Ren v Minister for Immigration and Border Protection

Background facts and procedural history 3 I have drawn the following from the materials before the Court, including the primary judge's reasons of the primary judge and the Minister's submissions. The applicant did not comply with orders made in the proceeding directing him to file written submissions before the hearing. 4 The applicant is a 35-year old Chinese national who arrived in Australia on 19 February 2011 as the holder of a student visa, and he subsequently held a number of other student visas and associated bridging visas. He completed a combined Master of Professional Accounting and Master of Commerce degree at Deakin University on 30 November 2012. Following his completion of that degree, he remained in Australia and enrolled in a number of other courses but as at the date of the decision to refuse him a visa he had not completed any of those courses. 5 On 29 June 2015 the applicant applied to the Department of Immigration and Border Protection (the Department) for a further student visa, he said in order to study a Diploma of Interpreting and an Advanced Diploma of Translating. Pursuant to cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations), it was a criterion for grant of a student visa that the Minister be 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. 6 On 2 July 2015 the Department invited the applicant to provide further information in support of his visa application, including a statement and corroborating documents addressing certain aspects of his study history relevant, amongst other things, to whether he met the "genuine temporary entrant" criterion. 7 On 30 July 2015 the applicant's representative provided the Department with various documents including a statement of purpose, bank account statements, a Certificate of Enrolment with the Australian Institute of Translation and Interpretation, and a detailed statement in which the applicant explained his claim to be a genuine student. 8 On 13 August 2015 a delegate of the Minister decided that the applicant was not a genuine applicant for entry and stay as a student under cl 572.223(1)(a) and declined to grant him a student visa. 9 On 28 August 2015 the applicant applied to the Tribunal for review of the delegate's decision. 10 By letter dated 23 May 2017 the Tribunal invited the applicant to attend a hearing on 8 June 2017 to give evidence and present arguments. The Tribunal provided the applicant with a copy of Ministerial Direction No. 53 (Direction 53) setting out the relevant considerations for a decision-maker when considering if an applicant is a genuine applicant for entry and stay as a student, and requested him to provide a statement and documentation regarding his current and past enrolments in courses of study, prior to the hearing. 11 On 7 June 2017, the day before the scheduled hearing, a third-party sent an email to the Tribunal requesting an adjournment of the hearing because the applicant was suffering from a significant cold and "super high hypertension". The Tribunal granted the request. 12 By letter dated 14 June 2017 the Tribunal invited the applicant to attend a rescheduled hearing on 13 July 2017, and again requested that he provide a statement and documentation regarding his current and past enrolments in courses of study. 13 On 12 July 2017, the day before the re-scheduled hearing date, the applicant emailed the Tribunal and stated that he "would not join the hearing tomorrow". He did not seek an adjournment. 14 In light of the applicant's decision not to attend the hearing the Tribunal proceeded to determine the application on 13 July 2017, doing so on the basis of the information then available to it. In its reasons for decision, the Tribunal: (a) noted (at [20]-[21]) that the applicant had failed to provide evidence of any current enrolment in a course, nor evidence of his past studies in Australia, as requested. The Tribunal said that it was explained to the applicant in the letter accompanying the hearing invitation that his having a current enrolment or current offer of enrolment was a prerequisite for the grant of a visa; (b) found (at [22]) that there was no evidence before it that the applicant holds a current enrolment sufficient to satisfy cl 572.222 of the Regulations, which provides that it is a criterion for grant of a student visa that the applicant provide to the Minister a certificate of enrolment in a course of study; (c) noted (at [24]) that since arriving in Australia the applicant had been enrolled in a large number of courses, many on multiple occasions and many of which have been cancelled. The cancelled courses included: Master of Professional Accounting; Master of Professional Accounting/Commerce; Bachelor of Business (Marketing); Bachelor of Business (Management); Diploma of Interpreting; and Advanced Diploma of Translating. The Tribunal noted (at [26]) that the only evidence of completed study was the Master of Professional Accounting/Master of Commerce degree which the applicant obtained between February 2011 and November 2012. For the rest of his six years in Australia the applicant had completed less than two years of study. (d) found (at [25]) that the applicant's repeated enrolment in courses he either did not start or did not complete was not the behaviour of a genuine student, nor was his completing only two years of study in six years; (e) said (at [28]) that the applicant was enrolled in a Bachelor of Business due to commence in March 2013 but that enrolment was cancelled and he never commenced the course. He then had a significant study gap from 5 March 2013 until 31 December 2013, which he sought to explain on the basis that he had lodged an application for a 485 Skilled Graduate visa and was awaiting an outcome, he and his wife were trying to conceive their first child without success which put his wife under "huge mental pressure" such that she needed company, and that he was concerned about his father's health which meant that he was not in the mood for study. At the end of November 2013 his father's condition deteriorated and the applicant flew home on 2 December. The applicant's father died 10 days later; (f) implicitly doubted (at [28] and [30]) the applicant's explanation for the study gap because the applicant was not aware his father was unwell until well after his course was scheduled to commence, and because there was no evidence he sought a deferral from his studies or any professional help. The Tribunal found (at [31]) that the applicant's reasons and actions did not satisfactorily explain the study gap and he did not believe that the applicant's behaviour was that of a genuine student. It found that his reasons and actions indicated that he was attempting to use the student visa program to remain resident in Australia; (g) found (at [32]) that the applicant had repeatedly breached conditions of his visa, had failed to remain enrolled, was in Australia for 24 days is unlawful non-citizen, had a significant study gap, had his enrolment in one course cancelled for failure to commence studies and his enrolment in another course cancelled for unsatisfactory course progress. The Tribunal was not satisfied that the applicant would abide by the conditions of a further student visa if he was granted one; (h) noted (at [33]) that since the delegate refused to grant the applicant a visa his study in Translation and Interpreting had been cancelled which cast further doubt on his claim to be a genuine student. The Tribunal noted that the applicant had undertaken no study since his visa application was refused which was unusual for a person who said he was keen to gain skills and knowledge so he could return to China and work in a senior position; (i) found (at [34]) that the applicant appeared to be settled in Australia and although he claimed to have family in China which provided an incentive for him to return to China, he did not provide evidence of any such incentive which outweighed the evidence of his immigration history; (j) decided (at [35]) that it was not satisfied that the applicant is a genuine student who intends to stay temporarily in Australia, and therefore found he does not meet cl 572.223(1)(a) of the Regulations. The Tribunal affirmed the delegate's decision to refuse the applicant a visa.

