Bolla v Minister for Immigration and Border Protection

1. The application for an extension in which of time is dismissed.
2. The first and second applicants 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.

NORTH J: 1 Before the Court is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court on 30 August 2017. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 23 December 2015. The Tribunal affirmed the decision of a delegate of the first respondent, Minister for Immigration and Border Protection, to refuse to grant the first applicant a Student (Temporary) (Class TU) Subclass 572 visa. 2 The applicants seek an extension of time because the application to appeal was not made until six days after the due date. 3 On an application for leave to appeal, the matters which are relevant are whether there is a reasonable explanation for the delay, whether the other parties would suffer prejudice by an extension time, and, importantly, whether the grounds of proposed appeal have a reasonable chance of success. I have formed the view that there is no reasonable basis for the proposed appeal, and hence it is not necessary to consider the other two matters, although the first respondent does not suggest that he would suffer prejudice by the grant of leave. 4 The first applicant came to Australia in 2008, to study to be a hairdresser. The subsequent history of her stay in Australia was described by the Tribunal as follows: 7. You came to Australia to study as a 31-year-old in 2008 and you say you came here to study to be a hairdresser. 8. Since that time you have completed a packaged course of a Certificate III and a Diploma of Hairdressing. You say you have done a Diploma of Business and I believe there is evidence of that on file. You say you have completed a Bachelor of Information Technology, there is no evidence before the Tribunal of such studies however I accept your word that you have studied that course. 9. Having completed the diploma of business you moved to Bendigo or Kangaroo Flat because you had a job there as a hairdresser and you hoped that you would be able to achieve permanent residence through an employer up there but unfortunately for you it did not happen. The Tribunal considers that when someone on a student visa gets a job and applies for permanent residence, it raises significant questions about whether they are a genuine students [sic] or not. 10. You then choose to study a Diploma of Beauty Therapy in a course that was originally scheduled to run between 28 April 2014 and 14 August 2015. 5 The Tribunal indicated that, when the student visa application was refused on 17 November 2014, the first applicant stopped the course she was undertaking for a Diploma of Beauty Therapy. However, by the time of the Tribunal hearing, she had re-enrolled in that course. The Tribunal then stated the issue before it as, "Whether or not you are a genuine student". The Tribunal dealt with that matter as follows: 18. In consideration whether someone is a genuine student we need to consider factors detailed in Ministerial Direction No 53, which provides guidelines for assessing whether applicants meet the genuine temporary entrant criteria. 19. In the process we look at your background, your study history, your immigration history, what you say you wish to study et cetera et cetera. 20. You have studied a number of courses that would appear to be unrelated. Particularly for someone who claims they want to be a hairdresser, the Tribunal sees no reason why you would have studied a Bachelor of Information Technology. When I ask you the reason, you provided no answer. 21. The Tribunal finds that choice and the timing of your studies to lack consistency which leads the Tribunal to find your studies are not leading towards a career plan but rather are ad hoc and designed to maintain ongoing residence in Australia. 22. When asked why you don't do your proposed studies at home in India you provided no answer. 23. Having considered all the evidence including your study history, the value of your proposed course to your future, your circumstances, immigration history and other relevant matters the Tribunal is not satisfied you are a genuine applicant for temporary entry and stay as a student in Australia. It is therefore the decision of this Tribunal to affirm the decision under review. 6 The first applicant then filed an application of review in the Federal Circuit Court. She specified one ground of review, namely, "The Tribunal has failed to consider all of the evidence before it, in reviewing the decision of the delegate". 7 What occurred in the Federal Circuit Court was unusual, and was recorded by the Federal Circuit Court judge as follows: 16. The Second Applicant [who spoke on behalf of himself and his wife, the first applicant] was then asked to explain to the Court what evidence the Tribunal failed to consider, and what was wrong with the Tribunal's decision. 