FEDERAL COURT OF AUSTRALIA

Brahmbhatt v Minister for Immigration and Border Protection [2019] FCA 730

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The Applicant pay the First Respondent’s costs of the application fixed in the sum of $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, Naimish Bipinchandra Brahmbhatt, seeks an extension of time within which to bring an appeal from a judgment of the Federal Circuit Court which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 June 2016. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (visa).

2    The application was listed for hearing of both the extension of time application and the appeal itself, but the applicant was not ready to deal with the appeal because he said he had not yet engaged a lawyer. He was, however, ready to deal with the application for an extension of time and the matter proceeded on that basis.

3    In my view the applicant provided a sufficient explanation for his short delay in filing the application but there is no merit in his appeal. I consider that granting an extension of time would therefore be futile and it is appropriate to dismiss the application.

The background facts and procedural history

4    The applicant did not contend that the Tribunal’s recitation of the background facts was incorrect, and I have drawn the following from the Tribunal’s decision and from the other materials before me.

5    The applicant is a citizen of India who arrived in Australia on 31 January 2009. As the Tribunal recorded, since arriving in Australia he has completed the following courses: a Certificate IV in Spoken and Written English; a Certificate III in Printing and Graphic Arts; a Certificate IV and a Diploma in Business; a Diploma and Advanced Diploma of Accounting; a Diploma of Management; and a general English course. Throughout the period in which the applicant undertook those courses, he held a student visa or a bridging visa with a study permit.

6    On 31 December 2014, the applicant applied for the visa which is the subject of this application. He said that he intended to complete a Certificate IV Diploma of Marketing which was to be undertaken between August 2014 and August 2015, and an Advanced Diploma of Marketing which was to be undertaken between August 2015 and July 2016. He did so in circumstances where he already held a Bachelor of Commerce from India, and he had previously enrolled in an Advanced Diploma of Management (to be undertaken between September 2013 and March 2014) and a Certificate IV Advanced Diploma of Marketing (to be undertaken between August 2014 and the Tribunal hearing) but he did not pay the fees and his enrolments were cancelled.

7    The applicant’s uncle has about 25 acres of agricultural land in Gujarat in India. The applicant claimed that he was close to his parents and he wished to return after his studies to care for them and to start his own agricultural business, assisting his uncle to expand the family business. He said he was undertaking VET level courses because they were in keeping with his skill set and ability to study in Australia, the courses were practical, and he did not need a Bachelor level qualification. The applicant maintained that all of his studies had been to assist him to achieve his goals of expanding the business in India and will assist him in initiating and managing his business and accounts.

8    On 2 January 2015, the Department of Immigration and Border Protection wrote to the applicant seeking that he provide a further statement of information. In the request for the information, the Department said the following:

You have been onshore since 31/01/2009 and have only departed twice since arriving. While onshore you have held a variety of low value and inexpensive enrolments in English, Painting and Graphic Arts, Business, Accounting, Management and Marketing and now have provide[d] further enrolments in Marketing after not commencing these studies on your previous visa. Why did you not study marketing previously when you held enrolments in these courses? What value is marketing to your future? Why are you not pursuing a qualification at a higher level? I am concerned that you are undertaking short, inexpensive and unrelated course[s] to extend your residency in Australia and that you are not a genuine student.

9    On 23 January 2015, the applicant provided a statement which addressed a variety of topics under the headings “Profile”, “Economic and Personal Ties”, “Short Overseas Visit”, “Career Plan”, “Variety of Low and Inexpensive Enrolment”, “Reason for Choosing Marketing Course”, “Reason for Discontinuing the Marketing Course in 2014”, “Reason for Choosing Harward International College”, “Reason for Choosing to Study in Australia rather than India”, “Living Arrangements in Australia” and “Relevance of My Previous Courses to My Intended Courses”.

10    On 10 February 2015, a delegate of the Minister refused to grant the applicant a visa. The delegate was not satisfied that the applicant satisfied the criterion in clause 572.223(1)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). That clause provided that:

(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.

11    In summary, the delegate said that she considered the applicant’s extensive stay on temporary visas, along with his enrolment in short courses at the same level and in the same sector, demonstrated a lack of interest in academic progression and suggests that the applicant was using the student visa program to maintain residence in Australia.

12    The delegate was not satisfied that the courses would add value to the applicant’s career plans to operate an agricultural business. Further, the delegate considered his previous completion of a Bachelor degree indicated he was capable of higher level study and his decision to enrol in another English course after five years of studying in Australia, combined with his enrolment in Certificate IV level course, indicated that he was using the student visa program to maintain residence in Australia.

