Chundru v Minister for Immigration and Border Protection

[2017] FCA 480

FEDERAL COURT OF AUSTRALIA

Chundru v Minister for Immigration and Border Protection [2017] FCA 480

Appeal from:

Application for extension of time:  Chundru v Minister for Immigration [2016] FCCA 3301

File number(s):

VID 1419 of 2016

Judge(s):

GREENWOOD J

Date of judgment:

1 May 2017

Date of publication of reasons:

9 May 2017

Catchwords:

MIGRATION – consideration of an application for an extension of time for leave to appeal

Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238

Date of hearing:

1 May 2017

Date of last submissions:

1 May 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Sparke Helmore Lawyers

ORDERS

VID 1419 of 2016

BETWEEN:

SRI SATYA SEKHAR CHUNDRU

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	1 MAY 2017

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the costs of the first respondent of and incidental to the application to be taxed or agreed. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT

GREENWOOD J:

1. This is an application for an extension of time for leave to appeal from a decision of the Federal Circuit Court of Australia delivered at Melbourne on 17 November 2016:  Chundru v Minister for Immigration [2016] FCCA 3301.

2. The application was filed by the applicant on 9 December 2016 supported by an affidavit filed on that day.  The position is that the applicant has filed the application for leave to appeal eight days out of time.  I propose to examine the question of whether leave should be given having regard to the merits of the matter and not simply by reason of the failure to file within time. 

3. However, in relation to that matter I should mention these things.  In the application for an extension of time and leave to appeal the applicant says that he was suffering from “serious backpain” as he had fallen down or fallen from his bike, and was not able to “get down from the bed” or leave his bed, as I understand his contention.  Also, the applicant said that he found it “very hard to walk”.  He says that the grounds of the application (explaining the delay) involve the notion that he “walk[s] with back pain” and has “body pains as well”, from falling from his bike.  He says that he has not been feeling well and he has not been able to collect his documents. 

4. I should also mention briefly that when it comes to the question of whether an extension of time should be granted and whether leave to appeal ought to be granted, the Court has regard to matters of whether there is a question warranting the grant of leave and thus an extension of time.  On that issue, the Court has regard to the observations of the High Court in Bienstein v Bienstein (2003) 195 ALR 225, where McHugh, Kirby and Callinan JJ said that the “principles that govern the grant of leave to appeal are well established” and an “applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave”. Their Honours also observed that “[t]he applicant must also show that substantial injustice will result from a refusal of leave to appeal”. These notions are, of course, entirely consistent with the observations of the Full Court in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398‑400, and in a more recent incarnation, these principles have been restated by the Full Court of this Court in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 and, in particular, [25] and following. So, these are the matters that inform the exercise of the discretion.

5. The underlying matter involved a consideration by way of statutory review before the Migration and Review Division of the Administrative Appeals Tribunal of the applicant’s application for a Student (Temporary) (Class TU) visa under the provisions of the Migration Act 1958 (Cth). The question under review came before the Tribunal and the Tribunal observed that the issue before the delegate was whether the applicant met the criterion in cl 572.223(2) of Sch 2 to the Migration Regulations 1994 although the question before the Tribunal had become whether, at the time of the decision, that is to say the Tribunal’s decision, the applicant met the “enrolment requirements” for a “student visa”.  The Tribunal then set out aspects of the relevant requirements and then proceeded to make some observations about the matters relevant to the questions in issue before it. 

6. An important element of the considerations for the Tribunal was whether the applicant was enrolled in a relevant course.  The Tribunal said this at para 8 of its reasons:

   At the hearing the Tribunal asked the applicant in what courses he was enrolled.  He responded that he was not enrolled in any courses nor did he have any offers of enrolment.  PRISMS records confirm that the Graduate Diploma in Business and the Master of Business Administration courses in which he had been enrolled at the time of his application had been cancelled.  The Tribunal explained the consequences of his lack of enrolment and tried to elicit more information from him.  The applicant simply responded that he had been depressed and his course had been cancelled and he had not done anything about it. 

7. The Tribunal also notes:  “There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment in any application course of study.  Therefore, cl. 570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met”.  The Tribunal also observed that furthermore, there was no evidence that the applicant met the criteria for a Subclass 576 or a Subclass 580 visa or the remaining Subclasses of Class TU.  Further, the Tribunal noted that the applicant is neither supported by the relevant Minister as required by cl 576.229, nor has the applicant made the visa application on the basis of being a “Student Guardian”.  For all of these reasons, based on the evidence before the Tribunal, the Tribunal affirmed the decision under review before it. 

8. That led to an application before the Federal Circuit Court of Australia in which the applicant sought the issue of the constitutional writs on the ground that the decision‑maker had fallen into jurisdictional error. In the grounds of the application before the Federal Circuit Court, the applicant identified three matters. The first was that the Tribunal’s decision “is affected by jurisdictional error”. The second ground was that the Tribunal “did not take into account relevant considerations and that the decision is wrong in law”. The third ground was that the Tribunal “did not comply with s 424AA of the Migration Act 1958 (Cth)”.

9. That matter came before the Federal Circuit Court of Australia for determination and that Court delivered ex tempore reasons in support of an order dismissing the application before it.  In the course of doing so, the Federal Circuit Court of Australia accurately and correctly identified the findings of the Tribunal and the foundation for those findings.  In the Federal Circuit Court, the Court observed that the three grounds of review which I just recited were generic, imprecise and pro forma.  The Court observed that none of those three grounds had any substance.  Nor were they particularised.  Nor were any facts given to support the assertion that the Tribunal’s decision was affected by jurisdictional error.  In the result, the Federal Circuit Court concluded that the decision was not so affected and that it appeared to be and was “factually correct”.  The Federal Circuit Court described the third ground as “hopeless”:  see [10] ‑ [12] of the reasons of the Federal Circuit Court. 

10. The matter comes before this Court in which an extension of time is sought for leave to appeal.  I am satisfied that the applicant has failed to make out any arguable basis for error on the part of the Federal Circuit Court of Australia in the way in which it dealt with the questions in issue before it.  I am also satisfied that, having looked at the matters carefully, there is no basis upon which I can see that the Federal Circuit Court of Australia has fallen into error in failing to identify jurisdictional error on the part of the Tribunal.  There is no jurisdictional error on the part of the Tribunal. 

11. The applicant before this Court is not represented and appears on his own behalf.  He has not made any submissions in support of the application and he says that he has not been able to obtain legal assistance in that regard.  For that reason, I have read the papers carefully with a view to identifying precisely the nature of the application before the Tribunal; precisely the basis upon which the Tribunal reached its decision; and precisely the basis upon which the Federal Circuit Court of Australia addressed the contentions which were before it.  As I have already mentioned, the contentions before the Federal Circuit Court of Australia are put in very limited terms with a high level of abstraction.  They contain no particular content.  It is difficult to discern precisely what is conveyed by them.  However, if the fundamental matter is that the Federal Circuit Court of Australia fell into error by failing to find jurisdictional error on the part of the Tribunal, then I cannot see any basis, let alone any arguable basis, for that conclusion. 

12. It must necessarily follow that the application for leave for an extension of time and for leave to appeal must be dismissed. 

13. Accordingly the application is dismissed with an order that the applicant pay the first respondent’s costs of and incidental to the application to be taxed or agreed. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        9 May 2017