FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2017] FCA 153

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant pay the costs of the first respondent to be assessed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

THIS APPLICATION

1    Mr Patel applies this morning for an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia delivered on 7 September 2016 (Patel v Minister for Immigration and Anor [2016] FCCA 2722). The Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal which had been made on 3 February 2015 under the Migration Act 1958 (Cth) . By that decision the Tribunal had affirmed the original decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant Mr Patel a student visa.

BACKGROUND

2    Mr Patel is a citizen of the Republic of India. On 7 August 2013 he applied for a visa from the Minister. In response, further information was requested of Mr Patel, including evidence that he was a genuine temporary entrant and inviting him to comment on specified adverse information.

3    Mr Patel emailed the Department of Immigration and Border Protection on 5 September sending attachments designed to answer queries raised by the Department and, about a month later, the Department requested additional information, seeking evidence demonstrating that Mr Patel was actively studying and why there appeared to be some gaps in his study history. Mr Patel responded on 25 October 2013 through his first representative providing various documents purportedly giving the information which had been sought and explaining how the courses of study would assist him in opening a restaurant.

4    On 22 April 2014 Mr Singh was informed of the delegate’s decision of the same day, declining to grant the visa because, on balance, the delegate was not satisfied that Mr Patel intended to genuinely stay in Australia temporarily having regard to his circumstances and immigration history. The delegate concluded that he failed to meet the relevant regulations of the Migration Regulations 1994 (Cth).

in the tribunal

5    Mr Patel then engaged a new representative who applied to the Tribunal for merits review of the delegate’s decision. The Tribunal invited Mr Patel, by a letter sent to his second representative, to appear to give evidence and present arguments and attached a copy of Ministerial Direction No. 53. Mr Patel’s representative sent submissions and further documentation to the Tribunal and appeared in a hearing before the Tribunal. On 3 February 2015 the Tribunal decided to affirm the decision under review as it was not satisfied of the same matters raised by the delegate. It made the following specific findings: having regard to Mr Patel’s intended course of study, the subclass of student visa was a subclass 572; that the Tribunal had to have regard to the relevant Ministerial Direction, noting that it was not intended to be used as a checklist, but rather to guide decision-makers to weigh up an applicant’s circumstances as a whole; that the Tribunal had real concerns with the applicant’s study history in Australia; and that the Tribunal did not consider Mr Patel’s circumstances to be exceptional, explaining various reasons why that was so.

6    The Tribunal considered Mr Patel’s evidence that his family and wife lived in India and also considered that the family had allegedly purchased a restaurant for him to run in India. However, the Tribunal gave those claims little weight due to the family’s inexperience in the field and inconsistency of evidence.

IN THE FEDERAL CIRCUIT COURT

7    Mr Patel sought judicial review of this decision in the Federal Circuit Court in February 2015. Three essential grounds of appeal were raised in that application as follows:

1.    The Tribunal erred in misconstruing and interpreting of "Direction No. 53, Assessing the genuine temporary entrant criteria for Student visa" pursuant to s.499 of the Act.

Particulars

a.    The Tribunal's interpretation of the Directions No. 53 was incorrect and not based on the available documents and evidence presented before the Tribunal.

b.    The Tribunal was influenced by the delegate's findings rather than making its own findings based on evidence presented before the Tribunal.

c.    The Tribunal proceeded to list the factors in the Direction No 53 and used it as a checklist rather than referring to the direction as a guide.

2.    The Tribunal erred on the basis that it asked itself the wrong question by misconstruing the requirements of Direction No 53.

Particulars

(a)    The Tribunal focussed its mind on the Direction 53 factors rather than applying the facts and evidence presented before the tribunal.

3.    The Tribunal erred in not considering clause 572.223.

Particulars

(a)    The Tribunal erred in not considering cl572.223(1)(a)

(b)    The erred in not applying the facts when considering the Regulations

(c)    The Tribunal erred in saying the applicant was 'circumventing the migration program" without any basis in law and fact.

(d)    The Tribunal failed to consider that the applicant completed all his courses.

8    Clause 572.223 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

(b)    the applicant meets the requirements of subclause (2).

(2)    An applicant meets the requirements of this subclause if:

(a)    the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

(b)    the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

(i)    the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

(ii)    any other relevant matter; and

(c)    the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

9    Mr Patel appeared at a hearing before the Federal Circuit Court on 7 September 2016. At that hearing, Mr Patel did not expand upon the grounds of review to which I have referred. The Court noted that it became apparent that he did not understand the grounds that had been advanced. There were oral submissions made, however, which the primary judge characterised as either a disagreement with the Tribunal decision which could not give rise to jurisdictional error, or a failure to consider the evidence advanced by Mr Patel. The primary judge concluded that there was no evidence the Tribunal did not consider; the Tribunal appropriately considered the Ministerial Direction; the Tribunal had not been influenced by the findings of the delegate; and the finding that Mr Patel was circumventing the migration program was open on the evidence.

