FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection (No 2)[2017] FCA 1527

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time in which to file and serve an application for leave to appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an application for extension of time and for leave to appeal from orders of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The Tribunal had affirmed a decision of a delegate of the Minister not to grant a Student (Temporary) (Class TU) visa to the first applicant (the applicant) and the second applicant, who is the applicant’s wife.

2    The matter came before me for hearing on 10 November 2017. The applicant appeared in person. I granted the adjournment sought by the applicant, and made orders for the applicant’s filing of written submissions that would be filed on the appeal, if an extension of time and leave to appeal were to be granted. Those submissions were to contain clear identification of why the approach or reasons of the Tribunal and/or primary judge were in error: see Singh v Minister for Immigration and Border Protection [2017] FCA 1334.

3    On 1 December 2017, the applicant filed submissions for this purpose. I have considered those submissions, and for the reasons that follow, I am not persuaded that the reasons of the Tribunal or primary judge reveal an appealable error that make it appropriate for either an extension of time or leave to appeal to be granted.

Decisions of the Delegate and the Tribunal

4    The factual background to this matter is set out in the reasons of the Federal Circuit Court: see Singh v Minister for Immigration and Border Protection [2017] FCCA 1198 at [4]-[12]. Briefly put, the delegate of the Minister refused to grant the applicant a Student (Temporary) (Class TU) visa. The delegate was not satisfied that the applicant intended to genuinely stay in Australia temporarily as a student in light of his lack of academic progress, his study history, circumstances and immigration history. The application was refused on the basis that the applicant did not satisfy the requirements of cl 572.223(1)(a) of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations).

5    The applicant applied for merits review at the Tribunal. Before the Tribunal hearing, the applicant was invited to put on submissions and provide further evidence including a copy of a current certificate of enrolment, evidence of enrolment or an offer of enrolment on a course of study; evidence of past studies in Australia and an explanation for any gaps in his enrolment history. The applicant submitted that he was a genuine student, and that his study gaps were brought about by medical conditions affecting his wife.

6    The Tribunal identified that the relevant subclass of visa was Subclass 572. It affirmed the decision of the delegate that the applicant did not meet the requirements of cl 572.223(1)(a) of Sch 2 to the Regulations, nor the requirements of cl 572.222 of Sch 2 to the Regulations.

7    In considering whether the applicant met the requirement of being a genuine applicant for entry and stay as a student as provided by cl 572.223(1)(a) of Sch 2 of the Regulations, the Tribunal noted that it must have regard to Ministerial Direction 53 (Assessing the genuine temporary entrant criterion for Student visa applications), which requires the Tribunal to consider a number of factors including the applicant’s circumstances, immigration history and other relevant information provided by the applicant. The Tribunal recognised that these factors were not to be used as a checklist, but provided a guideline for considering the applicant’s circumstances as a whole in its assessment of whether the applicant satisfied the genuine temporary entry criterion.

8    On the evidence before it, the Tribunal found that the applicant did not meet cl 572.223(1)(a) of Sch 2 of the Regulations as it was not satisfied the applicant intended to genuinely stay in Australia temporarily. The main factual findings that went to the Tribunal’s decision were accurately summarised by the primary judge at [11] of his reasons as follows:

a.    since 2009, when the applicant arrived in Australia, the applicant held student visas or associated bridging visas, none of which prevented him from studying;

b.    the applicant completed about two years of study only and had not studied since May 2014, about 16 months prior to the Tribunal hearing in October 2015;

c.    the applicant’s bridging visa, from June 2014, carried a “no work condition”;

d.    the applicant had no clear idea of a course he should study;

e.    the applicant expressed his interest in undertaking a course of study at a level below that of his existing qualifications and as a result the Tribunal was not satisfied that the applicant’s proposed course of study held any substantial value;

f.    the applicant was unable to explain why he had not used the 16 months since June 2014 to make inquiries about courses that might hold value to his future;

g.    the applicant was unable to respond to the proposition that he did not have any real study plan;

h.    the applicant was unable to account for about 40 months, since June 2009, during which he was not prevented from studying but during which he was not, in fact, studying; and

i.    the two applicants had no incentive to return to India

9    The Tribunal found on the evidence that the applicant had not studied since mid-2014. The fact that the applicant did not have a current certificate of enrolment meant that the applicant also did not satisfy cl 572.222 of Sch 2 of the Regulations.

10    For those reasons, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa.

Federal Circuit Court Proceedings

11    The applicant relied on three grounds of review before the primary judge, namely:

1.    The Tribunal did not correctly interpret cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth).

2.    The Tribunal in its assessment of the genuine temporary entrant criterion as required by cl 572.223 took into account irrelevant considerations and did not consider relevant considerations.

3.    Failure of the Tribunal to properly interpret and assess cl 572.223 resulted in a denial of an opportunity to be heard and a breach of the principles of natural justice.

12    In addressing ground 1, the primary judge concluded that the Tribunal applied the correct version of cl 572.223, identified the correct Ministerial Direction and applied it without error, considering relevant matters and not taking into account irrelevant ones. Even if the applicant’s ground of appeal was intended to be directed to the interpretation of cl 572.222, the Tribunal was open to reach the conclusions that it did in circumstances where both applicants had conceded that they did not hold current certificates of enrolment at the time of the Tribunal hearing.