17. The Second Applicant told the Court that there was nothing wrong with the Tribunal decision. In circumstances where I was somewhat surprised by this submission (given that it is an application for judicial review), I confirmed with the Second Applicant that was what he said. The Second Applicant confirmed his view was that there was nothing wrong with the Tribunal decision. The Second Applicant went on to explain that the Applicants did not want to live permanently in Australia, but wanted to remain in Australia until their son, who is 18 years old, finishes his education, following which they wished to return to India because their families live there and they own properties in India. 18. I asked the Second Applicant whether there was anything else that he wished to tell the Court, and he said there was not. 19. Given the oral submission of the Second Applicant, the Court can only find that there is no jurisdictional error affecting the Tribunal's decision. 20. The basis of the oral submission, which is in effect, that the Applicants are utilising the review process to prolong their stay in Australia to enable their son finishes his education, can never be a ground for judicial review. 8 Having properly identified that the basis upon which the first applicant brought the review could not succeed, because there was no allegation of jurisdictional error, the Federal Circuit Court, nonetheless, examined a number of potential grounds which the Minister, acting as a model litigant, identified as potential grounds of judicial review. The Federal Circuit Court then, having considered those potential grounds, held that none were sustainable, and ordered that the application be dismissed. 9 On 25 September 2017, the applicants filed the present application together with a proposed notice of appeal which, relevantly, stated: 1. That pending the preparing of Reasons of Judgement by the Federal Circuit Court Judge the applicant be granted leave to appeal. 2. That leave be granted to amend the Application for leave filed herein once the reasons of judgement of the learned Judge are made available to the Applicant. 3. That His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223 (1) (a) and clause 572.223(2)(b)(ii) Migration Regulations 1994 Particulars a. The Tribunal erred in not considering cl 572.223(a) b. His Honour erred in not referring and applying clause 573.223(2)(b)(ii) any other relevant matter when clearly the applicant's circumstances and facts demands that the said clause be invoked in his favour c. The delegate misconstrued clause 572.224 in finding that the appellant did not comply with public health criteria when in fact the appellant's appointment with the health provider Bupa was not within the appellant's control. The appointment with Bupa on 3 September 2014 was cancelled by Bupa. d. The Tribunal erred in not applying the facts when considering the cl 572.223 e. That the learned Judge erred in not considering the delegate considered information which was not put to the applicant. 4. His Honour the Federal Circuit Court Judge erred in not looking closely at the structure of Tribunal's reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. 5. That the Judge erred in dismissing the appellant review application without considering the merits of the case. 6. The appellant's application clearly raises an arguable case. 10 The course of the hearing of this application followed the same pattern as in the Federal Circuit Court. The first applicant was asked to identify the mistake made by the Tribunal or the Federal Circuit Court and, again, indicated that that was not her concern. Rather, she indicated that her purpose in seeking the visa was to remain in Australia until her son had completed his studies. She did not elaborate on the grounds of appeal stated in the draft notice of appeal. 11 The proposed grounds of appeal are grounds which were not agitated before the Federal Circuit Court and, therefore, the applicant would require leave in order to advance them on an appeal. It would, however, be futile to grant leave for the purpose of agitating those grounds, because there is no reasonable chance that they would succeed. 12 The first ground, referred to in ground 3 of the proposed notice of appeal, alleges that the Tribunal failed to consider the cl 572.223(1)(a) and cl 572.223(2)(b)(ii) of the Migration Regulations 1994 (Cth). It is evident from the decision of the Tribunal that this ground cannot be made out. The Tribunal referred specifically to the clauses and, in its conclusion at [23] extracted earlier, made findings in relation to each of the relevant matters under the regulation. 13 In relation to the ground set out in ground 4 of the proposed ground of appeal, it is difficult to see how the case of Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 is relevant to the circumstances of this case. That case concerned whether the Tribunal had genuinely dealt with the issue of general deterrence required to be considered, in relation to a visa cancellation. This ground is, perhaps, a variation of the allegation in proposed ground 3, that the Tribunal did not have regard to the factors to which the regulation is directed. 14 The final two proposed grounds of appeal are expressed in such general language that they do not allow for any understanding of any error made by the Tribunal. 15 As the proposed grounds of appeal have no reasonable chance of success, an extension of time within which to institute an appeal should be refused. The application is dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.