The application to the Federal Circuit Court 15 On 10 August 2017 the applicant applied for judicial review of the Tribunal's decision in the Federal Circuit Court. The application was listed for a directions hearing on 18 April 2018. The applicant failed to attend the hearing and the application was dismissed with costs. 16 On 11 May 2018, the applicant applied for reinstatement of the application. In an affidavit filed in support of the reinstatement application, the applicant deposed that he had received no notice of the hearing because of an error in regard to his contact details in a document prepared by solicitors he had retained. 17 In the circumstances the respondent consented to reinstatement and the application was listed for a show cause hearing on 9 November 2018. 18 On 21 November 2018 the primary judge made orders to dismiss the application and delivered reasons for judgment. I will deal with the relevant parts of the primary judge's reasons when dealing with the application to this Court.

The application to this Court 19 On 21 December 2018 the applicant filed an application in this Court seeking an extension of time and leave to appeal from the orders of the primary judge. The applicant requires leave because the dismissal of his case in a show cause hearing was interlocutory in nature: see r 44.12(1) of the Federal Circuit Court Rules 2001. 20 Pursuant to r 35.13 of the Federal Court Rules 2011 (Cth), an application for leave to appeal to this Court must be filed within 14 days of the date on which the judgment was pronounced or the order was made. The application for leave to appeal was filed 16 days outside that time limit, and the applicant therefore also requires an extension of time. 21 The application for leave to appeal alleges the following three grounds: 1. The Applicant was not allowed sufficient time for preparation of the Show Cause Hearing listed on 9 November 2018. a. First Respondent was ordered by Federal Circuit Court to file and serve one copy of a bundle of relevant documents (court book) by 4.00pm on 30 May 2018. b. The First Respondent only filled and served the Court Book on 18 October 2018, and further filled and served supplementary court book on 2 October 2018. c. Hence the Applicant did not have sufficient time to prepare for the hearing, including the amendment of the application. The Applicant had seek adjournment but was declined. 2. The Applicant failed to obtain legal representation due to insufficient preparation time and limited knowledge in relation to the Federal Court Appeal rules. 3. The Second Respondent was unreasonable and error in considering the Applicant's study history, in particular the study gap. a. The Second Respondent considered the Applicant's study gap between 5 March 2013 and 31 December 2013. b. During the time the Applicant had lodged subclass 485 Skilled Graduate Vis waiting for approval. The Applicant was holding bridging A visa associated with the 485 Visa application. c. While student visas are granted with the expectation the visa holder will remain enrolled and studying, it is common and reasonable for graduates who had obtained educational qualification and lodge Skilled Graduate visa, to seek employment rather than keep studying. It shall be distinguished from the scenario that a student visa holder, without lodging other visas decided to stop studying. d. The Second Respondent considered the study gap as a significant negative factor in making its decision. It is illogical and irrational. 22 Curiously, the draft notice of appeal attached to the application only alleges Ground 1 above. I proceed on the assumption that the applicant relies on these three grounds rather than only on Ground 1. 23 The application for an extension of time and leave to appeal was listed for hearing on 24 October 2019. By directions made on 30 January 2019 the applicant was directed to file written submissions within 10 days prior to the hearing, but he did not do so. He was self-represented in the hearing. He showed a reasonable command of English, and he was also assisted by an interpreter when necessary.

