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Kaur v Minister for Immigration and Border Protection [2018] FCA 427 (16 March 2018)

Last Updated: 29 March 2018

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2018] FCA 427

Appeal from:	Application for extension of time: Kaur v Minister for Immigration & Anor  [2017] FCCA 964
File number:	NSD 793 of 2017
Judge:	WIGNEY J
Date of judgment:	16 March 2018
Catchwords:	PRACTICE AND PROCEDURE – application for extension of time to file appeal from judgment of Federal Circuit Court – whether extension of time should be granted – whether grounds of appeal had sufficient merit to warrant extension of time – whether adequate explanation for delay MIGRATION – judicial review – Partner (Class UK) visa – where application for judicial review dismissed by primary judge – whether appellant was afforded procedural fairness – appearance at Federal Circuit Court hearing by telephone – whether primary judge erred in finding that Tribunal had complied with the requirements in Minister for Immigration and Border Protection v Waensila [2016] FCAFC 32; (2016) 241 FCR 121 in respect of “compelling circumstances” – PIC 4020
Legislation:	Federal Court of Australia Act 1976 (Cth), s 43 Migration Act 1958 (Cth), ss 359A, 359AA Federal Court Rules 2011 (Cth), r 36.03 Migration Regulations 1994 (Cth), cl 820.211 of Schedule 2, criteria 3001, 3003 and 3004 of Schedule 3, criterion 4020 of Schedule 4
Cases cited:	Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319 Hunter Valley Developments Proprietary Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; (2017) 252 FCR 31 Waensila v The Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121
Date of hearing:	16 March 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	44
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms E Cheesman of Clayton Utz
Counsel for the Second Respondent:	The Second Respondent made a submitting appearance, save as to costs

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s application for an extension of time filed 25 May 2017 be dismissed.
2. The applicant pay the first respondent’s costs of $2,500.

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)

WIGNEY J:

1. This is an application for an extension of time in which to file an appeal from a judgment of the Federal Circuit Court of Australia. In that judgment, the primary judge dismissed Ms Paramjeet Kaur’s application for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of the Minister for Immigration and Border Protection to refuse to grant Ms Kaur a Partner (Temporary) (Class UK) visa.
2. For the reasons that follow, Ms Kaur’s application for an extension of time must be dismissed.

BACKGROUND

3. Ms Kaur is a citizen of India. She first arrived in Australia on 12 April 2009 as the holder of a student visa. That substantive visa ceased on 21 September 2011. Ms Kaur applied for the partner visa that is the subject of this application on 1 May 2014. That is almost two and a half years after the expiry of her student visa.
4. A visa applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Migration Regulations 1994 (Cth). Relevant to the present matter, a visa applicant must satisfy Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d) of Schedule 2 to the Regulations. In order to satisfy criterion 3001, the visa application must have been lodged within 28 days of the relevant day. The “relevant day” is defined in criterion 3001(2), as follows:

3001
(2) For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a) if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa – 1 September 1994; or
(b) if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa – the day when the applicant last became an illegal entrant; or
(c) if the applicant:

(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii) entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii) the last day when the applicant held a substantive or criminal justice visa; or
(iv) the day when the applicant last entered Australia unlawfully; or

(d) if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation – the later of:

(i) the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

5. It may be observed that Ms Kaur’s application for the partner visa was lodged well outside 28 days of the relevant day that applied in her case. A delegate of the Minister refused to grant Ms Kaur the partner visa on the basis that there were no compelling reasons for not applying the Schedule 3 criteria. The delegate found, therefore, that Ms Kaur did not satisfy cl 820.211(2)(d) of Schedule 2 to the Regulations, an essential criterion for the grant of the visa.
6. Ms Kaur applied to the Tribunal for review of the delegate’s decision.

