FEDERAL COURT OF AUSTRALIA
Ghimire v Minister for Immigration & Border Protection [2014] FCA 899
Citation: Ghimire v Minister for Immigration and Border Protection [2014] FCA 899 Appeal from: Application for extension of time and leave to appeal: Ghimire v Minister for Immigration & Border Protection [2014] FCCA 1025 Parties: ARCHANA GHIMIRE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 593 of 2014 Judge: GILMOUR J Date of judgment: 22 August 2014 Catchwords: MIGRATION – application for extension of time and leave to appeal - primary judge dismissed application for review of Migration Review Tribunal decision pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) - principles relevant to applications for extensions of time and leave to appeal - explanation for delay - whether or not the proposed appeal has any prospects of success - whether or not injustice would result if leave refused – application to extend time refused Legislation: Migration Act 1958 (Cth) ss 359A(1), 499
Migration Regulations 1994 (Cth)
Federal Court Rules 2011 (Cth) r 35.13(a)
Federal Circuit Court Rules 2001 (Cth) rr 44.05, 44.11, 44.12(1)(a)Cases cited: Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564
Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
Minister for Immigration and Citizenshipv SZIAI (2009) 259 ALR 429
Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238Date of hearing: 18 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr M Newman Solicitor for the Applicant: Newman & Associates Counsel for the Respondents: Ms R Francois Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs Solicitor for the Second Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 593 of 2014
BETWEEN: ARCHANA GHIMIRE
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
22 AUGUST 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time within which to apply for leave to appeal be dismissed.
2.The applicant pay the costs of the first respondent, fixed in the sum of $6,439.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 593 of 2014
BETWEEN: ARCHANA GHIMIRE
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
22 AUGUST 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time within which to seek leave to appeal and an application for leave to appeal from orders made by a…
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Details
- Case
- [2014] FCA 899
- Decision Date
CaseChat Overview and Summary
In the matter of Ghimire v Minister for Immigration, the applicant sought an extension of time and leave to appeal against the Federal Circuit Court's dismissal of her application for judicial review of a decision by the Migration Review Tribunal. The Tribunal had upheld a decision by the Minister for Immigration not to grant the applicant a Student (Temporary) visa. The primary judge dismissed the applicant's application for judicial review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The applicant applied for an extension of time to seek leave to appeal and leave to appeal from the primary judge’s decision. The applicant’s application for the Student visa was refused by the Minister because she did not satisfy the Minister that she was a genuine applicant for entry and stay as a student in Australia. The Tribunal considered the applicant's immigration history and found that she had enrolled in a significant number of short and inexpensive courses that had been cancelled for non-commencement of studies.
The court was required to determine whether the application for an extension of time and leave to appeal should be granted. The principles relevant to such applications were considered, including whether the applicant had provided an explanation for the delay, whether the proposed appeal had any prospects of success, and whether injustice would result if leave were refused. The court considered the applicant's explanation for the delay, which was that she had been unable to obtain advice from a lawyer. However, the court noted that the applicant had not demonstrated any special circumstances that justified the delay. The court also considered the prospects of success of the proposed appeal. The court found that the proposed appeal lacked merit, as the Tribunal's decision was supported by the evidence and there was no evidence of injustice that would result if leave were refused.
The court refused the application to extend time within which to seek leave to appeal. The court found that the proposed appeal lacked merit, and the applicant had not demonstrated any special circumstances that justified the delay. The court also found that there was no evidence of injustice that would result if leave were refused. The applicant was ordered to pay the costs of the first respondent, fixed in the sum of $6,439.
The court was required to determine whether the application for an extension of time and leave to appeal should be granted. The principles relevant to such applications were considered, including whether the applicant had provided an explanation for the delay, whether the proposed appeal had any prospects of success, and whether injustice would result if leave were refused. The court considered the applicant's explanation for the delay, which was that she had been unable to obtain advice from a lawyer. However, the court noted that the applicant had not demonstrated any special circumstances that justified the delay. The court also considered the prospects of success of the proposed appeal. The court found that the proposed appeal lacked merit, as the Tribunal's decision was supported by the evidence and there was no evidence of injustice that would result if leave were refused.
The court refused the application to extend time within which to seek leave to appeal. The court found that the proposed appeal lacked merit, and the applicant had not demonstrated any special circumstances that justified the delay. The court also found that there was no evidence of injustice that would result if leave were refused. The applicant was ordered to pay the costs of the first respondent, fixed in the sum of $6,439.
