Puri v Minister for Immigration and Border Protection

Federal Court of Australia|2018-08-21|Before: Kenny J

The application for an extension of time in which to appeal be dismissed.
The applicants pay the first respondent's costs of the application fixed in the sum of $1756, to be payable by instalments by arrangement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNY J: 1 This is an application for an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) to file a notice of appeal from a judgment of the Federal Circuit Court. The judgment was delivered on 11 October 2017, dismissing an application for judicial review of a decision of 16 June 2016 made by the Administrative Appeals Tribunal (Tribunal): see Puri & Ors v Minster for Immigration & Anor [2017] FCCA 2860. The Tribunal affirmed the decision of a delegate of the respondent Minister (delegate) not to grant the applicants Student (Temporary) (Class TU) visas (the visas). The first applicant, Mrs Pooja Puri, was the primary visa applicant. The second, third and fourth applicants were secondary visa applicants, namely Mrs Puri's husband and two daughters. 2 The first respondent filed written submissions in accordance with orders of the Court. The applicants did not. The first applicant appeared today to present the case for herself, her husband and children. The applicants relied on the affidavit of the first applicant affirmed on 6 November 2017. The first respondent relied on the affidavit of Aaron Michael Day affirmed on 7 December 2017. 3 The applicants applied for the visas on 10 July 2014. On the visa application form, the first applicant specified that her intended courses were a Certificate IV in Business and a Diploma of Business from the Victorian Institute of Technology Melbourne. The Certificate had a commencement date of 28 July 2014 and finish date of 16 March 2015. The Diploma had a commencement date of 11 May 2015 and finish date of 25 April 2016. She attached copies of her confirmations of enrolment. 4 On 4 December 2014, the delegate refused to grant the visas. The delegate was not satisfied that the first applicant was a genuine applicant for entry and stay as a student. Amongst other things, the delegate stated: Given your change of disciplines and immigration history I find that you are using the student visa program to circumvent the permanent migration program and I am not satisfied that you genuinely intend to stay in Australia temporarily. 5 The first applicant therefore did not satisfy cl 572.223(1)(a) of the Migration Regulations 1994 (Cth) (Regulations). 6 On 15 December 2014, the applicants applied to the Tribunal for review of the delegate's decision. By letter dated 30 January 2015, the Tribunal invited the applicants to appear at a hearing before it on 12 March 2015 to give evidence and present arguments. Among other things, the letter required the first applicant to provide "a copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa." 7 On 4 February 2015, the first applicant returned a response to hearing invitation and appointed an authorised recipient. The first applicant also provided copies of COEs for the Certificate IV in Business (28/07/2014-16/03/2015) and a Diploma of Business (11/05/2015-25/04/2016). 8 By letter dated 29 April 2016, the Tribunal invited the applicants to a further hearing on 8 June 2016 and again, among other things, requested a copy of the first applicant's current COE. 9 The applicants attended the hearing, with the assistance of a different migration agent. 10 On 16 June 2016, the Tribunal affirmed the delegate's decision not to grant the applicants the visas.

The decision of the Tribunal 11 The Tribunal observed that, whilst the issue before the delegate was whether the first applicant met the criterion in cl 572.223, the issue before it was whether, at the time of its decision, the first applicant was enrolled in, or was the subject of a current offer of enrolment, in a course of study that meets the requirements of the Regulations: see cl 572.231 of Schedule 2 of the Regulations. 12 The Tribunal recorded that, at the hearing in June 2016, the first applicant advised that she had recently completed her studies and was awaiting results. The Tribunal stated further that: She told the hearing she did not intend to undertake further studies, but that on receipt of her results, she and her husband and children would return to India. The Tribunal explained to [the first applicant] that without enrolment, she was not eligible for the grant of a student visa. She said she understood and accepted the position. …. [The first applicant] told the hearing that she was not currently enrolled and did not intend to enrol in future studies in the immediate future but planned to return to India with her husband and children. 13 In this context, the Tribunal stated: With limited exceptions (AusAID, Defence, and secondary school exchange students), the [Regulations] require applicants for student visas to be enrolled in or offered a place in a full-time registered course of study to satisfy the time of decision visa criteria. It is only when an applicant's intended course of study/ies is known that it is possible to determine other criteria that must be met to be eligible for the grant of a student visa e.g. the required duration of Overseas Student Health Cover, the course costs and living costs associated with the duration of the course etc etc. … Additionally, there is no evidence before the Tribunal which suggests that [the first applicant] meets the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Student (Temporary) (Class TU) visa. 14 The Tribunal found that the first applicant did not meet the essential requirement of Schedule 2 for the visa subclasses 570, 571, 572, 573, 574 and 575. Accordingly, the Tribunal affirmed the delegate's decision. As the applications of the secondary visa applicants were dependent on the application of the first applicant, the delegate's decision was also affirmed with respect to them.