TRIBUNAL’S REVIEW AND DECISION

7. On 10 March 2015, the Tribunal wrote to Ms Kaur and invited her to give evidence and present arguments at a hearing. It would appear that the Tribunal also requested Ms Kaur to provide to it any information she wished to rely on to justify not applying the Schedule 3 criteria.
8. On 21 April 2015, Ms Kaur provided the Tribunal with a number of documents, including: a report by “Psychology Pathways” dated 10 April 2015; a submission by Ms Kaur’s migration agent; translated letters purporting to be from Ms Kaur’s former father-in-law, Mr Sukar Singh, to Ms Kaur, dating from 2011 to 2015; and translated affidavits and letters purportedly sent to authorities in India in relation to alleged threats and violence towards Ms Kaur’s family.
9. On 28 April 2015, Ms Kaur appeared at a hearing before the Tribunal to give evidence and present arguments. The sponsor for Ms Kaur’s partner visa did not appear at the hearing before the Tribunal. Ms Kaur gave evidence that she did not know whether her relationship with the sponsor would continue because she claimed the sponsor had been drinking and had been violent towards her. Ms Kaur gave evidence to the Tribunal concerning her circumstances, which she said were sufficiently compelling to warrant the waiver of the Schedule 3 criteria.
10. Ms Kaur pointed, in particular, to three circumstances: first, that she feared for her safety if she were to return to India because of threats and violence from her first husband’s family, who had been violent towards her family and had made extensive threats to kill her if she returned to India; second, she had been a follower of Dera Sacha Sauda, an Indian religion, and feared harm from “Anti Dera organisations” if she returned to India; and, third, she suffered from mental health issues because of violence at the hands of her first husband, as well as her experience in detention. Ms Kaur also relied on the documentary evidence, summarised earlier, that she provided to the Tribunal in support of her claims.
11. On 21 July 2015, following the hearing on 28 April 2015, the Tribunal wrote to Ms Kaur pursuant to s 359A of the Act (s 359A letter), inviting her to comment on information that the report from “Psychology Pathways” that she had provided to the Tribunal had been altered. Ms Kaur was advised that the psychologist who had provided the report had confirmed that the copy of the report provided to the Tribunal was different to the report written by him. The Tribunal explained that this information was relevant because public interest criterion 4020 in Schedule 4 to the Regulations (PIC 4020) required that there be no evidence that the applicant had given, or caused to be given, to the Minister or an officer of the Tribunal, a bogus document or information that was false or misleading in a material particular.
12. The Tribunal put to the applicant that, by providing a psychologist’s report that had been altered, it appeared she had submitted a bogus document in support of her application. On the same day, the Tribunal also invited Ms Kaur to appear before it at a further hearing to be conducted on 11 August 2015. It is unclear whether Ms Kaur responded in writing to the s 359A letter. Ms Kaur did, however, attend the second hearing before the Tribunal on 11 August 2015, at which the information concerning the psychologist’s report was repeated to Ms Kaur, and she was given an opportunity to respond to it.
13. On 23 October 2015, the Tribunal decided to affirm the delegate’s decision not to grant Ms Kaur a partner visa. In its reasons, the Tribunal found that there were no compelling reasons to waive the Schedule 3 criteria. The Tribunal found that Ms Kaur’s mental health was treatable and was not a compelling reason. Nor was it satisfied that Ms Kaur would face harm in India as a former follower of Dera Sacha Sauda. The Tribunal noted that this claim had been the subject of a previous, unsuccessful, visa protection application and that Ms Kaur had also not made any oral submissions to the Tribunal in respect of that claim.
14. The Tribunal was also not satisfied that Ms Kaur’s claim to fear harm from her ex-husband’s family amounted to a compelling reason to waive the Schedule 3 criteria. In that regard, the Tribunal found that it was unable to verify that the documents, copies of which Ms Kaur had supplied to the Tribunal, had in fact been sent by Ms Kaur’s ex-father-in-law or subsequently provided to the Indian authorities.
15. Importantly, and independently of the claims made by Ms Kaur, the Tribunal also found that Ms Kaur had breached PIC 4020 by providing a bogus document, being the psychologist’s report. In so finding, the Tribunal noted that it had been in contact with the psychologist and that he had provided the Tribunal with a copy of the original report. The Tribunal identified a number of inconsistencies between the versions. The Tribunal noted that it had put information concerning the allegedly altered psychologist’s report to Ms Kaur, both in a letter pursuant to s 359A and at the hearing pursuant to s 359AA of the Act. The Tribunal said that it had considered, but did not accept, Ms Kaur’s explanations on that topic.
16. In all the circumstances, the Tribunal decided not to waive the requirements of PIC 4020. Accordingly, the Tribunal found that Ms Kaur did not satisfy the criteria for the grant of the visa and affirmed the decision under review.

THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT

17. Ms Kaur applied to the Circuit Court for judicial review of the Tribunal’s decision. Her application advanced the following three grounds (as drafted):
    1. Case officer Played a game with me She doesn’t want to look tru the circumstansis of my life.
    2. I have threaten from Indian people like my Father in law and Dera Sacha Sodha followers I’m but sikh will kill me if I go back.
    3. I would like to appil about 4020 to wave.
18. The application in the Circuit Court was heard on 27 April 2017. Ms Kaur did not initially appear in court when the matter was called on for hearing. It would appear, however, that Ms Kaur was contacted by telephone by the court, and that she agreed to the hearing taking place by telephone with the assistance of an interpreter. That is what occurred.
19. The primary judge rejected each of the three grounds that had been raised by Ms Kaur in her application. The primary judge also rejected some other arguments that Ms Kaur had advanced via telephone at the hearing. It is unnecessary to summarise the primary judge’s detailed and comprehensive reasons. That is because Ms Kaur’s grounds of appeal, and the submissions that she made in support of them, did not engage in any material way with the primary judge’s reasons.
20. It is sufficient to say that the primary judge rejected ground one of Ms Kaur’s application and the arguments she addressed in relation to it. The primary judge found that the arguments that Ms Kaur put in relation to ground one amounted to nothing more than a request for impermissible merits review of the Tribunal’s decision. Her Honour found that the Tribunal had considered Ms Kaur’s claims and documents, that the findings made by the Tribunal were open to it on the evidence, and that there was no basis for any contention of apprehended or actual bias on the part of the Tribunal.
21. As for ground two, the primary judge found that the Tribunal had considered Ms Kaur’s claims concerning her fears of harm if she was required to return to India and that the Tribunal’s findings concerning those claims were open on the evidence. Likewise, the primary judge rejected ground three because the Tribunal’s findings in respect of PIC 4020 were open on the evidence before it.
22. The primary judge also considered an issue that had, quite properly and fairly, been raised by the Minister in its submissions. The Tribunal in its reasons had cited the decision in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438; (2002) 116 FCR 557 as authority for the proposition that the question of whether there were compelling reasons for not applying the Schedule 3 criteria must be considered in relation to the circumstances existing at the time of the visa application. In his submissions before the primary judge, the Minister pointed out that the Full Court had subsequently held that compelling circumstances occurring after the date of the visa application should also be considered: see Waensila v The Minister for Immigration and Border Protection [2016] FCAFC 32; (2016) 241 FCR 121.
23. The primary judge held that, despite the Tribunal’s reference to Boakye-Danquah, the Tribunal had, in fact, considered all the claims that had been made by Ms Kaur in relation to her compelling reasons, including claims concerning events and circumstances after the time of her visa application. It followed that the Tribunal had asked itself the right question, did not confine Ms Kaur to the circumstances at the time of her application and, accordingly, did not err in its consideration of the question whether Ms Kaur had shown compelling circumstances for the waiver of the Schedule 3 criteria.
24. It should also be noted in that regard that the primary judge also found that, even if there had been some jurisdictional error arising from the application of the decision Boakye-Danquah, the Tribunal had, in any event, affirmed the decision under review on an entirely independent ground, that ground being Ms Kaur’s failure to meet PIC 4020. That finding was untainted by any error concerning the application of Boakye-Danquah.