13    The delegate also considered that another reason for the applicant to stay in Australia was that his brothers were living here. The delegate concluded that:

Overall, given your lack of academic progress, your study history, your potential circumstances in Australia, your immigration history and the lack of value of the courses to your future, I find you are using the Student visa program to circumvent permanent migration programs, and I am not satisfied that you are a genuine applicant for entry and stay as a student, and that you intend to stay in Australia temporarily.

14    On 2 March 2015, the applicant applied to what was then the Migration Review Tribunal for merits review. He was invited to provide further materials and a statement addressing whether he was a genuine temporary entrant by express reference to Ministerial Direction Number 53 (Direction 53). The applicant appeared at the hearing on 9 March 2016 accompanied by his migration agent. On 15 March, the applicant put forward further materials and submissions. On 3 June 2016, the Tribunal decided to affirm the delegate’s decision and provided detailed reasons in that regard.

The Tribunal Decision

15    The Tribunal identified that the issue on review was whether the applicant satisfied clause 572.223(1)(a) of Schedule 2 to the Regulations, and observed that it was required to have regard to Direction No 53 in assessing whether the applicant had done so. It noted that the clause was not a checklist, but was intended to guide the decision-maker to weigh up a visa applicant’s circumstances holistically. The Tribunal then identified the materials before it. Having regard to the factors specified in Direction 53 and the evidence before it, the Tribunal was not satisfied the applicant genuinely intended to only stay temporarily in Australia.

16    It set out reasons for that conclusion under three separate headings: (a) the applicant’s circumstances in his home country, potential circumstances in Australia, and the value of the course to the applicant’s future; (b) the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries; and (c) any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

17    It is unnecessary to set out the Tribunal’s findings in detail. It suffices to note that the Tribunal found that:

(a)    the applicant’s claims that he wanted to engage in a Master’s degree in the future to be implausible (at [31]);

(b)    his reasons for undertaking so many low level courses and failing to progress academically were unconvincing and, at times, implausible (at [35]);

(c)    his oral evidence conflicted with the material he gave to the department about his intentions (at [36]); and

(d)    overall, his evidence was unconvincing (at [37]).

18    The Tribunal concluded at [39] as follows:

The tribunal has considered the totality of the applicant’s circumstances, including his explanations and evidence, but finds that the fact of the applicant’s long period in Australia, his study history in low level courses of little apparent benefit to his future, at an inferior level to his previous study, along with his expressed desire to remain in Australia to continue to study, indicate that the student visa program was being used by the applicant primarily to maintain residence in Australia and to circumvent the intentions of the student visa migration program.

19    The Tribunal was therefore not satisfied that the applicant genuinely intends to stay in Australia temporarily, and it was not satisfied that the applicant met cl 572.223(1)(a).

The Federal Circuit Court Decision

20    On 4 July 2016, the applicant sought judicial review of the Tribunal’s decision. He set out the grounds for review in an affidavit in support of that application. The application was heard on 30 October 2018. The applicant did not have legal representation in the hearing.

21    The applicant advanced the following grounds of review:

(a)    because he was nervous at the Tribunal hearing, he failed to properly explain his reasons for undertaking further studies, how the Advanced Diploma of Marketing would help him in the future, how the course was relevant to managing his uncle’s agricultural business, and his further study and career aspirations in that regard;

(b)    the Tribunal was wrong in deciding that the proposed Advanced Diploma of Marketing would not add value to his career plans to engage in agricultural business. He said he only intended to look after the marketing, accounting and other operational activities of that business;

(c)    he disagreed that he had a lack of interest in academic progress which he said he had shown by passing numerous courses;

(d)    it was unfair to stop him from studying further courses at the same level and sector;

(e)    he was nervous at the hearing and failed to properly explain his intention to undertake a Master’s degree. He wanted to explain that if he successfully passed the Advanced Diploma of Marketing, he intended to undertake an MBA at Holmes Institute; and

(f)    he strongly objects to the Tribunal’s conclusion it was not satisfied that he intended only to a stay in Australia temporarily, and he had never overstayed any of his visas.

22    The primary judge dismissed the application and published ex tempore reasons: Naimish Bipinchandra Brahmbhatt v Minister for Immigration and Border Protection [2018] FCCA 3636. His Honour observed at [2] that the applicant’s grounds for review were essentially just disagreements with the merits of the Tribunal’s decision, and noted at [3] that the applicant did not identify any failure by the Tribunal to consider his claims or any failure to undertake its statutory function.

