Shakira v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The application for leave to appeal 18 An applicant for leave to appeal in this Court must generally establish that there is sufficient doubt as to the correctness of the relevant judgment to warrant its reconsideration by the Full Court and that, assuming the judgment to be wrong, the applicant would suffer substantial injustice if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 at 398. 19 It may be accepted Ms Shakira and Mr Murtaza would suffer substantial injustice if the primary judge was wrong to dismiss her application and leave to appeal was refused. The critical issue, in those circumstances, is whether the proposed appeal has any apparent merit or is at least reasonably arguable. 20 Ms Shakira's and Mr Murtaza's proposed grounds of appeal are uninformative and deficient. They simply note that that they will "respond further" when they receive a copy of the primary judge's written reasons. Ms Shakira and Mr Murtaz no doubt received the primary judge's written reasons, but they did not "respond further" by filing either a further draft notice of appeal or written submissions. 21 In her oral submissions, Ms Shakira referred to the certificates, diplomas and degrees that she had enrolled in and completed while in Australia and her intention and desire to further her studies. She also referred to the circumstances in which she ceased studying, obtained a particular type of work visa (commonly known as a "457 visa") and commenced working at a restaurant. After working for a while, Ms Shakira then applied for a further work visa. It was that application which was refused by the delegate. She then suffered some health problems which effectively prevented her from pursuing her studies. Ms Shakira candidly conceded that she was not enrolled in any course at the time of the Tribunal's review of the delegate's decision. She also agreed that she had consented to the Tribunal deciding her review application without a hearing, though she submitted that the Tribunal did not send her a follow up email or ask her for any further evidence. 22 Unfortunately for Ms Shakira, her submissions did not identify any appellable error in the decision of the primary judge, or any basis upon which it could be found that the Tribunal made a jurisdictional error in determining her review application. It is perhaps not surprising that Ms Shakira has been unable to identify any appellable error in the judgment and orders of the primary judge. That is because the primary judge was plainly right to dismiss her application for judicial review. There is no apparent basis upon which to contend that the Tribunal made any jurisdictional error in determining its review. Indeed, it is difficult to see how the Tribunal could have made any decision other than affirming the decision under review. 23 Ms Shakira had advised the Tribunal that she did not have any confirmation of her enrolment in a course. She also clearly consented to the Tribunal determining her review application without conducting a hearing. The Tribunal's conclusion that Ms Shakira did not meet the criterion for the grant of a student visa in cl 500.211(a) of Sch 2 of the Regulations was in those circumstances inevitable and plainly correct. It was also plainly open to the Tribunal to determine the review application without convening a hearing given that Ms Shakira had consented to that course. The Tribunal was not obliged to contact Ms Shakira again once that consent had been communicated to it. 24 The grounds identified in the application filed in the Circuit Court by Ms Shakira and Mr Murtaza did not identify any arguable case for the relief claimed. Nor did Ms Shakira's submissions. Indeed, it would appear that Ms Shakira effectively conceded that she was not enrolled in any course of study at the time the Tribunal decided her review application. She also did not appear to dispute that she had consented to the Tribunal determining her review application without a hearing. 25 Ms Shakira and Mr Murtaza have accordingly not demonstrated that they have any arguable grounds of appeal. Their application for an extension of time and leave to appeal must therefore be dismissed. Ms Shakira and Mr Murtaza have not provided any reason for why the costs of their application should not follow the event. They must accordingly pay the Minister's costs of the application. 26 The Minister applied for an order pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth) that he be awarded a lump sum in respect of his costs. He relied on an affidavit affirmed by a solicitor which estimated that if the Minister's costs were taxed, he wold be entitled to costs in the amount of $4,231.50. The affidavit sufficiently explained how that estimate had been arrived at. This is an appropriate case in which to make a lump sum costs order and the figure proposed by the Minister is reasonable.

Conclusion and disposition 27 The appropriate orders are accordingly that the application for extension of time and leave to appeal be dismissed and the first and second applicants pay the first respondent's costs of $4,231.50. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.