Sebastian v Minister for Immigration and Border Protection
[2015] FCA 82
•16 February 2015
FEDERAL COURT OF AUSTRALIA
Sebastian v Minister for Immigration and Border Protection [2015] FCA 82
Citation: Sebastian v Minister for Immigration and Border Protection [2015] FCA 82 Appeal from: Application for extension of time: Sebastian v Minister for Immigration & Anor [2014] FCCA 2077 Parties: BRITE SEBASTIAN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: QUD 549 of 2014 Judge: COLLIER J Date of judgment: 16 February 2015 Catchwords: MIGRATION – application for extension of time – no issue of principle Legislation: Migration Regulations 1994 (Cth) Sch 5A of Subclass 572, cl 572.223 of Sch 2
Federal Court Rules 2011 (Cth) r 36.03(a)(i)Cases cited: Hunter Valley Developments v Cohen (1984) 3 FCR 344 cited
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 citedDate of hearing: 16 February 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 21 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr S Richardson Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 549 of 2014
BETWEEN: BRITE SEBASTIAN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
16 FEBRUARY 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application filed 8 October 2014 be dismissed with costs in the amount 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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 549 of 2014
BETWEEN: BRITE SEBASTIAN
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
16 FEBRUARY 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Before the Court is an application for an extension of time in which to appeal from a decision of a Judge of the Federal Circuit Court. The primary Judge had, in turn, dismissed an amended application for review of a decision of the Migration Review Tribunal (“Tribunal”) concerning the applicant’s application for a visa. In particular, the Tribunal had confirmed the decision of the delegate of the Minister that the applicant should be refused a Student (Temporary) (Class TU) visa, as the applicant had failed to demonstrate adequate financial standing in accordance with visa requirements set out in cl 572.223 of Sch 2 to the Migration Regulations 1994 (Cth) (“Regulations”).
There was no appearance at today’s hearing by the applicant. I note that the applicant on 12 February 2015 informed the Brisbane Registry that he did not intend to appear either in person or by telephone, and confirmed this position with my associate when she contacted him by telephone during an adjournment this afternoon.
In my view the application for an extension of time should be dismissed, for reasons to which I now turn.
Background
The applicant, a citizen of India, lodged an application for a Student (Temporary) (Class TU) visa on 15 March 2011. The Tribunal found that the applicant was enrolled in a Certificate IV in Hospitality (Commercial Cookery) commencing 4 February 2013 and finishing 18 March 2013, and had an offer of enrolment in Diploma of Hospitality commencing 15 May 2013 and finishing 15 November 2013.
On 20 June 2011, a delegate of the Minister refused the application for a visa, on the basis that the applicant failed to satisfy the financial capacity requirements of cl 572.223 of Sch 2 to the Regulations.
Tribunal’s decision
On 12 July 2011 the applicant lodged an application for review of the Minister’s decision with the Tribunal. The applicant appeared before the Tribunal on 7 March 2013 to give evidence and present arguments in respect of his application for review.
At the hearing before it the Tribunal noted that documentation provided by the applicant in respect of the amount of funds to meet his course fees, living fees and travel costs were out of date, and further that such funds as he could substantiate appeared to constitute only just over half of the funds required. The Tribunal also noted that the documentation the applicant had submitted in relation to his English language proficiency were inadequate. Accordingly, the Tribunal advised the applicant that it remained concerned that he might not meet the financial capacity or English language proficiency requirements set out in the regulations, and adjourned the application before it for 14 days to allow the applicant time to adduce further documentation. The applicant subsequently submitted further documentation for the Tribunal’s consideration.
In its decision affirming the Minister’s decision not to grant the applicant the visa sought, the Tribunal noted, in summary, as follows:
·At the time of the Tribunal’s decision, the applicant was required to demonstrate access to $18,250, comprising his course fees, living costs and return travel costs.
·On the basis of the letter dated 21 February 2013 from the Brighton Institute of Technology, the Tribunal was satisfied that the applicant had completed more than 75% of the requirements of his principal course, being a Diploma of Hospitality at that institution.
·The applicant sought to rely on loan funds held by his parents. The delegate had found that the first set of financial documents submitted by the applicant were not genuine. The applicant subsequently gave evidence of seven fixed deposits held by his parents totalling together 1.2 million rupees. The Tribunal had concerns about the genuineness of those documents, but even accepting that they were genuine the Tribunal noted that a number of those documents had expired and the Tribunal was not satisfied that the applicant’s parents continued to hold those funds on deposit.
·Further, the total of the amounts alleged by the applicant to be held on deposit by his parents was 800,000 rupees which, when converted to Australian dollars, was less than the amount of funds required to be demonstrated by the applicant. It followed that the applicant continued to fail to substantiate his claim to adequate funds as required by Sch 5A of Subclass 572 of the Regulations.
Decision of the primary Judge
The applicant was not represented before the primary Judge. In the Court below the applicant sought “a declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application”. The primary Judge noted that the original application in the Court below did not reveal any proper grounds of review of the Tribunal’s decision, and that the applicant was ordered to file an amended application.
