FEDERAL COURT OF AUSTRALIA Poonia v Minister for Immigration and Border Protection [2016] FCA 1120 Appeal from: Application for extension of time: Poonia v Minister for Immigration & Anor [2016] FCCA 908 File number: NSD 800 of 2016 Judge: NICHOLAS J Date of judgment: 1 September 2016 Legislation: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii) Migration Act 1958 (Cth) ss 65, 359A Migration Regulations 1994 (Cth) Sch 2 Date of hearing: 1 September 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicant: The applicant did not appear Counsel for the First Respondent : Mr BD Kaplan Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent : The second respondent submitted save as to costs ORDERS NSD 800 of 2016 BETWEEN: ABHISHEK POONIA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 1 September 2016 THE COURT ORDERS THAT: 1. The application for an extension of time be dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) NICHOLAS J: 1 This is an application for an extension of time to appeal against a judgment of a Judge of the Federal Circuit Court of Australia (Judge Barnes) given on 29 April 2016. By that judgment, the primary judge dismissed the applicant's application for review of a decision of the Migration Review Tribunal (as it then was) ("the Tribunal") dated 22 January 2014 affirming a decision of a delegate of the first respondent ("the Minister") not to grant the applicant a Student (Temporary) (Class TU) visa ("Student visa") pursuant to s 65 of the Migration Act 1958 (Cth) ("the Act"). The applicant lodged the visa application on 15 March 2013. 2 The applicant is a citizen of India and arrived in Australia on 17 February 2007 on a student visa (573) to cease on 15 March 2010. He was later granted another student visa (572) on 16 February 2012 to cease on 15 March 2013. 3 On 26 June 2013 a delegate of the first respondent refused to grant the visa on the basis that the applicant was not a genuine applicant for entry and stay as a student because he did not satisfy the requirements of cl. 573.225 and 573.223 of Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations"). 4 The applicant applied to the Tribunal for review of the delegate's decision. On 23 October 2013 the Tribunal wrote to the applicant and invited him to attend a Tribunal hearing and to provide specified information in support of his application. The applicant appeared before the Tribunal on 26 November 2013 to give evidence and present arguments. 5 On 22 January 2014, the Tribunal affirmed the decision under review not to grant the applicant a Student visa. The Tribunal was not satisfied the applicant was a credible witness and found that the applicant's evidence and statements about the study he had undertaken in Australia lacked veracity. The Tribunal was not satisfied the applicant intended to genuinely stay in Australia temporarily and found that the applicant did not meet the requirements for grant of a Student visa in cl. 573.223(1)(a) of the Regulations. 6 The applicant sought judicial review of the Tribunal's decision by application filed on 27 February 2014. The applicant relied upon a number of grounds that were summarised by the primary judge as follows: 1. The first ground is that the Tribunal failed to comply with s.359A of the Act. It is asserted that the Tribunal relied on "PRISMS records for the applicant held by the Department of Education, employment and workplace relations in relation to the cancellation of confirmation of enrolments for the applicant" as the reason or part of the reason for finding that the Applicant did not satisfy cl.573.223 and that in the absence of compliance with ss.359AA of the Act, 359A(1)(a) and (b) required the Tribunal to give particulars of this adverse information to the Applicant in writing. It was contended that the Tribunal failed to do so, thereby committing jurisdictional error. 2. The second ground is that the Tribunal's decision was made "in the absence of probative evidence". The particulars to this ground are as follows: (A) The Tribunal found that the Applicant could study when the Applicant did not hold a student visa. (i) In the alternative to particular (ii)(c) at Ground 1 above, there was no evidence that the Applicant could study when he did hold a student visa. 3. At the hearing, the Applicant sought and was granted leave to file a Further Amended Application which included ground 3, which asserted that that the Tribunal did not give proper consideration to information before it in that it did not have proper regard to the Applicant's movement records which were before it. (Errors original) 7 The primary judge was not satisfied that any of the grounds of review relied on by the applicant had been established and dismissed the application. 8 The applicant now seeks an extension of time to appeal from the primary judge's judgment. The proposed grounds in the draft notice of appeal are as follows: 1. The decision of the Federal Circuit Court is affected by error of law. 2. The Federal Circuit Court erred in holding that the Tribunal did not fail to comply with s359A of the Migration Act. 9 The applicant commenced the present proceeding one week outside the time within which he was required to file his appeal. 10 The hearing of the application for an extension of time was fixed for 23 August 2016. The applicant did not appear on that occasion because, according to an email sent to the Court on the day of the hearing, he was suffering from food poisoning. The hearing was adjourned to 1 September 2016 in order to enable the applicant to appear and present arguments in support of his application. 11 There was no appearance by the applicant when the matter was called for hearing on 1 September 2016. On the morning the adjourned hearing was scheduled to commence, the Court received a further email from the applicant requesting that arrangements be made for him to appear by video link in Darwin. I declined, partly because the request was only received by Registry staff late in the afternoon before the re-scheduled hearing, and in circumstances where the applicant had previously declined an invitation to have his application heard in Darwin. His email explaining his inability to attend the hearing on 23 August 2016 said nothing about him wanting to appear by video link. 12 Pursuant to a direction made by Registrar Morgan on 30 May 2016, the applicant was required to file his written submissions by 14 June 2016. That direction was not complied with. 13 Pursuant to an order made by me on 23 August 2016 the applicant was required to file a medical certificate confirming that he was unable to attend the hearing scheduled for 23 August 2016. That direction was not complied with. 14 For reasons which I will now explain, I am satisfied that the applicant's proposed appeal has no prospects of success. 