APPLICATION FOR AN EXTENSION OF TIME – GROUNDS AND SUBMISSIONS

25. Ms Kaur sought an extension of time to appeal from the judgment of the Circuit Court. An extension of time was required because r 36.03 of the Federal Court Rules 2011 (Cth) provides that an appeal must be filed within 21 days after the date on which judgment was pronounced. Ms Kaur filed her notice of appeal seven days outside that time period.
26. The principles governing the exercise of the Court’s discretion to grant an extension of time are well-established. The Court must have regard to factors such as the length of, and reasons for, the delay, any prejudice to the respondent, and the merits – or lack thereof – of the proposed grounds of appeal: see Hunter Valley Developments Proprietary Limited v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, affirmed on appeal in Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319.
27. Ms Kaur’s draft notice of appeal, it is fair to say, contained no proper grounds. Rather, it included two proposed orders in the following terms (as drafted):

2. waved the not working right and 4020
3. married to out of religion.

28. Ms Kaur did not file any written submissions, despite having been directed to do so.
29. Ms Kaur also filed an affidavit in support of her application which sought to explain why she did not file her notice of appeal within time. Her affidavit stated as follows (as drafted):

3. I have been to the Court on 18 of May 2017. officer has been advise me I can file this form in 35 days.
4. I have been not advice by the case officer and other athouraties. Pls kindly give me permision to apply me court case. Thank you

30. As just indicated, Ms Kaur did not file any written submissions in support of her application for an extension of time. She did, however, appear at the hearing. She was invited to, and did, present her arguments and submissions in support of her application. Regrettably, but perhaps understandably, given that she again was not legally represented, her submissions were not always easy to follow. They were also not directed to the issues that the Court must consider and decide in considering her application for an extension of time.
31. Ms Kaur advanced a number of arguments which could perhaps best be characterised as complaints about the merits of the Tribunal’s decision. She also suggested that the primary judge had simply adopted the Tribunal’s findings and did not fairly consider her arguments. She also contended that the proceedings in the Circuit Court were unfair because she was required to appear by telephone and, as a result, could not fully explain her arguments. Finally, she simply asked for a further opportunity to put her case before another Court.
32. In relation to delay, Ms Kaur gave an explanation that was more fulsome, but not entirely consistent with, her affidavit. She said she had attended the Registry, obtained the relevant forms to file for the appeal, but was unable to pay the fee. She asked the Registry officer about waiver of the fee. She said she was told that, if she wanted to apply for the fee to be waived, she would have to present some evidence concerning her financial position. She then went away and spoke to her bank. It seems that the bank told her that it would take at least five days for the bank to send her the bank statements. She ultimately received her bank statements, but by the time she went back to the Court with them the 21 day appeal period had expired, hence her need to apply for an extension of time.

