Moranok v Minister for Immigration and Border Protection
[2019] FCA 149
•15 February 2019
FEDERAL COURT OF AUSTRALIA
Moranok v Minister for Immigration and Border Protection [2019] FCA 149
Appeal from: Moranok v Minister for Immigration & Anor [2018] FCCA 2776 File number: NSD 1720 of 2018 Judge: YATES J Date of judgment: 15 February 2019 Catchwords: MIGRATION – application for extension of time and leave to appeal – refusal to grant student visa – where applicant not enrolled in a course of study Legislation: Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (Cth) Sch 2 cll 572.223, 572.231
Federal Court Rules 2011 r 36.03
Date of hearing: 15 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Mr A Markus of the Australian Government Solicitor ORDERS
NSD 1720 of 2018 BETWEEN: MONTAKRAN MORANOK
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
15 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an extension of time, filed on 5 September 2018, be dismissed.
2.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)YATES J:
This is an application to extend time within which to bring an appeal from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 14 August 2018. By its judgment, the Circuit Court dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 December 2015. The delegate refused to grant the visa because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student, and therefore did not satisfy the requirement cl 572.223(1)(a) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The applicant sought review by the Tribunal. A hearing before the Tribunal was conducted on 20 April 2017. The Tribunal concluded that the decision under review should be affirmed, although it reached that decision on a different ground to the ground on which the delegate had relied.
To explain, at the relevant time, cl 572.231 of Sch 2 to the Regulations required that, at the time of the visa application, the applicant be enrolled in, or be subject to an offer of enrolment in, a course of study that is a principal course of an applicable type specified under reg 1.40A of the Regulations. The Tribunal noted that the applicant’s enrolment in her Certificate IV in Information Technology and Diploma of Information Technology at Strathfield College had been cancelled on 15 January 2016 for non-commencement of studies. The applicant confirmed that her enrolment had been cancelled, although she said that she had attended in any event. Importantly, however, at the hearing before the Tribunal, the applicant confirmed that she was not enrolled in, or subject to an offer of enrolment in, any course of study.
In its Decision Record, the Tribunal recorded the following matters:
11.The applicant said she had not enrolled in any further courses after her enrolment was cancelled in January 2016. She told the Tribunal that as Strathfield College had cancelled her enrolment she did not think that she could enrol in any further courses. The Tribunal attempted several times to ascertain from the applicant who had told her that. Her responses were evasive and she referred to the letter or email she received from Strathfield College cancelling her enrolment. The applicant told the Tribunal that she thought that once an enrolment was cancelled she could not enrol in any further courses. Pursuant to the provisions of s. 359AA the Tribunal discussed with the applicant her Provider Registration and International Student Management System (PRISM) records, the applicant was also shown a copy at the hearing. The information contained within the records showed that the applicant had previously had enrolments cancelled on 9 occasions and that she had gone on to enrol in further courses, therefore the Tribunal had difficulty accepting her claim that she did not know that she could enrol in new course once her enrolment was cancelled. The applicant chose to respond immediately and provided the unsatisfactory responses that she thought that it might be different this time as her visa was actually refused and that her case was in the hands of her agent.
As the applicant could not satisfy an essential criterion for the visa she had applied for, the Tribunal affirmed the delegate’s decision albeit, as I have said, on a different ground.
The applicant sought judicial review of the Tribunal’s decision in the Circuit Court on three grounds.
First, the applicant contended that the Tribunal had made a jurisdictional error. This ground was not particularised in the Application as filed and the applicant made no written or oral submission in support of it. The Circuit Court therefore rejected it.
Secondly, the applicant contended that the Tribunal ignored the fact that she met the requirement of cl 572.223 of Sch 2 to the Regulations to be a genuine student. This ground was misconceived because, although the delegate relied on it, the Tribunal did not. The Tribunal found that the applicant had not satisfied the requirements of cl 572.231. The Circuit Court therefore rejected the second ground.
Thirdly, the applicant contended that the Tribunal erred in refusing to accept the reason why the applicant did not enrol in any course after her enrolment at Strathfield College (referred to above) was cancelled. The Circuit Court found that this contention was nothing but an attack on the merits of the Tribunal’s reasons for decision and rejected the third ground accordingly.
In the result, the Circuit Court was not satisfied that the Tribunal’s decision was attended by jurisdictional error, and dismissed the application for judicial review.
Rule 36.03 of the Federal Court Rules 2011 requires that a notice of appeal be filed within 21 days after the judgment appealed from was pronounced or the relevant order was made. In the applicant’s case, a notice of appeal should have been filed by no later than 4 September 2018. Here, the application to extend time was filed on 5 September 2018. It was supported by an affidavit in which the applicant deposed that her notice of appeal was not filed within time as she had difficulty in affording the filing fee (she was applying for an exemption) and that she needed more time to gather the evidence in support of her application for the exemption.
In exercising its discretion to extend time in cases such as the present, the Court usually considers the extent of the delay (which, in the present case, is minimal), whether there has been an acceptable explanation for the delay, whether there is any prejudice to the Minister arising from the delay, and whether the proposed appeal has merit.
In the present application, the Minister opposes the extension that is sought. He submits that the explanation for the delay given by the applicant is either inadequate or unsatisfactory, although he accepts that the delay is not extensive and could not be said to have caused any resulting prejudice. More importantly, however, the Minister submits that the applicant’s proposed appeal is without merit.
In this regard, the applicant advances two proposed grounds in her draft notice of appeal. First, she contends that the Circuit Court mistakenly made the judgment that she did not meet the requirements for a student visa. Secondly, she contends that the Circuit Court failed to consider the “academical material” that she had presented. These grounds are not particularised.
On 26 October 2018, the applicant was ordered to file and serve, no later than 10 business days before the hearing of the present application, a written outline of the submissions on which she relies in support of her application, and in support of any appeal were the Court to grant an extension of time, so that the Court can assess whether there is any utility in granting the extension of time. The applicant has not complied with that order. As a consequence, at the commencement of the hearing of the present application, neither the Court nor the Minister was any wiser as to the substance of the proposed appeal. As to the proposed second ground, the Minister had informed the Court through his written outline of submissions that, in fact, the applicant had filed no academic material in the proceeding below.
At the hearing today, I invited the applicant to explain her proposed grounds of appeal. She offered no submissions in support of them.
As to the first proposed ground of appeal, the insurmountable difficulty for the applicant is that she does not satisfy the criteria for the visa that she applied for. That being so, her application for the visa inevitably failed. There was no error on the part of the Tribunal, or for that matter, the Circuit Court, in that regard.
As to the second proposed ground of appeal, there are two difficulties. First, there is no evidence before me that the applicant did provide academic material to the Circuit Court. She did not dispute the contention in the Minister’s written outline of submissions that such material was not provided to the Circuit Court. Secondly, the concern of the Circuit Court was whether the Tribunal’s decision was attended by jurisdictional error. Of importance, therefore, was the material before the Tribunal. There was academic material before the Tribunal, but as I have noted, the applicant’s own evidence was that since the cancellation of her enrolment at Strathfield College on 15 January 2016, she had not enrolled in further courses. That fact alone established that she did not satisfy the criteria for the visa for which she had applied.
On the material before me, I am not persuaded that the appeal which the applicant seeks to advance has any reasonable prospects of success. For this reason alone, there would be no utility in extending time, even though (as I have noted) the delay involved in commencing the appeal is minimal.
In the circumstances, the application to extend time should be dismissed with costs. It is not necessary for me to consider the adequacy of the applicant’s explanation for the delay.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 21 February 2019
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