FEDERAL COURT OF AUSTRALIA

Sekhon v Minister for Immigration and Border Protection [2018] FCA 1821

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The Applicant pay the First Respondent’s costs of the application fixed at $1,756.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the applicant, Pawandeep Singh Sekhon, seeks leave to appeal from the judgment of the Federal Circuit Court (FCC) in Sekhon v Minister for Immigration and Border Protection & Anor [2018] FCCA 1984. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 July 2017. The Tribunal had affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Student (Temporary) (Class TU) visa (the student visa) under the Migration Act 1958 (Cth).

2    For the reasons I explain, leave to appeal must be refused.

THE FACTS AND PROCEDURAL HISTORY

3    The factual background and procedural history is uncontentious:

the applicant is a 28 year old Indian male who first arrived in Australia in 2009;

on 1 December 2015, the applicant applied for a student visa, but provided no evidence that he satisfied the English language proficiency or the financial capacity requirements for such a visa. At the time he was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality;

on 8 December 2015 the Department of Immigration and Border Protection (the Department) sent the applicant a letter requesting that he provide further information within 28 days including evidence of his English language proficiency and financial capacity;

on 26 February 2016 the applicant’s representative requested an extension of time to provide the required documents. On 3 April 2016, the applicant’s representative stated that he was still waiting for documents from the applicant. In the finish, the applicant did not submit any such evidence to the Department;

on 18 August 2016 a delegate of the Minister refused to grant the student visa. The delegate found that the applicant did not meet the ‘English language proficiency’ or the ‘financial capacity’ requirements under cl 572.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the grant of a student visa;

on 7 September 2016 the applicant applied to the Tribunal for a de novo review of the delegate’s decision; and

on 24 April 2017 the Tribunal invited the applicant to appear at a hearing on 11 May 2017 and requested the applicant to provide further information to the Tribunal has at least seven days before the hearing, including documents demonstrating his English language proficiency and financial capacity.

The Tribunal decision

4    On 11 May 2017 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal decision records that the applicant did not respond to the invitation to produce evidence and instead did not submit any of the requested information. At the hearing he submitted that there was a gap in his studies and he had problems with his family but was now studying and attending classes. The applicant accepted that he had not provided any evidence of English language proficiency and requested time to book in an English language proficiency test which he could complete if given time, and if given further time he would also be able to provide evidence of financial capacity.

5    In an oral decision delivered on the day, published in writing on 3 July 2017, the Tribunal found that the applicant had been given ample opportunity to provide the required evidence of English language proficiency and financial capacity but had failed to do so. The Tribunal was not satisfied that he met the requirements of cl 572.223 of Schedule 2 to the Regulations and it affirmed the delegate’s decision not to grant the student visa.

The FCC decision

6    On 6 June 2017 the applicant made an application for judicial review of the Tribunal’s decision. The application alleged various grounds which the primary judge set out (at [4]). They are fairly summarised as contending that the applicant was a ‘genuine student’ and that the delegate and the Tribunal misunderstood the definition of ‘genuine student’ in the Regulations.

7    The FCC listed the application for a show cause hearing on 10 July 2018. Following a hearing on that date the primary judge found that:

(a)    the applicant was required to satisfy cl 572.223 of Schedule 2 to the Regulations, which includes the requirement to show English language proficiency and financial capacity, and was required to provide evidence to demonstrate his ability to meet those requirements (at [5]). I should note that in setting out paragraph 25 of the Tribunal decision the primary judge misstated the decision, but the substance of the primary judge’s account of the Tribunal decision remains accurate;

(b)    the Tribunal had invited the applicant to provide evidence of meeting the English language proficiency and financial capacity requirements, but he had not done so (at [6]-[9]);

(c)    the applicant conceded that the Tribunal was correct in stating that he had not provided evidence to the Tribunal to show that he met the English language proficiency and financial capacity requirements (at [9]); and

(d)    while the applicant submitted that “he had some advice from his lawyer and that advice was either bad, or he did not understand that advice”, there was nothing before the FCC to suggest fraud of any kind that may affect the matter (at [10]).

8    The primary judge was not satisfied that the applicant had raised an arguable case for relief and dismissed the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

9    As the dismissal of an application at a show cause hearing under r 44.12 is interlocutory in nature, the applicant requires leave to appeal from the judgment of the FCC below: see rr 44.12(1)(a) and 44.12(2); Federal Court of Australia Act 1976 (Cth) s 24(1A); SZTVU v Minister for Home Affairs [2018] FCA 1394 (SZTVU) at [25] (Perry J).

The application for leave to appeal

10    On 19 July 2018 the applicant applied for leave to appeal to this Court. In an affidavit in support the applicant expressed the grounds of appeal as follows (omitting grammatical and spelling errors):

The learned judge in the Federal Circuit Court erred in law and therefore fell into jurisdictional error by failing to properly consider the evidence before them:

Particulars

(i)    Taking into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by the regulations;

(ii)    Summarily dismissing and discounting the evidence presented by the Applicant;

(iii)    Failing to consider the evidence of the Applicant in totality and cumulatively;

(iv)    Failing to properly and/or adequately investigate and assess the claims of the Applicant;

(v)    Failing to take into account relevant evidence and/or took into account irrelevant evidence;

(vi)    Displaying bias towards the Applicant.

