FEDERAL COURT OF AUSTRALIA Shaikh v Minister for Immigration and Border Protection [2014] FCA 933 Citation: Shaikh v Minister for Immigration and Border Protection [2014] FCA 933 Appeal from: Application for extension of time: Rehana Gulammaiudin Shaikh v Minister for Immigration & Border Protection and Another [2014] FCCA 1011 Parties: REHANA GULAMMAIUDDIN SHAIKH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 343 of 2014 Judge: COLLIER J Date of judgment: 28 August 2014 Catchwords: MIGRATION – application for extension of time to file notice of appeal – no merit in draft grounds of appeal Legislation: Migration Act 1958 (Cth) ss 359A(1), 359A(4)(b) Migration Regulations 1994 (Cth) cll 572.223(2)(a)(i), 572.223(2)(a)(ii) Federal Court Rules 2011 (Cth) r 36.05(1) Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Date of hearing: 26 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms C Symons Solicitor for the Respondents: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 343 of 2014 BETWEEN: REHANA GULAMMAIUDDIN SHAIKH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE OF ORDER: 28 AUGUST 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The application for an extension of time to file a notice of appeal filed 20 June 2014 be dismissed with costs. 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 343 of 2014 BETWEEN: REHANA GULAMMAIUDDIN SHAIKH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: COLLIER J DATE: 28 AUGUST 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application made pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) ("Rules") in which the applicant seeks an extension of time within which to file a notice of appeal from the decision of the Federal Circuit Court in Shaikh v Minister for Immigration [2014] FCCA 1011. In that decision the Federal Circuit Court dismissed with costs an application for judicial review of a decision of the Migration Review Tribunal ("Tribunal"). The Tribunal had, in turn, affirmed a decision of a delegate of the Minister dated 26 July 2011 refusing the applicant a student visa. 2 It is not in dispute that the applicant filed an application for an extension of time on 20 June 2014, which was seven days out of time in terms of the requirements imposed by r 36.03 of the Rules. 3 The Minister opposes the grant of an extension of time because the applicant has not provided an adequate explanation for the delay in seeking to file a notice of appeal, and because in any event the draft notice of appeal of the applicant raises no arguable ground of appeal. Background 4 The background facts are set out in detail in the decision of the Court below. 5 The applicant is an Indian national who arrived in Australia on 6 April 2007 on a student visa which was valid until 15 March 2011. On 11 March 2011 the applicant completed an application for a further student visa, being a student (temporary)(class TU) subclass 572 visa under the Migration Regulations 1994 (Cth) ("Regulations"). 6 The delegate of the Minister refused to grant the applicant a visa on 26 July 2011. 7 The applicant appeared before the Tribunal in two separate hearings, namely on 2 April 2013 and 14 May 2013. 8 Relevantly in its reasons for decision the Tribunal states that at the first hearing: [35] Despite repeated questioning, the Tribunal had difficulty in establishing what studies had been done and on what dates courses had been completed. It appeared she had not been enrolled or studying between July 2009 and July 2010. Ms Shaik agreed she had not studied during this period and said it was because her education provider had failed to give her a release letter and she had personal problems in a relationship when she had a break up with a boyfriend which made it difficult for her to study. 9 The Tribunal then states in relation to the second hearing: [43] The Tribunal told Ms Shaik that concerns remained about an apparent gap in studies and commented that it appeared she had not enrolled between July 2009 and July 2010. Ms Shaik confirmed that she had not been enrolled or studying during this time and when the Tribunal asked her why she had not been studying, she responded that she had broken up with her boyfriend which had caused her stress that prevented her from studying. The Tribunal repeated the circumstances for clarification and asked whether there was anything else that prevented her from studying during this period, she responded there was nothing else it was simply that the stress of the relationship breakdown meant she was unable to study. 10 The basis of the Tribunal's decision was its finding that the applicant did not satisfy clauses 572.223(2)(a)(i) and (ii) of the Regulations, which relevantly set out the requirement that: (i) The applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and (ii) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regards: (A) The stated intention of the applicant to comply with any conditions subject to which the visa is granted; and (B) Any other relevant matter. 