Proceedings before the Federal Circuit Court 15 By an amended application filed on 5 June 2017, the applicants advanced two grounds of review: first, that the Tribunal constructively failed to review the decision in that it misconstrued the phrase "enrolled in a course of study"; and second, that the Tribunal made a jurisdictional error in making a critical finding for which it had no evidence (namely, that the first applicant was not enrolled in a course of study). 16 The nature of these grounds is summarised helpfully by the primary judge, who stated: As particulars, the applicants contended that the evidence before the Tribunal was that at the time of the decision, the period of instruction in the course in which the primary applicant was enrolled had concluded and the applicant was awaiting her results with the consequence that there was no evidence before the Tribunal to support a finding that the primary applicant was not enrolled at the time of the Tribunal's decision. 17 The primary judge dismissed the application. With respect to the first ground, his Honour held that there was no evidence that the first applicant was enrolled in, or the subject of a current offer of enrolment in, a course of study, being the critical words of cl 572.231. His Honour found that the first applicant's concession, recorded in the Tribunal's reasons for decision, that she was not enrolled and did not intend to enrol, was clear and unequivocal and that she was not coerced into making that concession. 18 With respect to the second ground, his Honour noted that similar factual considerations applied. His Honour found that, pursuant to s 65 of the Migration Act 1958 (Cth) (Act), the Tribunal was bound to affirm the decision if it was not positively satisfied that the first applicant met the criteria for the grant of the visa. As the first applicant failed to satisfy the Tribunal that she was enrolled in, or was the subject of a current offer of enrolment in, a course of study, his Honour held that the Tribunal's decision was correct.

Consideration 19 Pursuant to rule 36.03 of the Rules a notice of appeal must be filed within 21 days after the date on which the judgment was pronounced or the order was made. The judgment and orders of the primary judge were made on 11 October 2017. Accordingly, the notice of appeal was required to be filed by 1 November 2017. The application filed on 6 November 2017 requires an extension of five days to bring the appeal. 20 The Court has power to extend the time in which to file a notice of appeal regardless of whether the time has expired before the application is made. 21 The relevant principles were outlined in BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19], where Perry J explained: The considerations relevant to determining whether to grant an extension of time include the length of the delay, the applicant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: SZSPR v Minister for Immigration & Border Protection and Another [2013] FCA 1210;(2013) 139 ALD 109 at 113 [16]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. 22 These considerations are not, of course, exhaustive and the outcome of an extension of time application will always depend on the particular circumstances of the case: see, for example, Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with whom Edmonds J agreed); also Singh v Minister for Immigration and Border Protection [2015] FCA 483 at [20]-[21]. 23 The matter of prejudice can be put to one side. The first respondent does not assert that it will suffer prejudice if there is an extension of time. 24 The delay of five days is also so short as not to militate strongly against the extension sought. 25 In her affidavit of 6 November 2017, the first applicant deposed that the reason for the delay is that she was unaware of her appeal options and that there was a time limit on filing her appeal until she sought legal advice. The explanation is somewhat unconvincing and clearly lacking in detail. These deficiencies are not, however, sufficient to warrant rejecting the applicants' application in this case. 26 For the reasons I am about to state, I would reject the extension of time application because the grounds of the draft notice of appeal have no merit. There was a draft notice of appeal accompanying the first applicant's affidavit, and it is to this that I now turn. 27 The applicants' draft notice of appeal states the following proposed grounds of appeal: 1. The learned Judge erred in law and/or in fact in failing to find that the decision of the Administrative Appeals Tribunal ("the AAT") was affected by jurisdictional error and/or that the AAT had misapplied the Migration Regulations and/or the Migration Act with respect to the First Applicant's ("the Applicant") intentions to stay in Australia temporarily for study and her overall eligibility to do so by; i) Displaying bias towards the First Applicant; ii) Taking into account irrelevant maters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by the regulations; iii) Summarily dismissing and discounting the evidence presented by the Applicant; iv) Failing to consider the evidence of the Applicant in totality and cumulatively; v) Failing to properly and/or adequately investigate and assess the claims of the Applicant; vi) Failing to take into account relevant evidence and/or took into account irrelevant evidence. 28 These grounds were not the grounds relied on before the primary judge, and they could therefore not be advanced on an appeal without leave to do so. Putting the matter of leave to one side, in any event they are lacking sufficient merit to justify an extension of time.