23    The primary judge dismissed the application, concluding at [18] to [19] as follows:

In my view, there is no jurisdictional error apparent in the decision of the Tribunal. It has considered in detail the applicant’s evidence before the Tribunal and submissions made on his behalf by his representative.

There is no indication there has been any failure to accord procedural fairness, and the terms of the decision do not indicate that there is any irrational or illogical thought processes being applied by the decision-maker.

The Appeal To This Court

24    On 22 November 2018, the applicant filed an application for an extension of time within which to file an appeal, together with an affidavit providing an explanation for his failure to file the appeal within time. The draft notice of appeal raises the following two grounds of appeal:

1.    That the Federal Circuit Court committed an error of law while hearing and disposing the matter, without stating detailed reasons/grounds of dismissal in its order dated 30/10/2018 in relation to the judicial review application of the applicant.

2.    That the Federal Circuit Court failed to consider the issue of jurisdictional errors committed by the respondent no. 2 [being the Tribunal] while deciding the merits review application of the applicant/appellant.

25    As is immediately apparent, the grounds are exceedingly broad and unparticularised. Notwithstanding an order of this Court made 8 April 2019, which required the applicant to file submissions by no later than 10 days before the hearing date, he did not do so. The applicant came to the hearing having filed no submissions, with the appeal having been on foot for a period approaching six months, and not having instructed solicitors to act on his behalf. He sought an adjournment based on a lack of legal representation. It was clear from the applicant’s presentation, and he accepted, that he had decided to appear without legal representation at the hearing to seek an extension of time and would only appoint solicitors if he was successful in obtaining such an extension. He took that approach because of the cost involved in retaining a solicitor.

The application for an extension of time

26    The factors relevant to whether an extension of time should be granted include the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, and any relevant public interest considerations. Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 (Brennan CJ and McHugh J at 521-522, and Kirby J at 542-543).

27    In the circumstances of the present case, other than the merits of the appeal, each of the relevant factors point in favour of allowing an extension of time. Amongst other things, the delay is only one or two days. The applicant misunderstood the time limit for an appeal, which is understandable given that he is not legally trained or legally represented, and English is not his first language. He will suffer prejudice by being required to leave Australia if an extension of time is not granted, and the Minister did not contend that there was any prejudice to his interests if the application is allowed.

28    However, I can see no merit in the appeal and, in my view, allowing an extension of time would be futile. I readily accept that an application for an extension of time only requires an examination of the proposed grounds at a reasonably impressionistic level, and the Court should not descend into a full consideration of the arguments for and against each ground. The correct approach may be expressed by the use of language such as whether a ground is arguable, reasonably arguable, sufficiently arguable, or has a reasonable prospect of success: see MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] (Mortimer J), and MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ).

29    In my view it is not reasonably arguable that the Tribunal fell into jurisdictional error nor that the primary judge erred in failing to find jurisdictional error on the Tribunal’s decision. The application before the Federal Circuit Court essentially sought merits review of the Tribunal’s decision when the Court had no jurisdiction to entertain such a review. All of the applicant’s grounds merely express disagreement with conclusions the Tribunal reached, which conclusions were, in my view, plainly open on the evidence. The applicant was unable to point to anything other than disagreements with the merits of the Tribunal’s decision.

30    The applicant’s grounds before the Federal Circuit Court (which he said were the same grounds he intended to advance in the proposed appeal) took issue with the Tribunal’s conclusion that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily, which conclusion it reached because it found his evidence was conflicting in part, implausible and overall unconvincing.

31    Such findings are a function par excellence of the primary decision-maker, and should not lightly be disturbed, but they are not immune from appellate review merely by their nature: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J). Determinations on credibility and weight must still be made rationally and logically, and articulated properly: CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [62]. An irrational or illogical finding on the way to a final conclusion may establish jurisdictional error, provided that the finding is material or critical to the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [132] (Crennan and Bell JJ); Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55].

32    The applicant did not however contend that the Tribunal’s findings on the way to its ultimate conclusion, or the conclusion itself, was irrational or illogical. He merely disagreed with the findings and conclusions. I see nothing in the Tribunal’s decision to indicate that it is reasonably arguable that the Tribunal's conclusion, or its findings on the way to that conclusion, were such that no rational or logical decision-maker could reach that conclusion on the evidence: see SZMDS at [130]-[135]. In my view is plain that the Tribunal’s decision was open on the evidence.

33    It is appropriate to dismiss the application for an extension of time within which to appeal.

Associate:

Dated:    22 May 2019