11 In relation to the Tribunal's finding in relation to clause 572.223(2)(a)(ii) the Tribunal observed: [55] The Tribunal must also be satisfied that an applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter. [56] The Tribunal considers it relevant that Ms Shaik had an enrolment and study gap of approximately twelve months whilst holding a student visa. It is a requirement that a student visa holder remains enrolled and studying whilst holding a student visa. Consideration may be given where there are exceptional circumstances beyond the visa holders control which led to the study gap. [57] Ms Shaik told the Tribunal that she had not been enrolled for a period of approximately one year whilst holding her student visa due to stress she suffered as a result of a relationship breakup with her boyfriend. [58] The Tribunal does not accept that relationship breakup between students constitutes and [sic] exceptional circumstance and therefore finds Ms Shaik has breached a condition of her previously held visa. [59] On the basis of the above, the Tribunal is not satisfied that Ms Shaik is a genuine applicant for entry and stay as a student within the terms of cl. 572.223 (2)(a)(ii). Decision of the Federal Circuit Court 12 Before the Court below the applicant claimed that she had been denied procedural fairness in that the Tribunal failed to allow her to comment on her financial position. Further, the applicant in Ground Two before the Court below claimed as follows: The Tribunal committed jurisdictional error when it failed to put the Applicant on notice that the issue of 12 months gap in the enrolment (MRT decision, p 11 at [56]) was a determinative issue whilst the delegate's decision had turned solely on the question of the level of funds thereby denying the Applicant procedural fairness and / or breached ss 359A, 359AA and/or 360 of the Act. Particulars The Tribunal whilst referred to the issue of gaps in the enrolment did not put the Applicant on notice that it was a determinative issue stated and in failing to allow the Applicant an opportunity to be heard or comment on the issue exceptional circumstances which were matters not in issue before the delegate. The Applicant was denied opportunity to present arguments on this determinative issue. 13 In relation to this issue the primary judge observed: 33. In the circumstances, I am not persuaded that the applicant was denied procedural fairness, as she was clearly put on notice of this issue at the first hearing, and therefore had from the first hearing to the second hearing to consider it, and was again taxed with the relevant circumstances of the second hearing. There is nothing to indicate that she sought an adjournment of the second hearing to provide further material addressing this issue. It does not appear to me that these matters are matters that fall within the ambit of ss.359A or 360 of the Act. 34. In the circumstances, I am not persuaded that the applicant has established error with respect to the Tribunal's finding that she was not a genuine student. 35. In this case, the finding that the applicant was not a genuine student is an independent basis upon which the visa application was refused, regardless of the findings with respect to financial support. As a result, regardless of the error made by the Tribunal in not complying with the technical scheme established by ss.359A and 359AA, the applicant would have failed in her visa application in any event. 36. I must therefore refuse the current application. Consideration 14 In her application for an extension of time filed 20 June 2014 the applicant states that her grounds for seeking an extension of time are set out in the affidavit accompanying the application. So far as I am able to determine from that affidavit, the applicant claims that she was out of time in respect of filing the notice of appeal because she has been under a great deal of stress because of "family problems and my rrsa problems". 15 In the draft notice of appeal the applicant relies on one ground, namely: The Tribunal committed jurisdictional error when it denied the applicant procedural fairness in failing to allow the applicant opportunity to be heard or comment on the issue post-hearing ramification [sic] about certain funds. (Errors in the original.) 16 At the hearing before me no reason of substance was advanced by the applicant to explain her delay in filing a notice of appeal against the decision below. In any event, and on the material before the Court, this ground of appeal appears to have no merit. In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 the Court explained certain principles relevant to the exercise of the Court's discretion to extend time in which to file a notice of appeal. The merit of the issues raised in the proposed substantive appeal is an important issue for consideration. In this case the following is clear: While s 359A(1) of the Migration Act 1958 (Cth) ("Migration Act") requires the Tribunal to, inter alia, give an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason, for affirming the decision under review, this information does not extend to that the applicant gave for the purpose of the application for review: s 359A(4)(b) Migration Act. The applicant gave the Tribunal information at the first hearing of 2 April 2013 concerning the extended gap in her study. At the first hearing the Tribunal identified that the extended gap in the applicant's studies was a relevant issue for it in respect of the matter before it, and at the second hearing the Tribunal returned to the issue. The reasons for decision indicate that on both occasions the Tribunal asked questions concerning the study gap and the reasons for it. 17 His Honour below was not persuaded that the applicant was denied procedural fairness in respect of this issue. Nor am I. 18 In my view no errors in the decision of the primary judge below have been established. 19 The appropriate order is to dismiss the application for an extension of time to file a notice of appeal with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 28 August 2014