Consideration 24 The relevant principles in deciding whether to allow an application for an extension of time are well-established. The Court must decide whether it is an interest of justice to do so having regard to considerations including the length of the delay, the explanation for the delay, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension is time is granted, the prospects of success or merits of the substantive application and any relevant public interest considerations: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349 (Wilcox J); Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [5] and [66] (Brennan CJ and McHugh J, and Kirby J, respectively). Such considerations are not though exhaustive, and the outcome of an application for an extension of time will depend upon the particular circumstances of the case: Mentink v Minister for Home Affairs [2013] FCAFC 113 at [32]-[38] (Griffiths J, with Edmonds J agreeing).

The length of and explanation for the delay 25 The Minister contended that, although the length of the applicant's delay in bringing the application was only short, the applicable time limit is not to be ignored. The Minister relied on the decision of Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 (at [3]) where his Honour said that time limits are "not mere aspirational guidelines" and "[o]nce that period expires without any appeal being lodged the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs as defined by the judgment at first instance. The court should not readily disturb that established state of affairs." 26 I accept that the applicable time limits are more than mere aspirational guidelines, but it is necessary to have regard to the applicant's explanation and the surrounding circumstances. The applicant was 16 days late which he said occurred because he was not aware of the 14 day time limit. Ignorance of the applicable time limit is not in itself an adequate explanation but, having regard to the fact that he did not have the benefit of legal advice in relation to the applicable time limit, he is not legally qualified, and English is not his first language, the fact that the application was 16 days late does not in my view carry much weight in the balance.

Prejudice 27 The Minister does not contend that he will suffer any prejudice if the application for an extension is granted. 28 I enquired of the applicant whether he would suffer any prejudice if he was refused a visa and, somewhat surprisingly, he said that he would not. He said that since the decision to refuse to grant him a visa he had completed a Diploma of Interpreting and an Advanced Diploma of Translating and would have no difficulty in obtaining a job in China, and did not suggest he would suffer any hardship. The possibility of prejudice to the applicant is not a factor in favour of allowing an extension of time.

The prospects of success of the application for leave to appeal if the extension of time were granted 29 Because the proposed appeal is from an interlocutory decision the applicant must satisfy both limbs of the cumulative test in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 which requires that he show that: (a) there is sufficient doubt as to the correctness of the judgment below to warrant review; and (b) if the judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. Because the primary judge's orders dismissing the application have the practical effect of finalising his rights, it is sufficient for the applicant to show a prima facie case for granting leave to appeal: Duncan v Secretary, Department of Family and Community Services [2007] FCA 507; (2007) 99 ALD 241 at [18] (French J); SZTVU v Minister for Home Affairs [2018] FCA 1394 at [28] (Perry J). 30 In deciding whether to allow an extension of time to bring an application for leave to appeal, and in deciding whether to grant leave to appeal, the Court is not called on to decide whether the appeal will succeed. What is required is an examination of the grounds of the proposed appeal 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 "reasonable prospects of success": MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP) at [62]-[63] (Mortimer J); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (Tracey, Perry and Charlesworth JJ); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] (Siopis, White and Perry JJ).