13    In addressing ground 2, the primary judge noted that no particulars were provided for the contention that the Tribunal took into account irrelevant considerations. Clause 572.223(1)(a) sets out the relevant considerations, and the primary judge concluded that the Tribunal gave ‘active, intellectual consideration’ to the matters contained in that clause.

14    Ground 3 was directed to procedural fairness. The primary judge noted that the applicant did not articulate why he was denied procedural fairness beyond general and unspecific contentions that he was not given an opportunity to be heard. The primary judge found that the applicant took up the Tribunal’s invitation to provide submissions and evidence in support of his case and that he was heard at the hearing. The Tribunal had made clear to him in a letter before the hearing the importance of providing a current certificate of enrolment. He admitted that he did not have one. On that basis, the primary judge found no reason to find that any aspect of the natural justice requirements in Div 5 of Pt 5 of the Migration Act 1958 (Cth) were contravened.

15    For those reasons, the primary judge identified no jurisdictional error in the Tribunal’s approach or reasons and the matter was dismissed on an interlocutory basis under r 44.12 of the Federal Circuit Court Rules.

Application for extension of time and leave to appeal

16    The Federal Circuit Court decision was delivered by the primary judge on 1 May 2017. The application for leave was filed on 26 May 2017, making it 11 days out of time. In an affidavit sworn by the applicant on 25 May 2017, the applicant deposes that he believed he had 21 days to appeal to the Federal Court and that he did not have money to access a lawyer to obtain legal advice.

17    The applicant filed submissions on 1 December 2017 pursuant to the orders made at the hearing before me on 10 November 2017.

18    In those submissions, the applicant contends that his visa application was refused by the Department of Immigration and Border Protection as it was not completed properly by his migration agent and submits that he was unsuccessful before the Tribunal due to improper representation by his representatives. He states that the gaps in his studies were caused by his wife’s and his own medical conditions. The applicant contends that the Federal Circuit Court’s decision was in error and that he wishes to appeal with legal representation.

19    The Minister submitted that it did not oppose the application for extension of time on the basis that there is an unacceptable explanation for the delay or that there would be undue prejudice to the Minister if the Court were to grant leave. Rather, the Minister opposed the grant of an extension of time because he submits any appeal would enjoy no prospects of success.

20    It is well established that in applications of this kind, the Court will have regard to whether the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration on appeal and whether a refusal to grant an extension of time would give rise to substantial injustice: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. See also MZZLM v Minister for Immigration and Border Protection [2014] FCA 570.

21    The draft grounds of appeal set out in the applicant’s affidavit are as follows:

1. The learned judge dismissed the appellant's application filed in the Federal Circuit Court under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal, dated 29 October 2015 where the AAT affirmed a decision by a delegate of the first respondent not to grant the appellant's Student (Temporary) (Class TU) Subclass 572 visa.

2. It had been argued before the Federal Circuit Court that the AAT's decision involved jurisdictional error in that it had ignored relevant material and relied upon irrelevant material, in such a way that the AAT's exercise or purported exercise of power was thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to it under the Migration Act 1958.

3. The learned judge has erred at law in failing to determine that the decision of the AAT was affected by jurisdictional error because the AAT failed to have regard to relevant matters and took account of irrelevant matters in affirming the decision not to grant the appellant's visa.

4. The learned judged has erred at law in failing to provide written reasons for dismissing the appellant's application.

22    I agree with the Minister’s characterisation of grounds 1, 2 and 3 of the draft notice of appeal as being concerned with whether or not the primary judge erred by not holding that the Tribunal fell into error on the basis that it either considered irrelevant considerations, or failed to consider relevant considerations.

23    There is nothing from the reasons of the Tribunal that suggest that these grounds would enjoy any prospect of success on appeal. The primary judge did not err in holding that the Tribunal applied the correct version of cl 572.223, and had regard to the relevant consideration set out in that clause to determine whether the applicant was a genuine applicant for entry and stay as a student. It formed a view reasonably open to it on the evidence. Further, the Tribunal’s findings with regard to cl 572.222 were directed to the relevant consideration of whether the applicant had provided the Tribunal a certificate of enrolment related to him undertaking a relevant course of study.

24    In his submissions before this Court, the applicant submits that the gaps in his studies were caused by his wife’s and his own medical conditions. The Tribunal took note of this submission where, at [22] of its reasons, it said the applicant “acknowledged that he had spent more time dealing with his own health and his wife’s pregnancy and other personal problems than studying since 2009”. The applicant was invited to put evidence before the Tribunal (which he did) and the reasons show genuine consideration by the Tribunal of the totality of evidence before it in reaching its final view.

25    The applicant did not identify any irrelevant considerations taken into account by the Tribunal. Further, there is nothing in the reasons of the Tribunal to suggest that it relied on irrelevant material.

26    Ground 4 of the draft notice of appeal has no basis. Extempore reasons were delivered by the primary judge on 1 May 2017 and were published on 5 June 2017. There is no error to this approach, being one that is commonplace in judicial review applications of this kind in the Federal Circuit Court.

27    In his submissions, the applicant states that he now has funds to engage a lawyer to represent him, if the extension of time and leave to appeal is granted. Even if the applicant were to engage legal representation, I can detect no error in the approach or reasons of the Tribunal or primary judge that would mean the applicant could mount an appeal that would enjoy any reasonable prospects of success.

28    For these reasons, the application for an extension of time in which to file and serve an application for leave to appeal should be dismissed with costs.

Associate:

Dated:    15 December 2017