FEDERAL COURT OF AUSTRALIA

Wei v Minister for Immigration and Border Protection [2014] FCA 539

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant seeks an extension of time for leave to appeal and, if granted, leave to appeal against a decision of the Federal Circuit Court of Australia (“the FCC”) delivered on 18 February 2014: Wei v Minister for Immigration and Border Protection [2014] FCCA 263. The primary judge dismissed an application for judicial review of a decision of the Migration Review Tribunal (“the MRT”). The FCC’s decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and was, therefore interlocutory in nature: see r 44.12(2) of the FCC Rules. Leave to appeal from the primary judge’s decision is therefore required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background facts

2    The applicant is a citizen of the People’s Republic of China who applied for a Student (Temporary) (Class TU) visa on 16 November 2011 in order to undertake study in Australia. A delegate of the Minister refused the application on the basis that the applicant failed to satisfy the requirements of cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because the delegate was “not satisfied that the applicant [was] a genuine applicant for entry and stay as a student”.

MRT’s decision

3    The applicant applied to the MRT for review of the delegate’s decision. He was represented by a registered migration agent. He appeared before the MRT with the assistance of a Mandarin interpreter.

4    According to the MRT’s statement of decision and reasons, the applicant’s visa was refused because he did not provide the evidence required to demonstrate that he was a genuine student as required by cl 573.223 of the Regulations.

5    The issue before the MRT, according to its reasons, was “whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters.”

6    The MRT noted that, in order to meet this criterion, the applicant was required to give evidence in accordance with the requirements set out in Sch 5A to the Regulations for the highest assessment level for the applicant. The MRT stated that, as a holder of a Chinese passport, the relevant assessment level for Subclass 573 (the subclass for the applicant’s principal course, being a Bachelor of Business) was assessment level 3. The evidentiary requirements for this assessment level are set out in Pt 5 of Sch 5A to the Regulations.

7    The MRT identified the pertinent requirement as cl 5A508 which provided at the relevant time:

(1)    The applicant must give, in accordance with this clause:

(a)    evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 18 months:

(i)    course fees;

(ii)    living costs;

(iii)    school costs; and

(aa)     a declaration by the applicant stating that he or she has access to funds from an acceptable source that are sufficient to meet course fees, living costs and school costs for the remainder of the applicant’s proposed stay in Australia after the first 18 months; and

(b)    evidence that the applicant has funds from an acceptable source that are sufficient to meet travel costs; and

(c)    evidence that the regular income of any individual (including the applicant) providing funds to the applicant was sufficient to accumulate the level of funding being provided by that individual.

…

(2)    In this clause:

funds from an acceptable source means one or more of the following:

(a)    if the applicant:

(i)    has successfully completed at least 75% of the requirements for his or her principal course; and

(ii)    has applied for the visa in order to complete the course; and

(iii)    does not propose to undertake any further course;

a money deposit held by the applicant or an individual who is providing support to the applicant;

(b)    if paragraph (a) does not apply — a money deposit that the applicant, or an individual who is providing support to the applicant, has held for at least the 3 months immediately before the date of the application;

(c)    a loan from a financial institution made to, and held in the name of, the applicant or an individual who is providing support to the applicant;

(d)    a loan from the government of the applicant’s home country;

(e)    financial support from:

(i)    the applicant’s proposed education provider; or

(ii)    the Commonwealth Government, or the government of a State or Territory; or

(iii)    the government of a foreign country; or

(iv)    a corporation that:

(A)    conducts commercial activities outside the country in which it is based; and

(B)    employs the applicant in a role in relation to which the applicant’s principal course is of direct relevance; or

(v)    a multilateral agency; or

(vi)    a provincial or state government in a foreign country, provided with the written support of the government of that country; or

(vii)    an organisation specified by the Minister in an instrument in writing for this subparagraph; or

(viii)    an acceptable non profit organisation.

8    The MRT reviewed the evidence provided by the applicant which comprised:

(a)    two Westpac bank account statements, said by the applicant to relate to accounts held by a Mr Gang Fang. The statements covered the following periods:

i.    11 January 2013 to 30 September 2013 (Reward Saver account); and

ii.    11 January 2013 to 9 October 2013 (Esaver account);

(b)    the applicant’s Commonwealth bank account statements for:

i.    periods in 2007;

ii.    June to August 2012; and

iii.    1 September 2013 to 9 October 2013;

(c)    property certificates relating to four separate properties in China, naming Gang Fang as the owner; and

(d)    other evidence of funds including bank statements.

9    The MRT concluded that the evidence did not satisfy the requirements of cl 5A508(1)(a) because:

(a)    sub-clause (a) of the definition of “funds from an acceptable source” did not apply, as it was not satisfied that the applicant had successfully completed 75% of the requirements for his principal course;

(b)    the evidence did not disclose “a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application”, as required by sub-clause (b) of the definition of “funds from an acceptable source”; and

(c)    the evidence did not disclose that the applicant had funds from an acceptable source that were sufficient to meet his course fees, living costs and travel costs for the first 18 months of his visa, if granted.