15 The first of the applicant's two proposed grounds of appeal raises a general allegation of error of law on the part of the primary judge that is wholly lacking in specificity. As to the second proposed ground of appeal, it appears to take issue with the primary judge's reasoning in relation to ground 1 of the applicant's application for judicial review. 16 Section 359A(1) of the Act provides that, subject to subsections (2) and (3), the Tribunal is required to provide to the review applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. In order for the Tribunal's disclosure obligation to be enlivened, the information must, in its terms, amount to a rejection, denial or undermining of a review applicant's claims. In the present case, the information is in respect of the applicant's claims to meet the criterion in cl 573.223(1)(a) of Sch 2 of the Regulations. 17 The information in the PRISMS records was held by the primary judge not to come within the scope of s 359A(1). Her Honour found that nothing in the Tribunal's Statement of Decision and Reasons ("Tribunal reasons") suggested that the Tribunal considered the information in the PRISMS records to be the reason, or part of the reason, for affirming the decision under review. Her Honour said at [50] – [56] of her reasons: [50] Rather, the Tribunal made an adverse credibility finding in relation to the Applicant based on the documentary evidence he provided and the fact that he made oral claims about studies he had completed for which there was no documentary evidence and which were internally inconsistent. It did not refer to any aspect of the PRISMS record of enrolments. Rather it had regard to the documents provided by the Applicant, inconsistencies in his evidence and what it considered, based on his evidence and the absence of documentary evidence, to be untruths in his evidence as well as his failure to provide a valid CoE as promised. It went on to find most concerning the Applicant's lack of academic achievement in his time in Australia beyond (on his account) completion of one Certificate III course in nearly 7 years in Australia whilst holding a Student visa for several years. I note that the Tribunal accepted that the Applicant had completed a Certificate III Printing and Graphic Art course as he claimed, although the PRISMS record suggests that the enrolment was cancelled and does not record completion of any Certificate III course (but refers to a Certificate II in Information Technology and a Certificate IV in Accounting – neither of which were relied on by the Applicant or referred to by the Tribunal). [51] It is clear from the Tribunal's reasoning that of particular concern was the fact that the Applicant gave contradictory oral evidence about having completed a Certificate IV course in Financial Services as well as the fact that in the absence of any supporting evidence, his claims to have completed certain courses of study, including a semester in a Bachelor of Interactive Media, lacked veracity. [52] The adverse credibility finding and the evidence from the Applicant as to his own lack of achievement led the Tribunal to find that it did not accept that he had "the application or intention" to study in Australia and to conclude that he was making the application for the purposes of extending his stay in Australia and hence to find that he did not meet cl.573.223(1)(a). [53] The Tribunal's reasoning did not in its terms involve any reference to the PRISMS record. Moreover, and importantly, while the PRISMS record differs in several respects from the Applicant's evidence about his past studies on which the Tribunal relied, what counted against the Applicant was his contradictory evidence and initial untrue claim. The Tribunal's adverse credibility finding arose from its consideration of the Applicant's own evidence – which did not enliven the s.359A obligation. [54] As indicated, the Applicant made written claims about his past study in connection with his protection visa application. He gave the Tribunal a copy of a CoE for a Diploma and Certificate III in Printing and Graphic Arts, an interim academic record for the Certificate III in Printing and Graphic Arts and a CoE for a Certificate IV in Financial Services. He also gave the Tribunal a copy of an offer of placement for a Bachelor of Interactive Media to start in March 2014. It was this evidence and the Applicant's oral evidence to which the Tribunal had regard in considering the Applicant's past studies in Australia as relevant to the criterion in cl.573.223(1). [55] It is the case that, to some extent, the same information was contained in the PRISMS record. However, having regard to the differences in the PRISMS record in this case it can be inferred that the Tribunal had regard to the evidence provided by the Applicant and to internal inconsistencies in his evidence as well as differences between the written and documentary evidence he had provided and the oral claims he made about his studies, but not that it considered or had any opinion about the PRISMS record (see SZLFX at [24]). [56] In these particular circumstances, where the Applicant proffered written and documentary evidence about courses about which he then made conflicting claims, I am satisfied that the Tribunal's adverse findings arose from matters which did not enliven s.359A of the Act and that it can be inferred that the Tribunal did not consider the PRISMS record to be the reason or part of the reason for affirming the decision under review. 18 I respectfully agree with her Honour that the Tribunal's reasons did not make any specific reference to the PRISM records and, although the adverse credibility findings arose from the conflicting evidence provided by the applicant, her Honour was plainly correct in holding the Tribunal did not consider the PRISM records to be the reason in whole or in part for affirming the decision under review. 19 Given the failure of the applicant to appear at the hearing of his application for a second time, I propose to dismiss the application pursuant to section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). The considerations that lead me to take that course, will be apparent from what I have said. In short, I am not satisfied the proposed appeal has any prospect of success. I am also not satisfied that the applicant's failure to attend today has been adequately explained. 20 The application for an extension of time will be dismissed. The applicant must pay the first respondent's costs of the application for an extension of time. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 13 September 2016