Ghimire v Minister for Immigration & Border Protection

Federal Circuit Court proceedings 10 On 24 December 2013, the applicant's current solicitor, Mr Newman, filed an application for judicial review in the Federal Circuit Court. The sole ground of review pleaded in that application was based upon the proposition that the applicant had not undertaken 19 courses but rather 19 subjects in three courses and that the applicant's difficulties were caused partly by the collapse of Meridian College in 2009. The Minister, as I mentioned, applied for dismissal of the application under r 44.12 and the applicant's submissions in that context raised the same issues concerning the nature of the courses she had undertaken as well as the reasons for her changing courses for consideration. She had submitted that the Tribunal's misconception of the nature of her studies and the role of the collapse of Meridian College was, in effect, so unreasonable as to cause the Tribunal to exceed its jurisdiction in the sense discussed in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223. 11 The circumstances surrounding this submission were described by the applicant in the following way. The applicant attended Meridian College and paid for a "diploma of cookery course" in advance. Following the collapse of Meridian College her advance fees were lost and as a result she had arranged to take up other courses elsewhere. For this reason it superficially appeared that she was capricious and chopped and changed her courses and was not serious about her studies. She had paid $70,000 to that institution but had nothing to show for it despite establishing an unenforceable entitlement to certain certificates in the various course subjects. Rather than take pity on the student she was condemned (by the Tribunal) because she undertook replacement courses, which were a Diploma and an Advanced Diploma of Business (as a prelude to a Bachelor's Degree in Business and Finance). This was what the applicant contends constituted 'Wednesbury unreasonableness' in the Tribunal's approach as well as the Tribunal's abandonment of fairness required of tribunals under s 353 of the Act. 12 The applicant complains that her explanations as to her conduct following the collapse of Meridian College (she said that she had problems re-adjusting and that she 'panicked' and did not know what to do because she was flummoxed), although referred to in the decision, were effectively ignored. The applicant points to the Tribunal's finding that she did not explain why she did not immediately transfer to other courses after the college's collapse. She submits that this was erroneous and that she did explain that she had panicked. 13 In support of the Minister's application for dismissal, his solicitor filed an affidavit which annexed the relevant PRISMS records relied upon by the Tribunal. This disclosed that: (a) her enrolment in the three courses she specified in her application for the Visa had been cancelled on 27 July 2012 for non-commencement of studies; (b) her then only current course of study was a Diploma in Business, for the period of 4 November 2013 to 4 May 2014; (c) since her arrival in Australia on 16 September 2008, she had been enrolled in 19 courses and of those 14 were shown as having been cancelled and only 3 were shown as having been finished; and (d) a significant number of the enrolments had been for short and inexpensive courses and several involved fields of study in hospitality. 14 On 21 May 2014, the primary judge held that this ground of review was not arguable at [24] as follows: The applicant had an opportunity to take up [the matters now relied upon] as they were specifically referred to in the letter pursuant to s.359A from the MRT. The applicant declined to do so. In the circumstances, there is nothing on the face of the MRT's decision record to suggest that its finding were not open to it on the evidence and material before it and for the reasons it gave. The submission by Mr Newman that the MRT's findings were affected by Wednesbury unreasonableness has no, or no reasonable, prospects of success.

Application for an extension of time and leave to appeal - relevant principles 15 The principles generally governing applications for leave to appeal are well established, namely whether, in all of the circumstances of the case, the decision in respect of which leave to appeal is sought is attended by sufficient doubt to warrant it being reconsidered by an appellate court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at 248-249. 16 The principles governing applications for extensions of time within which to seek leave to appeal are also well established. Consideration needs to be given to the length of the delay, the explanation for the delay, any prejudice to the other parties and the merits of the proposed appeal: see, eg Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 at [5] and cases there cited.

Application for an extension of time 17 The time in which to seek leave to appeal the primary judge's orders expired on 4 June 2014: r 35.13(a) of the Federal Court Rules 2011 (Cth). On 13 June 2014, the applicant filed this application. 18 The explanation for the delay is that the applicant's solicitor was not well. The Minister accepts that there is no prejudice by reason of the applicant's delay. However, the absence of prejudice alone is not sufficient to grant an extension of time. Where a proposed appeal has no prospects of success, an extension of time may be refused, even if the delay, as in this case, is for a short period.

Application for leave to appeal 19 The draft notice of appeal rehearses the same ground of review as that pressed before the primary judge and adds a further circumstance being an allegation that "the tribunal refused to admit into evidence the applicant's explanation received just one day late but before the tribunal [made] its determination". This is incorrect. As I mentioned, the Tribunal took the applicant's response into account. 20 In the material provided to the Tribunal, the applicant did not dispute the Tribunal's characterisation of her enrolment history. I accept the submission by the Minister that there remains no basis to suggest that the Tribunal's findings were not open on the evidence before it. It is by no means clear from the PRISMS records as to the inter-relationship between the 19 subjects. The first three which related to Hospitality Management were undertaken at Meridian College, but not completed owing to its closure. The balance all appear to be "Business" based certificate and diploma courses. They were unconnected to Meridian College. However, this is not to the point. What is important is the overall record of the applicant's studies. Three were completed between 2010-2012, the first being a six-month course. The other two were each nine-month courses. As to the remaining ten certificate or diploma enrolments between early July 2012 and prospectively February 2015, nine were cancelled mainly for non-commencement of studies and unsatisfactory attendance or course progress. 21 Accordingly, there is no doubt, let alone sufficient doubt, that the primary judge was correct to dismiss the application. 'Wednesbury unreasonableness' does not arise. 22 Further, in so far as there may be a suggestion that the primary judge should not have made an order under r 44.12(1)(a) of the Rules prior to the "Court Book" being filed and served, I do not accept this. The Rules contemplate the possibility of an application for judicial review being dismissed on the first court date (r 44.11(a)) in circumstances where the material before the Court might only comprise the application itself and an affidavit attaching a copy of the decision under review (r 44.05). If the applicant wished to put additional evidence before the Court, it was open to her to provide that material with her application for judicial review (r 44.05(2)(b)) or at any time prior to the show cause hearing which occurred nearly five months after the filing of the application. 23 Finally, with respect to the second criterion for the grant of leave, the applicant has not put on any evidence that any injustice that would result should leave be refused. This is particularly relevant in circumstances where the applicant applied for the Visa over two years ago for the purpose of undertaking a Diploma in Business course which ran for the period 4 November 2013 to 4 May 2014. There is no evidence that this course was completed. Thereafter three other enrolments due to commence on various dates in 2014 were cancelled for various reasons including non-commencement by the applicant of her studies. It is not clear exactly when these cancellations occurred. Another enrolment due to commence in 2014 was marked "approved". I do not take this to refer to the fact that it was commenced and certainly not that it was "finished", which is a description given to other of her enrolments.

Conclusion 24 I would refuse the application to extend time within which to seek leave to appeal as the proposed appeal lacks merit. 25 The application ought be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.