FEDERAL COURT OF AUSTRALIA

Pyaneeandee v Minister for Immigration and Border Protection [2017] FCA 1496

ORDERS

THE COURT ORDERS THAT:

1.    The Applicants’ application for extension of time and leave to appeal dated 24 May 2017 is dismissed.

2.    The First 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

BROMBERG J:

1    The Court has before it an application for extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia. Some background matters relating to the applicants’ circumstances are aptly set out in the first respondent’s (“Minister”) outlines of submissions. Relevantly, on 18 September 2012 the first applicant was granted a Student (Class TU) Subclass 573 Higher Education Sector visa (“visa” or “student visa”). The first applicant’s student visa was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (“Regulations”), which required the applicant to be “enrolled in a full-time registered course”: cl 573.611(a) of Sch 2 of the Regulations. The second applicant is the daughter of the first applicant. She, and her immigration status, are dependent upon the first applicant.

2    Section 116(1)(b) of the Migration Act 1958 (Cth) (“Migration Act”) provides that the Minister may cancel a visa if satisfied that the holder of a visa has not complied with a condition of the visa. On 9 November 2015, a delegate of the Minister cancelled the student visa. The delegate found that there was a ground for cancellation under s 116(1)(b) of the Migration Act because the first applicant had breached visa condition 8202 by failing to remain enrolled in a registered course and proceeded to exercise the discretion to cancel the visa and those visas held by dependents of the first applicant, including the visa of the second applicant.

3    On 13 November 2015, the applicants applied for review of the delegate’s decision. That review was undertaken by the Administrative Appeals Tribunal (“Tribunal”). After holding a hearing on 14 June 2016, the Tribunal affirmed the delegate’s decision on 30 June 2016.

4    On 20 July 2016, the applicants filed an application seeking judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. On 2 November 2016, the proceeding before the Federal Circuit Court was listed for a show cause hearing, which occurred on 10 February 2017. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) relevantly provides that at a hearing of an application for an order to show cause, the Federal Circuit Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) specifically provides that, to avoid doubt, a dismissal under paragraph 1(a) is interlocutory. On 5 May 2017, the Federal Circuit Court ordered that the application made by the applicant be dismissed pursuant to r 44.12.

5    On 24 May 2017, the applicants made an application in this Court for extension of time and leave to appeal. The application was accompanied by an affidavit which included a draft Notice of Appeal. That draft notice contained two proposed grounds in the following terms:

1.    I appreciate his honour Nicholls judgment. But still believe that my concern in the amendment application filled was not properly consider.

2.    I do appreciate if the Federal Court would listen to the AAT interview to confirm that there was and unfairness in the way the member conducted the Interview.

6    The applicants’ application for extension of time and leave to appeal confronts a number of hurdles. The applicants have lodged their application for leave to appeal some five days late. Whether an extension of time should be granted depends on a number of considerations:

(1)    The applicants need to explain why their application is late.

(2)    I would need to consider whether there is any prejudice to the Minister.

(3)    The applicants would need to show that they have some reasonable prospect of success in relation to their proposed appeal.

7    Although there is no explanation for the delay provided in the first applicant’s affidavit, when the first applicant appeared before me she explained that she had misunderstood the time period within which her application should have been brought. There is no prejudice to the Minister involved. The delay is short and I am prepared to accept the explanation given by the first applicant as to the cause for the delay. Whether there are reasonable prospects of success is a matter that I will come to in a moment. That is because the judgment of the Federal Circuit Court was interlocutory rather than final and leave to appeal is therefore required.

8    In considering whether leave to appeal should be granted, it must be shown that there is sufficient doubt as to the correctness of the judgment of the Federal Circuit Court and that, supposing the decision to be wrong, substantial injustice would be suffered by the applicants if leave to appeal were refused. In conjunction with that consideration, I can conveniently consider whether the application has reasonable prospects of success sufficient to warrant the grant of an extension of time.

9    When the first applicant appeared before me, she did not make submissions in support of the grounds in the draft Notice of Appeal. She made submissions dealing with another matter that I will come to in a moment.

10    The first of the two proposed grounds suggests that what the applicants would contend, should leave to appeal be granted, is that the primary judge failed to properly consider her case. I do not consider that there is sufficient doubt as to the correctness of the primary judge’s judgment or any reasonable prospects of success in relation to this proposed ground. The ground is not particularised but, having read the decision of the primary judge, it appears to me that the primary judge considered each of the matters that were put before him by the applicants.