MERITS OF THE PROPOSED APPEAL

33. The merits of Ms Kaur’s proposed appeal may be dealt with in very short terms. As indicated, the grounds of appeal in Ms Kaur’s application did not raise any proper grounds of appeal. Nor did Ms Kaur raise any relevant or comprehensible arguments in oral or written submissions in support of her appeal.
34. The first purported ground that refers to waiver of the “not working right and 4020” can be dealt with briefly. To the extent that Ms Kaur contended that the Tribunal erred in finding that she did not meet PIC 4020, and that the Circuit Court erred in not finding error on the part of the Tribunal in that regard, such a contention cannot be made out. The Tribunal set out the evidence on which it based its finding that Ms Kaur had breached PIC 4020 in considerable detail. The Tribunal’s findings were well and truly open to it on the evidence. That was the effect of the findings of the primary judge. Ms Kaur has not pointed to any reason why the primary judge was not correct in rejecting her arguments concerning the Tribunal’s findings in relation to PIC 4020. Accordingly, ground one must be rejected.
35. The Minister submitted that the second ground, “married to out of religion”, is incapable of any meaningful response. I agree, it is not a proper ground of appeal and cannot be made out. As I indicated, Ms Kaur did not advance any other meaningful arguments as to any appellable error made by the primary judge.
36. The Minister submitted that the primary judge’s findings with respect to the Tribunal’s consideration of compelling circumstances, in light of Waensila, were correct. In any event, even if the Tribunal fell into error in respect of that issue, the Tribunal’s finding concerning PIC 4020 was a separate and independent basis for its decision which was not affected by jurisdictional error. The primary judge was correct to dismiss Ms Kaur’s application on that basis. The primary judge’s reasoning in that regard is consistent with the Full Court’s recent decision in Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; (2017) 252 FCR 31.
37. As for Ms Kaur’s complaint that she appeared by telephone at the Circuit Court hearing, the difficulty for Ms Kaur is that the need for her to make submissions by telephone arose because Ms Kaur took it upon herself not to appear in person at the hearing. In any event, it is clear from the primary judge’s reasons that, despite the fact that Ms Kaur only appeared by telephone, she was invited to make submissions and present her arguments, and she presented a number of arguments in addition to those that had been raised in the documents that she filed. The primary judge gave careful consideration to all of those arguments and dealt with them in her reasons. There is no basis for finding that the procedure adopted by the primary judge in hearing those submissions by telephone was in any way unfair in the circumstances.
38. It follows that Ms Kaur’s proposed grounds in her draft notice of appeal, and the arguments that she has presented in relation to them, to the extent that they can be deciphered, have no merit.
39. I should also note that, given that Ms Kaur appeared without legal representation, I have given close consideration not only to the Tribunal’s reasons, but also to the reasons of the primary judge in dismissing Ms Kaur’s application. I am unable to discern any jurisdictional error on the part of the Tribunal. More significantly, I am unable to identify any reasonable argument concerning any appellable error on the part of the primary judge. The primary judge gave lengthy, detailed and compelling reasons for dismissing the arguments that Ms Kaur raised.
40. In circumstances where Ms Kaur has failed to raise any even faintly arguable potential grounds of appeal, her application for an extension of time must be dismissed.

EXPLANATION FOR DELAY

41. For completeness, I should add that I am not satisfied that Ms Kaur has given an adequate explanation for her failure to file her notice of appeal within time. The explanation that she gave orally in support of the hearing differed in certain respects from her affidavit. In her affidavit she appeared to suggest that she was given some incorrect information about the period within which her notice of appeal was required to be filed. In her oral submissions, she indicated that the difficulty was that she had to take time to apply for a fee waiver. She did not suggest that she was not aware that she was required to file her appeal within 21 days. She did not explain why she left it so late to attempt to file her documents if she intended to apply for a fee waiver.
42. In all the circumstances, I am not satisfied that Ms Kaur has given an adequate explanation for her failure to apply within time.

CONCLUSION AND DISPOSITION

43. Ms Kaur has failed to show that she has any proper or reasonable grounds for an appeal. She has not demonstrated any, let alone any reasonable, argument concerning appellable error by the primary judge. Nor has she adequately explained why she did not file her appeal within time. Her application for an extension of time must be dismissed.
44. Ms Kaur has not made any submissions as to why she should not be required to pay the Minister’s costs of this application. Accordingly it is appropriate to order her to pay those costs. The Minister seeks a lump sum costs order pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). The Minister has filed an affidavit in support of that application which I have considered. In my opinion, it is an appropriate case to make a lump sum costs order for $2,500, being the amount sought by the Minister. That amount is both reasonable and justified.

Associate:

Dated: 29 March 2018