Ground 1 31 Under this ground the applicant alleged that he was not served with a court book in compliance with the timeframe ordered by the Federal Circuit Court and that, as a result, his preparation for that hearing was prejudiced. He said that he applied for an adjournment but the primary judge refused. 32 The Minister conceded that the Court Book was filed late owing to an administrative error and that it was not served on the applicant until 18 October 2018. The show cause hearing was listed for 9 November 2018, and accordingly the applicant was served with the Court Book just over three weeks before the hearing. A supplementary court book containing one further document was served on the applicant on 26 October 2018, two weeks before the hearing. 33 The provision of relevant materials to a party in sufficient time to allow the party to prepare for a hearing is an important part of providing procedural fairness, and the failure of the Minister's representatives to comply with the timetabling order is regrettable. I am not though persuaded that this ground of appeal has reasonable prospects of success. 34 First, having regard to the primary judge's reasons (at [23]) the applicant did not ask for an adjournment below because of the lateness in provision of the Court Book and he did not contend that he had suffered any prejudice through that lateness. His Honour's reasons confirm that the applicant sought an adjournment, but that he did so because of an alleged inability to find a lawyer to take his case. Before me the applicant confirmed that he had not contended below that he suffered any prejudice through the late provision of the Court Book. He seemed to submit at one point that he did not seek an adjournment because of the late provision of the Court Book because he did not understand that an adjournment could be asked for. That submission cannot be correct because, according to the primary judge's reasons, he did in fact ask for an adjournment but it was for a different reason. 35 Second, the applicant was on notice since 22 May 2018 of the show cause hearing on 9 November 2018 and there was nothing of any significance in the Court Book of which the applicant was not already aware. The Court Book comprised documents known to the applicant as they were either provided by him to the Department, or provided by the Department to him, during his interactions with the Department, the delegate and the Tribunal. 36 Third, the primary judge declined the request for an adjournment based on the applicant's alleged inability to find a lawyer because of the history of the matter, which included that the application was earlier dismissed because the applicant did not attend the first directions hearing in his application was dismissed, and that the applicant had not attended the Tribunal hearing, after having been granted an adjournment. 37 There is no House v The King [1936] HCA 40; (1936) 55 CLR 499 error in the primary judge's decision to refuse to allow the adjournment when his Honour considered the applicant's submission that a lawyer had declined to take his case but, having regard to the history of the matter and the consent reinstatement in May 2018, decided not to grant the request. Before the primary judge the applicant did not assert that he had suffered any prejudice because of the late provision of the Court Book, and in any event the materials which were provided three weeks before the hearing comprised documents of which the applicant was already aware. The primary judge's decision is not attended by sufficient doubt to warrant review. Even if the decision is assumed to be wrong, the applicant did not assert that he will suffer any substantial injustice if leave to appeal is refused, and he does not satisfy the second limb of the Décor test.

Ground 2 38 Under this ground the applicant alleges that he "failed to obtain legal representation due to insufficient preparation time and limited knowledge in relation to the Federal Court Appeal rules." 39 It is not clear whether this ground is merely a further explanation in relation to the applicant's failure to file his application for leave to appeal in time, or whether it alleges that he could not obtain a lawyer and had insufficient preparation time for the hearing below. 40 If this ground relates to the hearing before the primary judge it does not take matters any further than Ground 1, with which I have already dealt. If it relates to the application for leave appeal to this Court, the lateness of his application is not in my view a matter of great significance.

Ground 3 41 Under this ground the applicant contends that the Tribunal erred in its treatment of the gap in the applicant's study history between 5 March 2013 and 31 December 2013. In that period the applicant lodged an application for a 485 Skilled Graduate visa and was waiting its approval, and he was holding a bridging visa associated with that application. The applicant submitted that, having obtained a Master of Professional Accounting/Master of Commerce degree at Deakin University on 30 November 2012, it was reasonable for him to seek employment rather than keep studying and he contended that the Tribunal's decision is illogical and irrational. 42 In my view this ground does not have reasonable prospects of success. 43 First, the primary judge's reasons show (at [33]) that the applicant did not raise this ground below. The applicant requires leave before he may advance a fresh ground of appeal. 44 Second, and more fundamentally, a decision will not be illogical or irrational if there is room for a logical or rational decision-maker to reach the same decision on the material. It is not enough to show that the decision is one upon which a reasonable decision-maker may have come to a different conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] (Crennan and Bell JJ). 45 It is clear from the Tribunal's reasons that its findings in relation to the gap in the applicant's study between 5 March 2013 and 31 December 2013 were open to it on the material before it. The Tribunal had regard to the applicant's explanations regarding his father's illness and death and the difficulties his wife experienced in conceiving a child, but noted that the applicant was not aware of his father's illness until after his course had commenced and there was no evidence that the applicant had sought a deferral of the course or professional help in regards to these issues. Before me the applicant submitted that he was aware of his father's illness before his course commenced, but only became aware of its severity later. That may or may not be so, but that does not point to jurisdictional error in the Tribunal's finding when the applicant did not appear at the hearing to give evidence or make submissions seeking to justify the study gap. This ground is little more than an attempt by the applicant at engaging the Court in impermissible merits review. 46 Further, on a fair reading of the Tribunal's reasons it is plain that its finding in relation to the study gap was just one integer of the series of findings upon which it based the conclusion that it was not satisfied that the applicant is a genuine student who intends to stay temporarily in Australia. That conclusion was plainly open on the materials.

Conclusion 47 I am not persuaded that there is an arguable case that the primary judge's decision to dismiss the application is attended by sufficient doubt to warrant review, nor can I see any arguable jurisdictional error in the Tribunal's decision. Even, assuming the judgment below to be wrong, the applicant did not contend that he will suffer any substantial injustice, meaning that he did not satisfy either limb of the test in Décor. 48 It is appropriate to dismiss the application for an extension of time and leave to appeal, with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.