10    For these reasons, the MRT affirmed the decision under review.

11    The MRT decision referred to an English language ability requirement in Schedule 5A but there is nothing in the decision as to whether the applicant met or did not meet that requirement.

FCC’s decision

12    On 4 November 2013, the applicant applied to the FCC for judicial review of the MRT’s decision.

13    He relied on the following grounds:

I need my student visa is granted by the MRT.

I need my student visa is granted by DIBP.

I meet all the conditions to grant the student visa.

14    It appears from the reasons of Judge Emmett that the applicant’s complaints as disclosed in his application were interpreted for him and he was invited to say whatever he wished in support of his application. The reasons do not record any submission by the applicant in support of the proposition that he met the conditions for the grant of a student visa. Rather, he said that he understood his visa application to have been refused because he did not have sufficient English to satisfy the visa requirements.

15    In her reasons for decision, Judge Emmett noted that:

7.    The MRT’s decision record makes clear that the concern that it had about the applicant’s student visa application was whether the evidence of funds was from an acceptable source. There is nothing on the face of the MRT’s decision record to suggest that its conclusion that the evidence of the applicant’s source of funds did not satisfy the definition of “funds from an acceptable source”, pursuant to the regulatory scheme in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth). The MRT expressed the reasons for its concerns and ultimately affirmed the decision under review.

8.    There is nothing on the face of the MRT’s decision record to suggest that its finding (sic) were not open to it on the evidence and materials before it and for the reasons its gave. Further, there is no jurisdictional error apparent on the face of the MRT’s decision record and none is identified by the applicant.

16    Her Honour was not satisfied that the applicant had raised an arguable case for relief. Accordingly, she dismissed the application.

Appeal proceedings

17    The applicant now seeks to appeal to this Court from the FCC’s decision. His application for leave contains the following grounds:

1.    I could not apply for the appeal on time set out in the legislation.

2.    I need more time to provide the documents.

18    The applicant’s draft notice of appeal contains the following grounds:

1.    I was not given fair judgment to revoke Migration Review Tribunal (MRT) and Department and Immigration and Boarder Protection’s (DIBP) decisions for granting my student visa despite I meet all the regulations to grant my student visa.

2.    My life will be destroyed, if I cannot continue my studies on a student visa. It is very important for me to study for my future career and life.

19    The Minister opposed the application for an extension of time within which to seek leave to appeal. He submitted that the application should not be granted because there was no clear explanation for the delay and the FCC decision was not attended with doubt, so as to warrant its reconsideration.

20    The applicant appeared in person. He had the assistance of an interpreter. I invited the applicant to say anything that he wanted to in support of his application. He replied, “MRT refused my application on the grounds I don’t have financial resources but actually I got a sponsor and the sponsor also sent me some money”. I asked him whether he wanted to say anything about the primary judge’s decision, and whether he wanted to say anything about why her decision was wrong. I also invited him to point to any part of the MRT decision that he said contained an error. He did not identify any matter in response to these questions.

Extension of time

21    The relevant considerations in deciding whether to grant an extension of time for leave to appeal are: first, the reasons for the delay and secondly, whether the application for leave to appeal has such prospects of success as not to render the extending of time an exercise in futility: Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20]. See also WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

22    If a proposed appeal has no prospect of success an extension of time, even for a short period, may be refused: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23], citing Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J with whom Gyles and Besanko JJ agreed; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]; SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 at [22]; SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 at [19].

Leave to appeal

23    The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

(a)    that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(b)    that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (“Décor Corporation”) at 398–400; [1991] FCA 655 at [2]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [44] per French J (as he then was) with whom Beaumont and Finkelstein JJ agreed; Samsung Electronics Co. Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [26]–[30].

Consideration

24    The applicant identified no appealable error in the decision of the primary judge, either in his draft notice of appeal or in his submissions. The applicant simply asserted in his draft notice of appeal that he met the criteria for a student visa, contrary to the findings of the MRT. At the hearing he said “I got a sponsor and the sponsor also sent me some money”, “[w]hen I need the fund I can call him and he will give me the money” and finally “I really am not very clear whether I have been refused a visa based on my English language ability or the financial evidence”. None of these matters raised any possible appealable error in the decision of the primary judge that I could discern. Indeed, the applicant has not put forward anything to support the assertion that he has ever met the “acceptable source of funds” criteria in cl 5A508, and nothing to suggest that the MRT might have erred in concluding that he did not meet those criteria.

25    In the absence of any identified appealable error, the proposed appeal would be bound to fail and an extension of time would be an exercise in futility.

26    Accordingly, the application for an extension of time is refused with costs.

Associate:

Dated:    28 May 2014