FEDERAL COURT OF AUSTRALIA

Tonmoy v Minister for Home Affairs [2019] FCA 145

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 28 September 2018 be dismissed.

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

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

REASONS FOR JUDGMENT

(Revised from transcript)

YATES J:

1    The applicant seeks an extension of time and leave to appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 13 September 2018, which dismissed the applicant’s application to reinstate his proceeding in the Circuit Court, which had been dismissed on 6 August 2018 for want of appearance by him. The primary judge was not satisfied that the applicant had proffered a satisfactory explanation for his failure to appear on 6 August 2018 or that the sole ground of judicial review advanced by the applicant raised any arguable case of jurisdictional error.

2    In this latter regard, the proceeding commenced by the applicant in the Circuit Court sought judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal affirmed the delegate’s decision because the applicant did not satisfy the mandatory requirements of cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) that, at the time of the decision, he be enrolled in a course of study.

3    In this connection, the Tribunal recorded at [10] – [11] of its Decision Record:

10.    The applicant gave evidence during the hearing that he is not currently enrolled in a course or otherwise undertaking study in Australia. He said he ceased study in a Diploma of Accounting in or around December 2016 and that he has not studied or enrolled in any course since that time. He said he initially studied a graphics course in Australia but then realised this sort of qualification would not greatly enhance his future employment prospects in his home country. He said he has tried different courses and he hopes he can be given the opportunity to complete some sort of course before he returns to his home country, but that he has felt quite lost and unsure what to do for some time. The applicant said his mother has provided him with significant financial support whilst he has been in Australia and that he wants to complete another course so that he has something to show for the time he has spent here since 2011.

11.    The Tribunal accepts the applicant has felt unsure as to what vocational direction he should take and that this has contributed to his non-completion of courses and his feeling lost. However, on the basis of the available evidence the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

4    In his application for judicial review in the Circuit Court, the applicant sought to rely on a single ground, expressed as follows:

The Tribunal failed to exercise its discretion by failing to consider all aspects of my claims.

5    As the primary judge correctly observed, this bare assertion does not identify any jurisdictional error when considered with the reasons given by the Tribunal for affirming the decision under review.

6    Leave to appeal is required in this Court because the Circuit Court’s refusal to reinstate the dismissed proceeding is an interlocutory judgment: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

7    As events have transpired, an extension of time is also required because an application for leave to appeal must be filed within 14 days after the date on which the relevant judgment was pronounced: r 35.13 of the Federal Court Rules 2011. The applicant’s application for leave to appeal was filed on 28 September 2018, 15 days after the date on which the judgment was pronounced. I will treat his application for leave to appeal, filed under r 35.12, as an application to extend time and for leave to appeal filed under r 35.14.

8    The applicant’s application to this Court for an extension of time and for leave to appeal is supported by the applicant’s affidavit affirmed on an unspecified date, but filed on 28 September 2018. In that affidavit, the applicant annexed a copy of the Circuit Court’s order made 13 September 2018 and stated:

I believe that my case has enough merit to be considered.

9    No explanation is proffered for the delay in filing the application for leave to appeal but this may be because the applicant did not know that an extension of time is required.

10    The affidavit also physically annexes, but does not refer to, a draft notice of appeal. The draft notice of appeal contains three grounds, expressed as follows:

1.    The Court below erred in finding that the Administrative Appeals Tribunal (AAT) had failed to properly consider the Appellant's application.

2.    The Tribunal failed to put 'information' under Section 359 A of the Migration Act. The Tribunal noted that the applicant failed to enrol in the course. It seems that the Tribunal must have checked this information from the Tribunal file. The Tribunal failed to put that information under Section 359.

3.    The Tribunal failed to ask relevant questions and failed to assess applicant's situation whether there are any compelling grounds exist in the case for not enrolling in the course.

11    None of the proposed grounds of appeal concern findings by the Tribunal or aspects of the Tribunal’s review function that were raised for judicial review in the proceeding below.

12    On 15 November 2018, the applicant was ordered to file and serve, by 10 business days before the hearing of the present application, a written outline of submissions upon which he seeks to rely in support of his application, and in support of any appeal were the Court to grant an extension of time and/or leave to appeal, so that the Court can assess whether there is any utility in granting the extension of time and/or leave to appeal. The applicant has not complied with this order. Further, the applicant has not appeared today when the application was called on for hearing.

13    I am not persuaded that leave to appeal should be granted, essentially for the reason that granting that leave would lack utility because the proposed appeal has no real prospect of success.

14    First, the applicant has not directly engaged with the question whether the primary judge erred in dismissing the reinstatement application. As I have noted, the reinstatement application was dismissed because the applicant did not provide a satisfactory explanation for his failure to appear on the earlier occasion and the ground of review he was seeking to advance did not raise an arguable case of jurisdictional error in the Tribunal’s decision. It is necessary for the applicant to identify appealable error in that judgment. He has not done so by his draft notice of appeal.

15    Secondly, as I have said, none of the proposed grounds of appeal concern findings by the Tribunal or aspects of the Tribunal’s review function that were raised for judicial review in the proceeding below.

16    Thirdly, as the Minister has correctly submitted, the first proposed ground of appeal is, in any event, nonsensical. It erroneously misstates the primary judge’s finding and asserts an error which, if found, would defeat the appeal. Even if I were to take the first proposed ground of appeal to be an attempt to allege that the primary judge erred in failing to find that the Tribunal failed to consider properly his application for review, it does not identify how or in what respects the Tribunal failed to consider, properly, the applicant’s application for review.

17    Fourthly, the second proposed ground of appeal alleges that the Tribunal failed to put information to the applicant as required under s 359A of the Migration Act 1958 (Cth) (the Act)—namely, the fact that he “failed to enrol in the course” (that is, was not enrolled in a course). As the second proposed ground of appeal makes clear, the applicant’s theory is that the Tribunal checked information from its file and did not put that information to the applicant. This proposed ground of appeal is misconceived because, as the Minister submits, the Tribunal’s Decision Record shows that it was the applicant who informed the Tribunal that he was not currently enrolled in a course or was otherwise undertaking study in Australia. The Tribunal was not required to put to the applicant information which, in fact, the applicant put to the Tribunal: s 359A(4)(b) of the Act. Further, I accept the Minister’s submission that the Tribunal’s express reliance on the applicant’s evidence in the absence of any reference to other documentation (as alleged by the applicant) in the Decision Record supports the contention that no other information, aside from the applicant’s oral evidence, was the reason, or part of the reason, for affirming the decision under review.

18    Fifthly, the third proposed ground involves the notion that it was relevant for the Tribunal to consider whether there were “compelling grounds” for the applicant not enrolling in a course of study. However, the simple fact is that the applicant could not establish the mandatory requirements for the visa he was seeking. The Tribunal had no power to waive those requirements on the basis of “compelling grounds”. Accordingly, it was no part of the Tribunal’s duty to make the enquiries the applicant said it should have made. In any event, in so far as the third proposed ground alleges a failure to assess the “applicant’s situation” in this regard, the Tribunal did, in fact, consider the “applicant’s situation”, and made the findings I have quoted above.

19    The applicant has not identified appealable error in the judgment from which he seeks leave to appeal and the proposed grounds of appeal, even if allowed to be raised, have no real prospect of success.

20    As the grant of leave to appeal would lack utility, so too would extending time to allow the application for leave to appeal to be brought, even though the applicant’s delay in seeking leave to appeal is minimal.

21    The present application will be dismissed with costs.

Associate:    

Dated:    21 February 2019