Kwatra v Minister for Home Affairs

[2019] FCA 1308

FEDERAL COURT OF AUSTRALIA

Kwatra v Minister for Home Affairs [2019] FCA 1308

Appeal from:

Kwatra v Minister for Home Affairs & Anor [2019] FCCA 197

File number:

NSD 268 of 2019

Judge:

BURLEY J

Date of judgment:

15 August 2019

Catchwords:

MIGRATION – student visa refused pursuant to s 65 of the Migration Act 1958 (Cth) by the Administrative Appeals Tribunal – no jurisdictional error found by Federal Circuit Court of Australia – application for extension of time and leave to appeal – where no reasonable prospects of success on appeal – application dismissed

Legislation:

Education Services for Overseas Students Act 2000 (Cth)

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules 2011 (Cth) rr 35.13, 35.14

Migration Act 1958 (Cth) ss 65

Migration Regulations 1994 (Cth) reg 1.03, sch 2 cls 500.1, 500.211, 500.212

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; 33 FCR 397

Kwatra v Minister for Home Affairs & Anor [2019] FCCA 197

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585

Date of hearing:

15 August 2019

Registry:

New South Wales

Division:

General

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs: 

22

Counsel for the Applicant:

The Applicant was self-represented at the hearing.

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice, save as to costs.

ORDERS

NSD 268 of 2019

BETWEEN:

ANMOL KWATRA

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	15 AUGUST 2019

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the first respondent’s costs.

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

REVISED FROM TRANSCRIPT

BURLEY J:

1. The applicant, Anmol Kwatra, is a citizen of India who arrived in Australia on 13 March 2013 as a holder of a student visa. From July 2013 to March 2016, he completed courses in English and part of a Bachelor of Commerce degree. In March 2016, Mr Kwatra’s confirmation of enrolment was cancelled. Mr Kwatra enrolled in another course and applied for a subsequent student visa on 20 September 2016.  On 6 December 2016, he was refused a student visa by a delegate of the Minister for Home Affairs pursuant to s 65 of the Migration Act 1958 (Cth). Mr Kwatra then applied to the Administrative Appeals Tribunal for a review of the delegate’s decision, which on 15 March 2018 affirmed the delegate’s decision not to grant the visa. By that time, Mr Kwatra’s enrolment had been cancelled again and he was not a full-time student. He then sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (FCCA), which dismissed his application on 1 February 2019 in Kwatra v Minister for Home Affairs & Anor [2019] FCCA 197.

2. Mr Kwatra then filed an application for leave to appeal in this court. Leave to appeal is required, because the decision of the FCCA was interlocutory and an appeal is not available without prior leave; s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Furthermore, the application for leave to appeal was not filed within 14 days of the FCCA decision as required by r 35.13 of the Federal Court Rules 2011 (Cth) (FCR). Accordingly, he requires an extension of time under FCR 35.14. 

3. Mr Kwatra filed an affidavit in support of his application which included attached copies of the FCCA’s decision and his draft Notice of Appeal. In his originating application and affidavit, he sets out an explanation for the late filing of the application.  He states that he appeared before the FCCA when his application was refused, but was not aware the time limit to lodge an appeal was 14 days rather than 21 days until he attended the Federal Court registry and was informed that he was out of time to file his appeal.  He asks this Court to accept his application, as he believes he has an arguable case.

4. In Mr Kwatra’s draft notice of appeal, he includes the following proposed grounds for appeal:

   (1)I continue to rely on the grounds listed in my Application under Migration Act with the particulars.

   (2)I do not agree with the decision of the Tribunal neither with the judgment of His Honour judge Driver because I am a genuine student visa applicant and the Tribunal misunderstood my circumstances.

   (3)I reserve my right to lodge further explanation and argue the judgment of his Honour Driver as well as the decision of the Tribunal.

