Potlacheruvu v Minister for Immigration and Border Protection

THE TRIBUNAL'S DECISION 3 The applicant appealed to the Tribunal for review of the delegate's decision. 4 The issue before the Tribunal was whether the applicant met the enrolment requirements for a student visa under the Regulations. At the time the application was lodged, the applicant was proposing to undertake a Certificate IV in Hospitality (Commercial Cookery) and a Diploma of Hospitality. 5 The Tribunal concluded that there was no evidence before it that the applicant was, at the time of the decision, enrolled or had a current offer of enrolment for any applicable course of study under clauses 570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of the Regulations. 6 Furthermore, the Tribunal found that there was no evidence that the applicant met the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa. 7 For these reasons, the Tribunal affirmed the decision under review.

THE FEDERAL CIRCUIT COURT'S DECISION 8 The applicant applied to the FCC for judicial review of the Tribunal's decision. 9 He relied on the following grounds: "a. S.477, Judicial review can be lodged after 35 days after tribunal review has been finalised b. I am not happy with tribunal decision, applying for judicial review for legitimate decision c. I do have exceptional circumstances beyond the application previously lodged." (sic) 10 The applicant did not challenge the factual findings of the Tribunal. He explained that his financial circumstances prevented him from enrolling in a course. 11 In his reasons for decision, Judge Riethmuller noted at [3] that: "[The applicant] has been in Australia for three years and only obtained a Certificate III in Hospitality, that he was already qualified as a cook in Australia and so there seemed to be no additional value to him studying hospitality for another two years, and that it seemed to the delegate that he wanted to undertake short courses simply to remain in Australia rather than to achieve an appropriate educational outcome." 12 His Honour recognised that the powers of the FCC are limited to "correcting errors of law made by the tribunal or the Department" and do not extend to "change regulations because of personal circumstances of applicants." 13 The FCC concluded that the applicant failed to identify any error on the part of the Tribunal as he was not enrolled in and did not hold any offer of enrolment to be a student and therefore, he was simply not eligible for a student visa. 14 The FCC dismissed the application with costs.

THE APPEAL PROCEEDINGS 15 The applicant now seeks to appeal to this Court from the FCC's decision. His application for leave and draft notice of appeal contained the following grounds: "1. I am not happy with the decision made by Federal Circuit Court of Australia. 2. I am looking for the justice at Federal court of Australia." (sic) 16 In his written submissions, the Minister opposed the application for an extension of time within which to seek leave to appeal. He submitted that the application should not be granted because the proposed appeal had no prospects of success. This was because the FCC decision was not attended with sufficient doubt as to warrant its reconsideration. It was submitted that, for this reason, the application should be refused. 17 When the application was called on for hearing this afternoon the applicant appeared in person. He had the assistance of an interpreter. 18 I explained to him that his proposed grounds of appeal did not identify any appealable error which would justify the intervention of this Court. I invited him to identify any legal error which he said had been made by either the Tribunal or the trial judge on which he would seek to rely if leave were granted. He did not identify any such error. 19 The Court has a broad discretion to grant leave to appeal. The principles to be applied in exercising that discretion were explained in DÉcor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. 20 The Court also has a broad general discretion to enlarge time within which an appeal might be commenced. There are, potentially, many relevant considerations which might inform the exercise of this discretion: see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344. 21 A factor which will weigh heavily in the exercise of both discretions is an applicant's prospects of successfully prosecuting an appeal should the necessary leave be granted. If a proposed appeal has no prospect of success leave should not, normally, be granted: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J). 22 In my view the present applications fall into this category. In the absence of any identified appealable errors the proposed appeal would be bound to fail.

DISPOSItion 23 The applications for an extension of time and for leave to appeal should both be refused with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.