[10] supra
[11] (2000) 177 ALR 491; [2000] HCA 67
[12] [2008] FMCA 1709
[13] [2009] FMCA 238