In the amended application below, the applicant’s grounds of review were as follows:
1. The funds are correct and true.
2. My old subjects credited to new course.
3. If I have certificate IV I don’t want submit IELTS.
After setting out the factual background to the application and the Tribunal’s decision, his Honour continued:
22.In support of his grounds of review, the applicant attempted to rely upon some affidavit material that was not before the tribunal when it made its decision. In those affidavits (there are three of them – two filed on 27 November, 2013 and one filed on 17 December, 2013), he purports to give evidence about matters that occurred after the tribunal hearing. He also attempts to place before the Court material that was not before the tribunal, but which could have been placed before the tribunal. I have paid no regard to the material in the latter category. I am bound to determine this application by reference to the information and evidence that was before the tribunal.
23.As to the applicant’s evidence that falls into the former category, it is relevant to record that the applicant alleges that at the conclusion of the tribunal’s hearing on 7 March, 2013 (conducted by video conference), he was told that there would be a further tribunal hearing on “the 21st of the month”. However, he was never invited to a second hearing. But that, in my view, was of no consequence. As I have already recorded, on 15 March, 2013 a tribunal officer explained to the applicant by telephone that he did not have a further hearing scheduled but was required to submit documents by 21 March, 2013. The applicant took the opportunity to provide further documents to the tribunal by email on 21 March, 2013.
24.I accept the first respondent’s submissions that the tribunal gave careful consideration to the applicant's evidence. I accept that the tribunal made plain its concerns with the financial documents that the applicant had submitted and it provided the applicant with an appropriate opportunity to submit sufficient documentation.
25.On the basis of the material that was before the tribunal, it could come to no other conclusion than that which it did. The applicant’s complaint is with the findings made by the tribunal based upon the material before it. However, those findings were clearly open to it.
His Honour concluded that the applicant had failed to demonstrate that the Tribunal’s decision was affected by jurisdictional error, and dismissed the amended application for review before it.
Proceedings in this Court
On 8 October 2014, the applicant filed an application and accompanying affidavit for an extension of time to appeal the decision of the Federal Circuit Court, as well as a draft notice of appeal from the decision below.
In his affidavit the applicant states as follows:
Application relies on the Jurisdictional error in my hearing from Migration review tribunal. What the migration review tribunal told me was different from what they written on the paper. The fund was correct and true. There is (Was) enough Money in Account.
I send an application on the date (02/10/2014 by fax, but there was a mistake in application, so someone called me from Registry and told me to submit another form.
I live in Melbourne, I tried to submit application in Melbourne registry, but they told me you cannot submit here. I doesn’t know that, I have to submit the federal circuit court appeal in same court. I asked for assistance in Law firms, Legal aid and Melbourne registry none of them give proper information.
In the conclusion Judge says Applicant has failed to demonstrate that the tribunal’s decision was affected by Jurisdictional error.
But at this time I can show there is jurisdictional error in my hearing and bad evaluation process of bank balance.
One of the agent gave me the fraud bank document.
Through improper information.
(Errors in original.)In the applicant’s draft notice of appeal the following appears:
Grounds of appeal
1.There is a jurisdictional error in my hearing (I can get audio proof of my hearing from the migration review tribunal)
2. My old subjects credited to new course
Orders sought
1. The fund was correct and true, still there are details
2. If I have certificate IV in commercial cookery, I don’t want to submit IELTS
3. One of the agency gave me falls Fund document.
Application for extension of time
Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) provides that an appeal from a decision of the Federal Circuit Court must be filed within 21 days of the date on which the judgment was pronounced. On the material before the Court it is clear that the applicant filed his documentation on 8 October 2014, being five days out of time.
Guiding principles of assistance in relation to whether an extension of time in which to file a notice of appeal will be granted are set out in Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 348-349. Relevantly, it is appropriate for the Court to have regard to issues including:
·the length of delay;
·any explanation for the delay;
·any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted; and
·the prospects of success of the appeal if an extension of time were granted.
In this case the period of delay is short. I note that the Minister concedes that the delay was not substantial, that the applicant has given a reasonable explanation for the delay, and that he has not suffered any prejudice as a result of the delay.
However the Minister submits that the proposed appeal has no prospects of success, and for this reason the application for an extension of time should be refused.
Consideration
In my view the draft grounds of appeal raised by the applicant have no merit, because:
·Although the applicant claims that the decision of the Tribunal was infected by jurisdictional error, the applicant provides no grounds for this claim.
·I am unable to identify any jurisdictional error in the decision of the Tribunal.
·The applicant also seeks to raise grounds which challenge the merits of the Tribunal’s decision, which is impermissible: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
·The applicant otherwise demonstrates no appealable error in the decision of the primary Judge.
In the circumstances it is clear that the grounds raised by the applicant in his draft notice of appeal have no prospects of success. It is appropriate to dismiss the application. Mr Richardson for the Minister sought an order that in the event that the Minister was successful costs should be fixed against the applicant in the amount of $6,439. I am prepared to make an order for costs in those terms.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 16 February 2015
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