11    While the grounds only allege errors by the primary judge, it is plain that they are also aimed at the Tribunal hearing and decision. I will address the grounds on that basis.

RELEVANT PRINCIPLES

Leave to appeal

12    For leave to appeal to be granted, the applicant must show there is sufficient doubt as to the correctness of the judgment below to warrant review; and that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 (Sheppard, Burchett and Heerey JJ); Re CSR Limited (2010) 183 FCR 358; [2010] FCAFC 34 at [5] (Keane CJ and Jacobson J).

13    The judgment of the FCC is effectively final in so far as the applicant is concerned, and in these circumstances a prima facie case for granting leave to appeal is sufficient: Duncan v Secretary, Department of Family and Community Services (2007) 9 ALD 241; [2007] FCA 507 at [18] (French J); SZTVU at [28] (Perry J). In considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal and should “assess ‘the merits’ in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [9] (Brennan CJ and McHugh J).

Fresh grounds of appeal

14    None of the proposed grounds of appeal were advanced before the FCC. The grounds of the application below centred on the contention that the Tribunal had misunderstood the definition of ‘genuine student’ in the Regulations and the applicant was a ‘genuine student’.

15    It is fundamental to the due administration of justice that the substantial issues between the parties are settled at first instance, otherwise the main arena for the resolution of disputes would move from the Court of first instance to the appellate court: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). It is however settled that where it is expedient and in the interests of justice an appellate court may allow a point to be raised for the first time in an appeal: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). In deciding whether it is expedient and in the interests of justice to grant leave to raise a fresh ground of appeal it is relevant to consider the merits of the proposed ground where there is no adequate explanation for the failure to take the point below, and it seems to be of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (Kiefel, Weinberg and Stone JJ).

CONSIDERATION

16    The applicant was not legally represented, he did not file written submissions, and he made limited oral submissions. While I take that into account, there was nothing in his submissions capable of establishing the proposed grounds of appeal.

Particulars (i) and (v) of the grounds

17    Under these grounds the applicant alleges that the Tribunal and/or the primary judge took into account irrelevant matters, information or evidence or failed to take into account relevant evidence. I pressed the applicant as to the matters, information or evidence to which he referred and he offered nothing.

18    There is no merit to these grounds. The Tribunal was required to consider whether the applicant provided evidence of meeting the English language proficiency and financial capacity requirements under cl 572.223 of Schedule 2 to the Regulations. It invited the applicant to provide such information and he did not do so (as he conceded before the primary judge and before me). Such matters were plainly relevant to the Tribunal’s task. Nor can it be said that the FCC took irrelevant matters into account or failed to consider relevant matters. The primary judge’s decision is also, correctly in my view, based on the applicant’s failure to provide the required evidence.

Particulars (ii) to (iv) of the grounds

19    Under these grounds the applicant alleges that the Tribunal discounted the evidence he presented, did not consider it in totality and cumulatively, and did not properly or adequately investigate or assess his claims. I pressed the applicant in relation to the Tribunal’s approach to his evidence and he could not point to anything specific.

20    There is no merit to these grounds. The Tribunal considered the applicant’s submissions that there was a gap in his studies, and that he had problems with his family, but he was now studying and attending classes. It considered his request for further time to book an English language proficiency test and further time to provide evidence of financial capacity. The applicant made some similar submissions before me. The applicant’s failure to respond to the Tribunal’s request for such information was fatal to his application. These grounds cannot succeed.

21    Nor, to the extent these grounds relate to the judgment below, can it be said that the primary judge was wrong in holding that the Tribunal did not fall to jurisdictional error. Before the primary judge the applicant conceded that he had failed to provide evidence to the Tribunal that he met the English language proficiency and financial capacity requirements. The primary judge did not err in dismissing the application.

Particular (vi)

22    Under this ground the applicant alleges either bias or apprehended bias.

23    There is no merit to this ground. Any such allegation must be distinctly made and clearly proved: Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69] (Gleeson CJ and Gummow J). In submissions the applicant offered nothing capable of making out this allegation, and there is nothing in the Tribunal decision or the judgment below to indicate actual or apprehended bias.

CONCLUSION

24    Having regard to the lack of merit of the proposed grounds of appeal the application to rely on fresh grounds of appeal should be refused. In the absence of any grounds of appeal the application for leave to appeal must fail.

25    Even if, contrary to my view, it is appropriate to grant leave to advance the fresh grounds of appeal, I would refuse leave to appeal. Having regard to those grounds there is insufficient doubt to warrant a grant of leave and, if the judgment below is assumed to be wrong, there is nothing to show that the applicant would suffer substantial injustice by refusal of the student visa.

Associate:

Dated:    21 November 2018