Sekhon v Minister for Immigration and Border Protection

Fresh grounds of appeal 14 None of the proposed grounds of appeal were advanced before the FCC. The grounds of the application below centred on the contention that the Tribunal had misunderstood the definition of 'genuine student' in the Regulations and the applicant was a 'genuine student'. 15 It is fundamental to the due administration of justice that the substantial issues between the parties are settled at first instance, otherwise the main arena for the resolution of disputes would move from the Court of first instance to the appellate court: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). It is however settled that where it is expedient and in the interests of justice an appellate court may allow a point to be raised for the first time in an appeal: Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ). In deciding whether it is expedient and in the interests of justice to grant leave to raise a fresh ground of appeal it is relevant to consider the merits of the proposed ground where there is no adequate explanation for the failure to take the point below, and it seems to be of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] (Kiefel, Weinberg and Stone JJ).

CONSIDERATION 16 The applicant was not legally represented, he did not file written submissions, and he made limited oral submissions. While I take that into account, there was nothing in his submissions capable of establishing the proposed grounds of appeal.

Particulars (i) and (v) of the grounds 17 Under these grounds the applicant alleges that the Tribunal and/or the primary judge took into account irrelevant matters, information or evidence or failed to take into account relevant evidence. I pressed the applicant as to the matters, information or evidence to which he referred and he offered nothing. 18 There is no merit to these grounds. The Tribunal was required to consider whether the applicant provided evidence of meeting the English language proficiency and financial capacity requirements under cl 572.223 of Schedule 2 to the Regulations. It invited the applicant to provide such information and he did not do so (as he conceded before the primary judge and before me). Such matters were plainly relevant to the Tribunal's task. Nor can it be said that the FCC took irrelevant matters into account or failed to consider relevant matters. The primary judge's decision is also, correctly in my view, based on the applicant's failure to provide the required evidence.

Particulars (ii) to (iv) of the grounds 19 Under these grounds the applicant alleges that the Tribunal discounted the evidence he presented, did not consider it in totality and cumulatively, and did not properly or adequately investigate or assess his claims. I pressed the applicant in relation to the Tribunal's approach to his evidence and he could not point to anything specific. 20 There is no merit to these grounds. The Tribunal considered the applicant's submissions that there was a gap in his studies, and that he had problems with his family, but he was now studying and attending classes. It considered his request for further time to book an English language proficiency test and further time to provide evidence of financial capacity. The applicant made some similar submissions before me. The applicant's failure to respond to the Tribunal's request for such information was fatal to his application. These grounds cannot succeed. 21 Nor, to the extent these grounds relate to the judgment below, can it be said that the primary judge was wrong in holding that the Tribunal did not fall to jurisdictional error. Before the primary judge the applicant conceded that he had failed to provide evidence to the Tribunal that he met the English language proficiency and financial capacity requirements. The primary judge did not err in dismissing the application.

Particular (vi) 22 Under this ground the applicant alleges either bias or apprehended bias. 23 There is no merit to this ground. Any such allegation must be distinctly made and clearly proved: Minister for Immigration v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69] (Gleeson CJ and Gummow J). In submissions the applicant offered nothing capable of making out this allegation, and there is nothing in the Tribunal decision or the judgment below to indicate actual or apprehended bias.

CONCLUSION 24 Having regard to the lack of merit of the proposed grounds of appeal the application to rely on fresh grounds of appeal should be refused. In the absence of any grounds of appeal the application for leave to appeal must fail. 25 Even if, contrary to my view, it is appropriate to grant leave to advance the fresh grounds of appeal, I would refuse leave to appeal. Having regard to those grounds there is insufficient doubt to warrant a grant of leave and, if the judgment below is assumed to be wrong, there is nothing to show that the applicant would suffer substantial injustice by refusal of the student visa. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.