10    On that basis, the primary judge dismissed the application.

THIS COURT

11    Mr Patel now proceeds by way of an extension of time for leave to appeal supported by an accompanying affidavit and a draft notice of appeal.

12    On the application before me this morning, after some confusion on his part as to whether or not there was an affidavit in support, Mr Patel accepted that he did rely on the affidavit in support. The terms of the affidavit really go to the question of being mistaken as to the belief that similar rules apply in this Court to the Federal Circuit Court in relation to the amount of time required for an extension. Mr Patel thought that he had 28 days and his affidavit makes the point that there is no prejudice to the Minister. He contacted the Federal Circuit Court after the decision was made asking for a copy of the reasons of the primary judge and was delayed in filing the materials by circumstances beyond his control. He sought an opportunity to engage counsel which, of course, he has had since 4 October 2016, and an opportunity to present his case by giving oral testimony.

13    The relevant principles in relation to an extension of time are well recognised. It is necessary to take into account whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal and any prejudice to the respondent as well as the merits of the proposed appeal. The decisions dealing with those principles are well recognised, such as Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 (at 348-349).

14    The Minister opposes the application. The circumstances are that the appeal would only be six days out of time if an extension were granted and the Minister accepts, as I think must be the case, that that in itself is not a significant time. The Minister contends that the explanation by Mr Patel for the delay is not adequate. That can be put to one side for the moment. Clearly, there is no express prejudice to the Minister, other than the general prejudice of delay and administrative process and the prejudice to the public in that delay.

15    As to the merits of any appeal, the grounds are really grounds of the application but are designed to reflect what would be the grounds of appeal:

1.    That pending the preparing of Reasons of Judgement by the [primary judge] [Mr Patel] be granted leave to appeal.

2.    That leave be granted to amend the Application for leave filed herein once the reasons of judgement of the learned Judge are made available to [Mr Patel].

3.    That Her Honour the [primary judge] erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223(1)(a) Migration Regulations 1994

Particulars

a.    The Tribunal erred in not considering cl 572.223(a)

b.    The Tribunal erred in not applying the facts when considering the cl 572.223

c.    The Tribunal erred in concluding that [Mr Patel] was "circumventing the migration program" without any basis in law and fact.

4.    Her Honour the [primary judge] erred in not holding that the Tribunal made jurisdictional error as it failed to consider all the criteria mentioned in Direction 53 made under Section 499 of the Migration Act.

5.    Her Honour the [primary judge] erred in not looking closely at the structure of Tribunal's reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.

6.    The appellant's application clearly raises an arguable case.

16    The first two grounds are procedural. Ground 3 contends a jurisdictional error in failing to consider cl 572.223(1)(a) of the Regulations, in not applying the facts when considering the Regulation and in erring in concluding that Mr Patel was circumventing the migration program without any basis in law and fact.

17    Ground 4 is that the primary judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider all the criteria mentioned in the Ministerial Direction made under s 499 of the Act.

18    Ground 5 is that the primary judge erred in not looking closely at the structure of the Tribunal’s reasons in order to assess whether it had truly had regard to all the mandatory criteria, applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. Ground 6 is a submission.

19    Ground 3 and ground 4 are the substantive grounds and they challenge the conclusions reached by the primary judge in the application made to that Court. Ground 5, in not looking closely at the structure of the Tribunal’s reasons, is a new ground. Although there is no explanation for raising the ground now, given that Mr Patel is unrepresented, I would permit that new ground to be raised if leave is granted and note that there is no objection by the Minister to that ground being raised.

20    There is no material filed in support of any of these grounds and no oral or written submissions have been made in support of the grounds. No attempts have been made to expand or develop upon any of the substantive grounds of appeal, notwithstanding orders to that effect. I have, nonetheless, considered the grounds in the context of the decision of the primary judge. In my view, there is no error demonstrated in the way the primary judge addressed the Tribunal’s decision.

21    Her Honour was correct to conclude that there was nothing in the reasons which would suggest the Tribunal failed to consider all claims and evidence advanced by Mr Patel. There is no apparent basis advanced today or otherwise for concluding that the finding that Mr Patel was circumventing the migration program was not a finding of fact open to the Tribunal. Additionally, there is no basis to conclude that her Honour was in error in deciding that the Tribunal had appropriately considered the relevant Ministerial Direction and the Regulations. The Tribunal’s decision demonstrates that this is so in assessing the claims of whether Mr Patel was a genuine student and determining whether he could satisfy the requirements of cl 572.223. As to the proposed new ground 5, there is no merit in the suggestion as to the failure to closely examine the Tribunal’s reasons. The Tribunal gave adequate and proper consideration to all those matters.

22    The substantive grounds of appeal Mr Patel would advance have no merit. There was no error in the reasoning of the primary judge in finding that the decision of the Tribunal was not infected by jurisdictional error. On that basis, the application for an extension of time must be dismissed with costs and I so order.

Associate:

Dated:    24 February 2017