5. The grounds of review listed in his application before the FCCA are set out below. 

6. Mr Kwatra represented himself at the hearing and made oral submissions in support of his application. The first respondent was represented by the Australian Government Solicitor, who filed written submissions in advance of the hearing and also presented oral submissions.

   THE DECISION OF THE TRIBUNAL

7. The issue before the Tribunal was whether Mr Kwatra was enrolled in an approved course of study as required for the grant of a student visa under cl 500.211 of schedule 2 of the Migration Regulations 1994 (Cth). “Course of study” was, at the time of the Tribunal’s decision, relevantly defined by cl 500.111 to include a full-time registered course, whereas “registered course” is defined by reg 1.03 to mean a course of educational training provided by an institution, body or person that is registered under division 3 of part 2 of the Education Services for Overseas Students Act 2000 (Cth) to provide the course to overseas students.

8. The Tribunal noted that Mr Kwatra had studied his Bachelor degree in Australia until March 2016, when his enrolment was cancelled due to being unable to pay course fees. He then enrolled in and completed an English course. He gave evidence that he had lost money gambling, but that after his mother visited him in Australia and gave him some life lessons, he wanted to obtain another visa and to complete his studies. Whilst the Tribunal took that evidence into account, it ultimately affirmed the delegate’s decision, because at the time of the decision, Mr Kwatra was not a full-time student enrolled in a registered course and so did not meet the requirements of cl 500.211.

   THE DECISION OF THE FCCA

9. Mr Kwatra relied on the following grounds of review before the FCCA:

   1.The Tribunal, based on then called Department of Immigration and Border Protection ‘DIBP’ decision, denied the Applicant appeal that he has fulfilled significantly the student visa application requirement and meet the visa application of student (Temporary) (Class TU) visa hence misconstrued the requirement by the DIBP.

   Particulars

   1.1The Tribunal misconstrued the requirement by the DIBP decision to refuse the visa under clause 500.211(a) in Schedule 2 of the migration Regulations.

   1.2The Tribunal failed to consider the Applicant has complied substantially all student visa conditions hence denied procedural fairness at the time of tribunal hearing.

   1.3Applicant obeyed substantially student visa condition hence Tribunal failed to consider the applicant intends genuinely to stay in Australia temporarily.

   2.The Tribunal committed jurisdictional error when took into account irrelevant considerations by DIBP and constructively failed to consider the requirement of visa grant was met hence misconstrued the criteria or applied wrong test regarding the grant f the visa application of subclass 500.

   Particulars

   1.1The Tribunal, based on the decision by DIBP, failed to consider the Applicant has and meet the requirement of visa grant clause 500.211 of the applicant is enrolled in a registered course of study.

   1.2The Tribunal failed to consider that applicant has met all other relevant requirement to grant of student visa subclass 500.

10. The FCCA invited the applicant to make submissions before it at the hearing. He said that he encountered difficulties in attempting to pursue his studies and felt that he is trapped because he is unable to get a visa to pursue his studies, and on the other hand, he cannot pursue his studies because he has not got a student visa. The FCCA noted that submission, but said that it was not a problem which either it or the Tribunal could solve. 

11. In relation to ground 1, the FCCA found that the Tribunal correctly applied cl 500.211, as the only finding open to it on the evidence was that Mr Kwatra was not involved in a relevant course of study as required, which was confirmed by Mr Kwatra’s own evidence. The FCCA said that any complaint that the Tribunal failed to consider whether he met the requirements of cl 500.212 of the Regulations was misconceived, as the Tribunal was not confined to addressing the issues that were considered by the delegate of the Minister. Finally, Mr Kwatra was afforded procedural fairness, as the Tribunal had put Mr Kwatra on notice by way of letter that the dispositive issue before it was that a confirmation of enrolment was required for the grant of the student visa.

12. In relation to ground 2, the FCCA said that the Tribunal had considered whether Mr Kwatra was enrolled in a registered course of study, as the fact that he was not formed the basis for the Tribunal’s decision. The FCCA also found, as for ground 1, that the Tribunal was not required to consider whether the applicant met the requirements of cl 500.212 of the Regulations. The FCCA concluded that Mr Kwatra had failed to identify any alleged irrelevant considerations in the Tribunal’s reasoning.