Orders
Orders of the court
1. The application for an extension of time within which to apply for leave to appeal be dismissed.
2. The applicant pay the costs of the first respondent, fixed in the sum of $6,439.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
This is an application for an extension of time within which to seek leave to appeal and an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia (the primary judge) on 21 May 2014. The primary judge dismissed the applicant’s application for judicial review of a decision of the second respondent (Tribunal) pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) (Class TU) visa (Visa).Background The applicant first arrived in Australia on 16 September 2008. On 9 July 2012, the applicant applied for the Visa. In her application she provided details of three enrolments, in Business Administration, Small Business Management and Marketing. However, all three were cancelled on 27 July 2012 for non-commencement of these studies. On 8 February 2013, the application was refused by the delegate. The delegate refused to grant the Visa because the applicant did not satisfy the Minister under the Migration Regulations 1994 (Cth) (Regulations) that at the time of decision she was a genuine applicant for entry and stay as a student in Australia. In making that determination the delegate (and later the Tribunal) was required to have regard to Direction No 53, Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications (Direction), made pursuant to s 499 of the Migration Act 1958 (Cth) (Act). The factors are not to be used as a checklist but are intended to guide decision makers to weigh up the applicant’s circumstances as a whole in reaching a finding as to whether the applicant satisfies the genuine temporary entrant criterion. The factors include, amongst others, the applicant’s circumstances in their home country as well as the applicant’s potential circumstances in Australia. Particularly relevant to this application, cl 14(b)(iii) of the Direction provides that in considering the applicant’s immigration history, decision makers must have regard to previous travels to Australia or other countries, including: the amount of time the applicant has spent in Australia and whether the Student visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification. (Emphasis added). On 15 February 2013, the applicant applied to the Tribunal for review of the delegate's decision. On either 18 or 21 November 2013, the Tribunal, by letter, wrote to the applicant pursuant to s 359A(1) of the Act and invited her to comment on information which was set out in the letter and had been obtained from the Provider Registration and International Student Management System (PRISMS) records. The letter included the following:The particulars of the information are:•In your visa application you provided details of Confirmation of Enrolments (CoEs) for courses in: Certificate III in Business Administration, from 14 January 2013 to 13 October 2013; Certificate IV in Small Business, from 14 October 2013 to 13 July 2014; and Diploma of Marketing, from 14 July 2014 to 11 January 2015. •Electronic (PRISMS) records before the Tribunal indicate that: ° All three of these enrolments were cancelled on 27 July 2012 for non-commencement of studies.° You are currently studying a course in Diploma of Business, from 4 November 2013 to 4 May 2014.° Since you first arrived in Australia on 16 September 2008 you have been enrolled in a total of 19 courses. Of these enrolments, 14 are shown as having been cancelled and only 3 are shown as having been finished.° A significant number of your enrolments have been for short and inexpensive courses, and they have involved unrelated fields of study. The above information is relevant to the review because it might lead the Tribunal to conclude that you do not satisfy clause 572.223(1) as you are not a genuine applicant for entry and stay in Australia as a student; further, the information might lead the Tribunal to conclude that you do not satisfy clause 572.223(1)(a) as the Tribunal might conclude that you do not intend genuinely to stay in Australia temporarily. If the tribunal relies on this information in making its decision, it would be the reason, or a part of the reason, for affirming the delegate’s decision to refuse to grant you the student visa. You are invited to give comments on or respond to the above information in writing.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Finally, with respect to the second criterion for the grant of leave, the applicant has not put on any evidence that any injustice that would result should leave be refused. This is particularly relevant in circumstances where the applicant applied for the Visa over two years ago for the purpose of undertaking a Diploma in Business course which ran for the period 4 November 2013 to 4 May 2014. There is no evidence that this course was completed. Thereafter three other enrolments due to commence on various dates in 2014 were cancelled for various reasons including non-commencement by the applicant of her studies. It is not clear exactly when these cancellations occurred. Another enrolment due to commence in 2014 was marked “approved”. I do not take this to refer to the fact that it was commenced and certainly not that it was “finished”, which is a description given to other of her enrolments. Conclusion I would refuse the application to extend time within which to seek leave to appeal as the proposed appeal lacks merit. The application ought be dismissed with costs.
Ratio Decidendi
Legal Principle Established
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