Grewal v Minister for Immigration and Border Protection
[2018] FCA 341
•27 February 2018
FEDERAL COURT OF AUSTRALIA
Grewal v Minister for Immigration and Border Protection [2018] FCA 341
Appeal from: Application for extension of time: Grewal v Minister for Immigration & Anor [2017] FCCA 2048 File number: QUD 466 of 2017 Judge: RANGIAH J Date of judgment: 27 February 2018 Catchwords: MIGRATION – appeal from the Federal Circuit Court – refusal to grant student visa – application for extension of time to file a notice of appeal – whether proposed appeal has prospects of success - application dismissed with costs Legislation: Federal Court Rules 2011 (Cth) r 36.03(a)(i)
Migration Regulations 1994 (Cth) Sch 2, cl 573.223(1)(a)
Date of hearing: 27 February 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr L Helsdon Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice
Table of Corrections 20 March 2018 In the first sentence of paragraph 9, the word “respondent’s” has been replaced with “Tribunal’s”. ORDERS
QUD 466 of 2017 BETWEEN: ARVINDER SINGH GREWAL
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
27 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal is dismissed.
2.The applicant is to pay the respondent’s costs of the application fixed in the amount of $1756.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The applicant applies for an extension of time to appeal from a judgment of the Federal Circuit Court of Australia delivered on 21 August 2017.
The application was filed seven days outside the period allowed for the filing of a notice of appeal under r 36.03(a)(i) of the Federal Court Rules 2011 (Cth). The first respondent accepts that the applicant’s delay is not extensive and there is no prejudice occasioned by the delay. Although the first respondent does not accept that the applicant has provided a reasonable explanation for the delay, he accepts that the determining factor will be the merits of the proposed appeal. Accordingly, I will turn to consider the merits.
The Federal Circuit Court dismissed the applicant’s application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 15 November 2016. The Tribunal had affirmed a decision of a delegate of the first respondent made on 2 November 2015 refusing to grant the applicant a Student (Temporary)(Class TU) visa.
The main issue before the Tribunal concerned Sch 2, cl 573.223(1)(a) of the Migration Regulations 1994 (Cth), which required the Tribunal to be satisfied that the applicant genuinely intended to stay in Australia temporarily at the time of the decision. The Tribunal was not satisfied that the applicant intended to stay in Australia only temporarily for the following reasons.
Firstly, the Tribunal thought that it was significant that in the three years and four months since the applicant had arrived from India, he had only completed three educational courses, each of which was six months long.
Secondly, the Tribunal noted that since mid-2015, the applicant had been enrolled in a Graduate Diploma of Business course but had not completed any subjects. Even accepting that the applicant had been injured in a motor vehicle accident in 2016, the Tribunal was concerned that he had not completed any subjects in 2015, and the Tribunal did not accept his explanation for his failure to do so.
Thirdly, the Tribunal noted that the applicant’s stated intention was to open a garage in a village in rural India. He had enrolled in a Graduate Diploma in Business and a Master of Professional Accounting course. The Tribunal did not regard it as plausible that the applicant would enrol in such courses for the purposes of a business of the type he claimed he wanted to establish in India.
The Tribunal found that the applicant was using the student visa program to maintain residence in Australia. The Tribunal was not satisfied that the applicant intended to stay in Australia only temporarily. The Tribunal concluded that the applicant did not meet the criterion in cl 573.223(1)(a). It affirmed the delegate’s decision to refuse to grant the applicant the visa.
The applicant then sought review of the Tribunal’s decision before the Federal Circuit Court. The applicant’s grounds were:
1.Unjust decision made by the delegate of the department and in error to believe my qualification does not relate to the Master’s degree I wish to pursue.
2.Unjust analysis of the genuine temporary entrant statement that was provided.
3.There are numerous instances where people from various educational background chose to study Master of professional accounting as this course will provide them with valuable insight on the principles of business and financial management.
The primary judge dismissed the application with costs, giving ex tempore reasons for doing so.
As to the first ground, the primary judge found that the ground was an impermissible attempt to obtain merits review of the Tribunal’s decision. His Honour considered that the Tribunal’s decision was open on the evidence before it.
As to the second ground, the primary judge found that the applicant’s submissions did not contain any reason as to why the Tribunal’s analysis of his statement was wrong. Again, the primary judge found that this ground was really an attempt at merits review and exposed no jurisdictional error.
As to the third ground, the primary judge found that although the statement expressed in the ground may be true, the Tribunal was of the view that it did not apply to this applicant, and that was a matter within the Tribunal’s purview.
Accordingly, the primary judge found that there was no jurisdictional error on the part of the Tribunal and dismissed the appeal.
Before this Court, the applicant is unrepresented. He did not file any written submissions, but made some oral submissions.
The applicant first sought an adjournment so that he could engage a lawyer. The first respondent opposed any adjournment on the basis that the applicant had already had enough time to obtain legal representation. I accepted the first respondent’s submission. The Federal Circuit Court’s judgment was delivered some six months ago, on 21 August 2017. The applicant has had ample time to find a lawyer. Further, there is no indication that if an adjournment were granted, he would be more successful in finding one now.
The applicant’s draft grounds of appeal before the Court are as follows:
1. That the Federal Circuit Court (FCC) did not give me a reasonable opportunity to appear and present my case and as such I was denied procedural fairness;
2. That the FCC erred in exercising its power to dismiss an application in circumstances where I was not given the opportunity to file and serve all evidence relevant to my application; and
3. That the FCC did not provide sufficient reasons for the decision or make any rulings of fact on the alleged grounds.
The applicant did not elaborate upon the draft grounds of appeal. He merely repeated some of the submissions made to the Tribunal to the effect that he did not know that he was not permitted to change courses under the category of visa he held in 2013. However, that matter, although referred to by the Tribunal, was not regarded by the Tribunal as being of any significance to its decision. In any event, the matter raised by the applicant was not one that could demonstrate error on the part of the primary judge.
I cannot see any merit in the grounds contained in the draft notice of appeal. There is no evidence before the Court supporting the first two grounds. As to the third ground, the primary judge’s reasons explain the Tribunal’s decision, the applicant’s grounds and his Honour’s reasons for rejecting those grounds. In my opinion, they were entirely adequate. In these circumstances, the applicant’s proposed appeal has no realistic prospects of success.
The application for an extension of time to file a notice of appeal should, therefore, be refused with costs. I will order that the costs be fixed in the amount of $1,756.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 14 March 2018
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