Anselm v Minister for Immigration - [2014] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANSELM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA2379

Catchwords:
MIGRATION – Whether extension of time should be granted under s.477(2) of the Act – whether Tribunal was obliged to make enquiries with educational institution regarding confirmation of enrolment – no obligation – substantive claim has no reasonable prospects of success – application for extension refused.

Legislation:

Migration Act 1958 (Cth), ss.477(2), 476, 477(1), 31, 424

Migration Regulations 1994, Reg.2.01, cls.572.223, 572.223(2)(a)(ii), 572.235, 1222, 8202

First Applicant:

Jolly Anselm

Second Applicant:

JOSEPH ALBERT FRANCIS

Third Applicant:

ADLER JOSEPH ALBERT

First Respondent:

Minister For Immigration & Border Protection

Second Respondent:

Migration Review Tribunal

File Number:

MLG 1784 of 2013

Judgment of:

Judge Jones

Hearing date:

7 July 2014

Date of Last Submission:

7 July 2014

Delivered at:

Melbourne

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Self Represented

Solicitors for the Applicant:

Self Represented

Counsel for the Respondents:

Mr Priest

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) is refused.
(2) The applicants’ pay the Minister’s costs in the amount of $6,464.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLG 1784 of 2013

Jolly Anselm

First Applicant

And

JOSEPH ALBERT FRANCIS

Second Applicant

And

adler joseph albert

Third Applicant

And

Minister For Immigration & Border Protection

First Respondent

Migration Review Tribunal

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 23 October 2013 the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 17 September 2013 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to reject the applicants’ application for a Student (Temporary) (Class TU) visa (“the visa”).
2. The second and third applicants’ seek visas as members of the first applicant’s family unit.
3. The first applicant arrived in Australia as the holder of a Student (Temporary) (Class TU) visa on 24 June 2009 (CB 40). She enrolled in Certificate III in Hospitality and Diploma of Hospitality Management at Brighton Institute of Technology, starting on 27 July 2009. She then deferred her studies on 26 August 2009. She again deferred her studies on 14 May 2010. Between 24 June 2010 and 14 June 2011 the applicant did not study, nor was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 2379
Decision Date: 24 October 2014

CaseChat Overview and Summary

Anselm (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse an extension of time to appeal a decision of the Migration Review Tribunal. The Tribunal had refused to grant an extension of time under section 477(2) of the Migration Act 1958 (Cth) to appeal a decision that had affirmed the refusal of Anselm's visa application.

The primary legal issue before the court was whether the Migration Review Tribunal was obliged to make enquiries with Anselm's educational institution to confirm his enrolment before refusing an extension of time. A secondary issue was whether Anselm's substantive claim had reasonable prospects of success, which was a relevant consideration for the Tribunal in determining whether to grant an extension of time.

Judge Jones held that the Tribunal was not obliged to make enquiries with the educational institution. The court reasoned that the onus was on the applicant to provide sufficient evidence to satisfy the Tribunal that an extension of time should be granted. In this instance, Anselm had failed to provide satisfactory evidence of his enrolment, and therefore, the Tribunal was entitled to conclude that his substantive claim had no reasonable prospects of success. This conclusion meant that the Tribunal was not required to grant an extension of time.

The application for judicial review was dismissed.

Orders