The proposed grounds of appeal
46 The applicant filed a Draft Notice of Appeal. It contains the following proposed grounds (original spelling and grammar retained):
1. The Federal Circuit Court made a decision without considering all facts and information and disregarding the evidence it had on file
2. The Federal Circuit Court failed to accord me, the applicant, procedural fairness and natural justice.
3. The Federal Circuit Court erred in not having considered the fact that I had been the dependent applicant and sought to meet the requirements. Requested enrolments in a course were submitted but before they could be updated , the decision was made by tribunal. The section 572.231 was incorrectly assessed
4. The Faderal Circuit Court failed to consider my circumstances and proceeded to make decision applicant and did not apply section 357 A correctly . It was to apply section 359 to seek more information and allow reasonable time to complete that request seeing my circumstances where I lost both of my parents and wife in a very tragic car accident leaving me all alone.
47 In support of the first two proposed grounds, the applicant submitted that he had "wanted to" provide the Federal Circuit Court with a document evidencing his confirmation of enrolment in a certificate course for the improvement of his English language skills. He claims he was not "asked" by the Federal Circuit Court to provide any documents. The document to which he referred shows that he had received confirmation of enrolment in the English language certificate courses to which I referred earlier (at [14]).
48 The document in question was contained in a book of documents that was before the Federal Circuit Court at the hearing of the applicant's application for judicial review in any event. In summarising the Tribunal's reasons, the learned Federal Court Judge noted that the Tribunal had received a "letter of offer" in relation to the same courses. The judgment goes on to say:
[12] … As the Tribunal correctly noted at paragraph 10, … the issue in the case was whether the applicant was currently enrolled or subject to an offer of enrolment in a registered course of education.
49 The applicant is correct in his assertion that he had provided the Tribunal with not only a letter of offer in relation to the courses in question, but a confirmation of his enrolment in them. However, nothing turned on that question in the proceedings in the Tribunal, nor in the Federal Circuit Court, because the time in which the courses were to have been completed had passed by the time of the Tribunal's hearing and, as the applicant acknowledged before me, he had obtained no other offer of enrolment or confirmation of enrolment in any course since that time. The Federal Circuit Court did not err in identifying the issue before the Tribunal as being one concerned with the applicant's current status at the time of the Tribunal's decision. Accordingly, the first and second proposed grounds of appeal do not cast any doubt on the correctness of the decision of the learned Federal Circuit Court Judge so as to warrant its reconsideration on appeal.
50 The third proposed ground of appeal is disjointed in its expression and appears to raise a number of unrelated complaints. Insofar as this ground of appeal assumes that the Federal Circuit Court had the jurisdiction to review the merits of the Tribunal's decision, the ground cannot possibly succeed.
51 Interpreting the ground of review generously in favour of the applicant, I proceed on the basis that the applicant intends to allege that the Federal Circuit Court erred in failing to determine that the Tribunal had committed a jurisdictional error in failing to afford the applicant more time in which to obtain a current confirmation of enrolment, or offer of enrolment, in an applicable course. The difficulty with that contention is that it formed no part of the grounds for judicial review before the Federal Circuit Court. Moreover, there was nothing in the material before the Federal Circuit Court to suggest that the applicant had made an application for an adjournment of the Tribunal's hearing on the ground that he was in a position to obtain either confirmation of enrolment in a course or an offer of an enrolment in a course. He did secure an adjournment of the hearing from 15 August 2014 to 21 August 2014 on medical grounds, however he did not specify in his request for that adjournment that he required further time to satisfy the criteria for the grant of the Visa.
52 The concluding words of the third proposed ground of appeal contend that the criteria specified in cl 572.231 of Schedule 2 to the Regulations had been misconstrued or misapplied by the Tribunal or perhaps by the Federal Circuit Court. That is the clause that contains the enrolment criterion which I have already mentioned. In his submissions before this Court, the applicant did not specify how the Federal Circuit Court or the Tribunal had erred in construing cl 572.231. I have myself reviewed the reasons of the Tribunal to identify whether there is any jurisdictional error of the kind alleged and am satisfied that there is none. It follows that there is insufficient doubt in the correctness of the judgment of the Federal Circuit Court to warrant its consideration on any basis raised in the proposed third ground of appeal.
53 As to the fourth proposed ground of appeal, I understand the reference to s 357A in that ground to be a reference to s 357A of the Act, which is contained in Division 5 of Part 5. Division 5 deals with the procedures of the Tribunal. Section 357A relevantly provides that Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
54 Again interpreting the applicant's proposed Notice of Appeal beneficially toward the applicant, I assume that this ground is intended to allege, as did the third ground, that the applicant had been denied procedural fairness before the Tribunal and that the Federal Circuit Court erred in failing to identify that the Tribunal had committed jurisdictional error of that kind. As I have mentioned, the applicant in this Court is faced with the difficulty that he did not raise that issue in any ground of review before the Federal Circuit Court. This Court cannot find that the decision of the Federal Circuit Court is attended with doubt in respect of any grounds that were not raised below.
55 As I have mentioned, the discretion to grant leave to appeal against an interlocutory judgment is unfettered. The principles stated in Décor Corporation guide the exercise of my discretion but are not to be taken as an inflexible and determinative test. I have, in the exercise of my discretion, examined the judgment of the Federal Circuit Court in order to determine whether the decision is attended with sufficient doubt to warrant its reconsideration for reasons other than those expressed in the proposed grounds of appeal. In my assessment, there is nothing in the materials before me that would justify the grant of leave on any such alternative ground.