Potlacheruvu v Minister for Immigration and Border Protection
[2014] FCA 499
•16 May 2014
FEDERAL COURT OF AUSTRALIA
Potlacheruvu v Minister for Immigration and Border Protection [2014] FCA 499
Citation: Potlacheruvu v Minister for Immigration and Border Protection [2014] FCA 499 Appeal from: Application for extension of time: Potlacheruvu v Minister for Immigration and Border Protection [2014] FCCA 389 Parties: NITHIN KUMAR POTLACHERUVU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 109 of 2014 Judge: TRACEY J Date of judgment: 16 May 2014 Catchwords: MIGRATION – application for extension of time and for leave to appeal from Federal Circuit Court – refusal of a Student (Temporary) (Class TU) visa Legislation: Federal Circuit Court Rules 2001 (Cth) – r 44.12
Migration Regulations 1994 (Cth) – sch 2 cll 570.232, 571.232, 572.231, 572.223, 537.321, 574.231, 575.321Cases cited: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397 – cited
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 – cited
Potlacheruvu v Minister for Immigration and Border Protection [2014] FCCA 389 – cited
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 – citedDate of hearing: 16 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 109 of 2014
BETWEEN: NITHIN KUMAR POTLACHERUVU
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
16 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The applicant’s applications for an enlargement of time within which to appeal and leave to appeal each be refused.
2.The applicant pay the first respondent’s costs of the applications.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 109 of 2014
BETWEEN: NITHIN KUMAR POTLACHERUVU
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
16 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
There are before the Court applications for an extension of time within which to appeal and for leave to appeal against a decision of the Federal Circuit Court of Australia (“the FCC”) delivered on 31 January 2014: see Potlacheruvu v Minister for Immigration and Border Protection [2014] FCCA 389. The Court dismissed an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). Leave is required because the FCC’s decision was made under Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and was, therefore interlocutory in nature: see Rule 44.12(2).
BACKGROUND
The applicant applied for a Student (Temporary) (Class TU) visa on 20 December 2011 in order to undertake study in Australia. At the time the visa application was lodged, the visa contained a number of subclasses. On 15 February 2012, a delegate of the Minister refused the application on the basis that the applicant failed to satisfy the requirements of clauses 572.223(1) and 572.223(2)(a)(ii)(B) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) because he was “not satisfied that the applicant [was] a genuine applicant for entry and stay as a student.”
THE TRIBUNAL’S DECISION
The applicant appealed to the Tribunal for review of the delegate’s decision.
The issue before the Tribunal was whether the applicant met the enrolment requirements for a student visa under the Regulations. At the time the application was lodged, the applicant was proposing to undertake a Certificate IV in Hospitality (Commercial Cookery) and a Diploma of Hospitality.
The Tribunal concluded that there was no evidence before it that the applicant was, at the time of the decision, enrolled or had a current offer of enrolment for any applicable course of study under clauses 570.232, 571.232, 572.231, 573.231, 574.231 or 575.231 of the Regulations.
Furthermore, the Tribunal found that there was no evidence that the applicant met the criteria for either Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian), the remaining subclasses of the Class TU visa.
For these reasons, the Tribunal affirmed the decision under review.
THE FEDERAL CIRCUIT COURT’S DECISION
The applicant applied to the FCC for judicial review of the Tribunal’s decision.
He relied on the following grounds:
“a. S.477, Judicial review can be lodged after 35 days after tribunal review has been finalised
b. I am not happy with tribunal decision, applying for judicial review for legitimate decision
c. I do have exceptional circumstances beyond the application previously lodged.” (sic)
The applicant did not challenge the factual findings of the Tribunal. He explained that his financial circumstances prevented him from enrolling in a course.
In his reasons for decision, Judge Riethmuller noted at [3] that:
“[The applicant] has been in Australia for three years and only obtained a Certificate III in Hospitality, that he was already qualified as a cook in Australia and so there seemed to be no additional value to him studying hospitality for another two years, and that it seemed to the delegate that he wanted to undertake short courses simply to remain in Australia rather than to achieve an appropriate educational outcome.”
His Honour recognised that the powers of the FCC are limited to “correcting errors of law made by the tribunal or the Department” and do not extend to “change regulations because of personal circumstances of applicants.”
The FCC concluded that the applicant failed to identify any error on the part of the Tribunal as he was not enrolled in and did not hold any offer of enrolment to be a student and therefore, he was simply not eligible for a student visa.
The FCC dismissed the application with costs.
THE APPEAL PROCEEDINGS
The applicant now seeks to appeal to this Court from the FCC’s decision. His application for leave and draft notice of appeal contained the following grounds:
“1. I am not happy with the decision made by Federal Circuit Court of Australia.
2. I am looking for the justice at Federal court of Australia.” (sic)
In his written submissions, the Minister opposed the application for an extension of time within which to seek leave to appeal. He submitted that the application should not be granted because the proposed appeal had no prospects of success. This was because the FCC decision was not attended with sufficient doubt as to warrant its reconsideration. It was submitted that, for this reason, the application should be refused.
When the application was called on for hearing this afternoon the applicant appeared in person. He had the assistance of an interpreter.
I explained to him that his proposed grounds of appeal did not identify any appealable error which would justify the intervention of this Court. I invited him to identify any legal error which he said had been made by either the Tribunal or the trial judge on which he would seek to rely if leave were granted. He did not identify any such error.
The Court has a broad discretion to grant leave to appeal. The principles to be applied in exercising that discretion were explained in Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397.
The Court also has a broad general discretion to enlarge time within which an appeal might be commenced. There are, potentially, many relevant considerations which might inform the exercise of this discretion: see Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344.
A factor which will weigh heavily in the exercise of both discretions is an applicant’s prospects of successfully prosecuting an appeal should the necessary leave be granted. If a proposed appeal has no prospect of success leave should not, normally, be granted: see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).
In my view the present applications fall into this category. In the absence of any identified appealable errors the proposed appeal would be bound to fail.
DISPOSITION
The applications for an extension of time and for leave to appeal should both be refused with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 16 May 2014
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