13. Accordingly, Mr Kwatra’s application to the FCCA was dismissed. 

    THE PRESENT APPLICATIONS

14. I turn to consider the present applications for leave to file an application for leave to appeal out of time, and for leave to appeal from the decision of the FCCA. In considering the question of the grant of the leave of appeal, I must take into account the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; 33 FCR 397 (Sheppard, Burchett and Heerey JJ), to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review, and, further, if the judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

15. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and to inquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] – [63] (Mortimer J). An evaluation of the prospects of success of the proposed grounds of appeal is also relevant to the application for an extension of time within which to file the application for leave to appeal. Accordingly, it is convenient to consider both of the applications in that context.

16. In this regard, I commence my consideration of this application with the observation, which is apt for many such applications, that neither this Court nor the FCCA has jurisdiction to decide afresh from the evidence whether the applicant satisfies the criteria for the grant of the visa or to grant the applicant a visa. As such, neither court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the applicant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the applicant the visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the FCA Act.

17. Clause 500.2 of schedule 2 to the Regulations, as at the time of Mr Kwatra applied for the visa, provided in relevant part:

    Primary criteria. 

    Note: 

    …

    All criteria must be satisfied at the time a decision is made on the application.

18. Clause 500.211 of schedule 2 to the Regulations, as at the time the applicant applied for the visa, provided in relevant part:

    One of the following applies: 

    (a)  the applicant is enrolled in a course of study. 

    …

19. The fact of the matter is that Mr Kwatra was not enrolled in a registered course of study. That fact was not contested by Mr Kwatra. The FCCA was accordingly correct to uphold the decision of the Tribunal on that basis and to reject the contentions in ground 1. It was not a question of whether or not the applicant had “substantially” complied with visa conditions, as particular 1.2 to this ground suggests. Mr Kwatra makes no submission that any of the other requirements of cl 500.211 applied, and it is clear that they do not.

20. Nor has Mr Kwatra demonstrated error in the form of the Tribunal taking into account irrelevant considerations as contended in ground 2. The basal requirement of cl 500.211 was enrolment in a registered course of study in a full-time capacity at the time of the decision – that was not met. Having found this to be so, no error is to be found in the failure to consider satisfaction of other requirements. The learned primary judge did not err in so concluding. In the second ground of the draft Notice of Appeal, Mr Kwatra contends, in effect, that the Tribunal and the primary judge erred in failing to find that he is a genuine student visa applicant and that the Tribunal misunderstood his circumstances. This appears to be directed towards satisfaction of the requirements of cl 500.212 of schedule 2 to the Regulations. However, as I have noted, having failed to satisfy the cl 500.211 requirements, it was not necessary for further consideration to be given of the genuineness or otherwise of the application. Accordingly, insofar as this argument amounts to a separate proposed ground of appeal, it also has no prospects of success.

21. In oral submissions, Mr Kwatra accepted the correctness of the FCCA’s decision and requested another student visa for a period of six months. He said that he had made mistakes, and spent time gambling and failed to study while he was in Australia. He asked the Court to provide him an opportunity to try one more time to complete his studies so that he can return to India with something. Regrettably for Mr Kwatra, as I have noted, this Court is not in a position to revisit the merits of the application, but is directed towards consideration of error on the part of the FCCA and, in turn, the Tribunal. 

22. Having regard to each of the proposed grounds of appeal, my evaluation of the prospects of their success on a reasonably impressionistic level is that they are extremely poor. The weakness of the grounds advanced compels me to the conclusion that it is not in the interests of the administration of justice to grant the leave sought, even had the application for leave been filed within time. Accordingly, the application must be dismissed with costs.

I certify that the preceding 22 (twenty-two) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Associate: 

Dated:       19 August 2019