Proposed ground 1 29 Bias is a serious allegation that must be distinctly made and clearly proved. An unparticularised allegation of the kind the applicants seek to make here is entirely inadequate, particularly where there is no evidence in the Tribunal's reasons or in the Tribunal's decision-making process to support that allegation. Without more, this proposed ground is without merit 30 At the hearing today, the first applicant explained that her key point was that at the time of the Tribunal proceeding she could not obtain confirmation of enrolment in a relevant course because the relevant educational bodies would not give her such a document while she was involved in the Tribunal proceeding. She maintained that she had informed the Tribunal of this difficulty. She explained that proposed grounds 1 to 6 inclusive relied on this circumstance. She contended that the Tribunal displayed bias towards her because it did not listen to her and seek to understand and address her difficulty. 31 As the first respondent submitted, this submission could not overcome the objective fact that there was no evidence of enrolment before the Tribunal to satisfy cl 572.231. That clause required that at the time of decision "the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course". Unless the first applicant could satisfy that criterion, she could not meet the visa criteria. The Tribunal's reasons recorded that the first applicant had told the Tribunal that she was not currently enrolled; and the Tribunal held that because she was not enrolled the first applicant could not satisfy this essential criterion. This was plainly correct. 32 If there was an explanation of the kind that the first applicant now puts forward, this would not have altered the fact that she was not enrolled and could not satisfy the criterion in cl 572.231. The applicant suggested today that she explained her problem to the Tribunal. I am unable to accept this, because the Tribunal makes no mention of such statements by her to this effect, and the suggestion that she attempted to obtain confirmation of enrolment, as required, but could not because of the Tribunal proceeding does not fit with her statement to the Tribunal that she did not intend to undertake further studies, but on receipt of her results, she and her family intended to return to India. This explanation was not, moreover, mentioned by the primary judge as a matter to which she referred in the proceeding before him. 33 The matter raised today by the first applicant does not have any merit, whether assessed under ground 1 or any other ground.

Proposed grounds 2 and 6 34 These two proposed grounds allege that the Tribunal either took into account unspecified irrelevant considerations or did not take into account unspecified relevant considerations. There is nothing in the Tribunal's reasons that would support this allegation. The applicants have not identified any such matter. These grounds are without merit.

Proposed grounds 3 and 4 35 These two proposed grounds make broad complaints about the Tribunal's appraisal of the first applicant's evidence. These grounds lack any merit. The Tribunal properly had regard to the first applicant's evidence that she was not enrolled in any course of study, and this was, as already stated, dispositive of her application. As indicated, the first applicant told the Tribunal that she was not enrolled in any course of study. She could not therefore satisfy cl 572.231. The Tribunal was not required to engage further with the first applicant's evidence in relation to the other visa criteria.

Proposed ground 5 36 This proposed ground alleges the Tribunal failed to investigate the first applicant's claims. The Tribunal has, however, no general duty to make inquiries. In circumstances where the first applicant gave evidence that she was not enrolled in any course of study and had no intention of enrolling in any further studies, the Tribunal was under no obligation to make further inquiry. Indeed, as the first respondent submitted, there is nothing to indicate that any further inquiry might have led to a different outcome.

Disposition 37 For the reasons stated, the application for an extension of time should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

SCHEDULE OF PARTIES VID 1203 of 2017 Applicants Fourth Applicant: ANSHIKA PURI

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