Soliman v Minister for Immigration and Border Protection
[2018] FCA 1246
•17 August 2018
FEDERAL COURT OF AUSTRALIA
Soliman v Minister for Immigration and Border Protection [2018] FCA 1246
Appeal from: Application for extension of time: Soliman v Minister for Immigration [2018] FCCA 242 File number: NSD 196 of 2018 Judge: PERRAM J Date of judgment: 17 August 2018 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – whether grant of leave to appeal warranted Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Date of hearing: 17 August 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Mr A Keevers of Sparke Helmore ORDERS
NSD 196 of 2018 BETWEEN: AHMAD RABIE AHMED SOLIMAN
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
17 AUGUST 2018
THE COURT ORDERS THAT:
1.The application 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
PERRAM J
This is an application to extend time to bring an application for leave to appeal from orders made by the Federal Circuit Court on 2 February 2018. The primary judge dismissed the Applicant’s judicial review proceeding on a summary basis pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘FCC Rules’). By r 44.12(2) such a dismissal is interlocutory in nature. By s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal may not be bought from, relevantly, an interlocutory judgment of the Federal Circuit Court without an anterior grant of leave to appeal.
By r 35.13 of the Federal Court Rules 2011 (Cth) (‘FCA Rules’) such an application must be brought within 14 days of the interlocutory order. In this case, that 14 days expired at the end of Friday, 16 February 2018. On Monday, 19 February 2018 at 3.35pm the Applicant filed an application to extend the time to bring an application for leave to appeal pursuant to r 35.14 of the FCA Rules. The Applicant, therefore, missed the deadline by less than one business day. In that situation I will proceed on the basis that if his case is one where leave to appeal ought to be granted then time should be extended also.
The Applicant’s judicial review proceeding in the Federal Circuit Court concerned his unsuccessful attempt to have the First Respondent issue him with a student visa. One of the requirements for the issue of a student visa is that at the time the decision is made on the application the applicant should be enrolled in, or have a current offer of enrolment for, a principal course of study of the type specified in the Migration Regulations 1994 (Cth). The final decision on the Applicant’s visa application was given by the Administrative Appeals Tribunal. The Applicant gave evidence to the Tribunal that he was not enrolled in such a course although he wished to be. In light of that evidence he was not eligible for a student visa and the Tribunal was bound to refuse the application on the evidence before it which the Tribunal did.
On judicial review in the Federal Circuit Court the primary judge reached the conclusion (at [14]) that the Tribunal had reached the only decision open to it. The primary judge concluded that the Applicant had no arguable case on the judicial review application and summarily dismissed the matter under the show cause procedure in r 44.12(1)(a) of the FCC Rules.
The proposed appeal to this Court now raises two grounds. These are, first, the grounds that he had relied upon in the Federal Circuit Court and, secondly, his belief his case has merit and should have been remitted to the Tribunal rather than dismissed.
On its face, the second ground does not raise a viable argument and I would not grant leave to appeal in respect of it.
As to the first argument, the originating application for judicial review in the Federal Circuit Court raised two grounds. One was that he was only told the outcome of the Tribunal hearing orally and had not received the Tribunal’s written reasons. The Tribunal subsequently produced those reasons so this point goes nowhere. The second was that the Court should accept the application. Plainly, this does not raise an issue warranting a grant of leave either.
At the hearing before the primary judge, the Applicant did not claim any errors in the Tribunal’s decision but rather only submitted that he was still seeking the student visa. The primary judge correctly held that in the absence of any jurisdictional error the application had to be dismissed.
At the hearing of this application, the Applicant sought to adjourn the hearing of the proceeding in order to give him an opportunity to obtain legal representation. I refused that application for two reasons. First, the application for the extension of time had been filed in February of this year and there was no explanation before me of why an attempt to get legal representation had been left so late in the piece. Secondly, the material in the papers showed that the Applicant’s own evidence to the Tribunal was that he was not enrolled in a specified principal course of study. As I have said, the inevitable consequence of that was that the Tribunal was bound to dismiss his application for the visa. I can conceive of no basis upon which the visa could have been granted or by which any error can be demonstrated in the decision of the Court below. It follows that any grant of an adjournment to permit the obtaining of legal representation would be for a purpose which is evidently futile.
In the above circumstances, I would not be disposed to grant leave to appeal even if the time to do so were to be enlarged. Accordingly, I do not propose to extend the time for the bringing of the leave application either.
The application is dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 17 August 2018
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