11    The second proposed ground appears to be a request of this Court that it should listen to the AAT interview rather than an identification of any error on the part of the primary judge. It may be the case, as the Minister’s submissions apprehend, that by proposed ground 2 the applicants are trying to say that the hearing before the Tribunal was procedurally unfair. If that is so, it is not clear to me and nothing said by the first applicant today suggests that the procedure or process adopted by the Tribunal failed to accord her procedural fairness. Nor do the reasons of the Tribunal suggest a failure to comply with any of the Tribunal’s procedural fairness obligations.

12    It needs to be recalled that the function of the Federal Circuit Court in a show cause proceeding was to determine whether there was an arguable case for relief, in particular, whether the applicants had established an arguable case of jurisdictional error on the part of the Tribunal. It was not the function of the Federal Circuit Court to review the merits of the decision reached by the Tribunal.

13    In her submissions made at this hearing, the first applicant said that the Tribunal had not put itself in her shoes. In particular, the first applicant suggested that the Tribunal had failed to take into account the illness of her husband, which the first applicant contends led to her inability to continue her studies. She said that if those matters had been really taken into account and considered then the Tribunal would not have cancelled the first applicant’s visa. She also said that she really believed that there was unfairness in the decision of the Tribunal.

14    Like the task of the Federal Circuit Court, my task is limited. I am not at liberty to review the decision of the Tribunal as to its merits. My task is simply to consider whether the leave that is now sought to bring an appeal should be given, and I must do that in the knowledge that the task of the appellate court, should an appeal be permitted, is also limited. The appellate court does not have the liberty of reassessing the merits of the decision made by the Tribunal. The task of the appellate court is confined to determining whether there is appellable error in the decision of the Federal Circuit Court.

15    The submission made by the first applicant orally is suggestive of a claim that the Tribunal failed to consider the fact that the first applicant’s husband was ill and the consequences of that upon her ability to engage in further study. The Tribunal was satisfied that the first applicant’s student visa was open to be cancelled on the basis that she was not enrolled in a registered course of study. The fact that the first applicant was not so enrolled was acknowledged by her before the Tribunal, as the Tribunal’s reasons indicate. Having found that the first applicant had not complied with a condition of the student visa, the Tribunal turned to consider whether or not it should exercise its discretion to cancel the student visa.

16    One of the matters that the Tribunal identified should be considered at [16] of its reasons, was whether or not there were extenuating circumstances beyond the visa holder’s control that explained the first applicant’s failure to meet the condition on the student visa. In that context, at [21], the Tribunal referred to the illness of the first applicant’s husband. The Tribunal noted that the first applicant had provided a range of medical documents relating to her husband. The Tribunal then set out the nature of the medical conditions of the first applicant’s husband, and at [29] of the Tribunal’s reasons, the Tribunal accepted that the first applicant’s husband had a range of serious illnesses which would have created difficulties for the first applicant in studying.

17    It is clear that the Tribunal did consider the medical condition suffered by the first applicant’s husband in coming to a decision that, as a matter of discretion, there were no extenuating circumstances beyond the visa holder’s control which justified the non-cancellation of the student visa. The Tribunal considered that there were matters within the first applicant’s control that explained why the condition upon her visa was not met. One such matter was the failure of the first applicant to have maintained enrolment and to have sought a deferral on compassionate grounds. I note also that in setting out, at [40] of its reasons, a summary of its conclusions, the Tribunal also indicated that it accepted, to some extent, that there were mitigating circumstances due to the illness of the first applicant’s husband.

18    It seems to me clear that, contrary to the submission made by the first applicant today, the Tribunal did take into account the illness of the first applicant’s husband. It may be that what the first applicant is really saying is that the Tribunal failed to give that matter sufficient weight, but the weight to be accorded to that factor was a matter for the Tribunal as part of its merits review. The failure to give a matter sufficient weight is not generally a basis for jurisdictional error. Generally speaking, it seems to me, having read the reasons of the Federal Circuit Court, the primary judge was aware of and dealt correctly with arguments of the kind that the first applicant made today.

19    I do not consider that the applicants have any reasonable prospect of success should an extension of time be granted for them to file their appeal. Nor do I consider that there is sufficient doubt as to the correctness of the judgment below that leave to appeal is warranted.

20    Accordingly, the applicants’ application for extension of time and leave to appeal should be dismissed.

Associate:    

Dated:    12 December 2017