FEDERAL COURT OF AUSTRALIA Saharan v Minister for Immigration and Border Protection [2016] FCA 1431 Appeal from: Amit Saharan v Minister for Immigration & Anor [2016] FCCA 2231 File number: VID 992 of 2016 Judge: LOGAN J Date of judgment: 22 November 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – student visa – Migration Regulations 1994 (Cth) sch 2, cl 572.223 – application for an extension of time within which to appeal from Federal Circuit Court of Australia – whether proposed grounds of appeal enjoy reasonable prospect of success – whether Tribunal properly put information to applicant for comment – Tribunal satisfied that applicant is not a genuine temporary entrant – Tribunal properly discharged its obligation in putting information to applicant for comment – proposed grounds of appeal go to factual merits of decision below – no reasonable prospect of success – extension refused Legislation: Migration Act 1958 (Cth) Federal Court Rules 2011 (Cth) r 36.03 Migration Regulations 1994 (Cth) sch 2, cl 572.223 Date of hearing: 22 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr C Tran Solicitor for the Respondents: Australian Government Solicitor ORDERS VID 992 of 2016 BETWEEN: AMIT SAHARAN Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 22 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application for an extension of time is dismissed. 2. The applicant is to pay the first respondent's costs of and incidental to the application for an extension of time, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 Mr Amit Saharan (Mr Saharan) is a citizen of the Republic of India. He came to Australia on a student visa in August 2009. 2 After his arrival, Mr Saharan undertook a number of certificate and diploma level courses. This particular case is concerned with a further application which he made for a further student visa. In particular, it is concerned with an application which he made for that class of visa under the Migration Act 1958 (Cth) known as a Student (Temporary) (Class TU) (Subclass 572) Visa. He applied for that visa on 24 December 2014. On 10 February 2015, a delegate of the Minister for Immigration & Border Protection (Minister), the first respondent to the present application, refused to grant that visa application. 3 Mr Saharan then sought the review on the merits of the Minister's delegate's decision by a Tribunal. The review application came to be heard by the Administrative Appeals Tribunal (Tribunal). On 7 July 2015, for reasons given that day, the Tribunal decided to affirm the decision of the Minister's delegate. 4 Next, Mr Saharan applied to the Federal Circuit Court of Australia (Federal Circuit Court) for the judicial review of the Tribunal's decision. On 25 July 2016, for reasons given orally that day, the Federal Circuit Court dismissed with costs that judicial review application. 5 By virtue of r 36.03(a), of the Federal Court Rules 2011 (Cth), the time within which a notice of appeal had to be filed so as to institute an appeal as of right was within 21 days after the date on which the judgment from which an appeal was sought was pronounced. Mr Saharan did not file a notice of appeal within that time. On 19 August 2016, he filed an application for an extension of time within which to appeal together with an affidavit in support of that application. 6 It is Mr Saharan's extension of time application which falls for determination today. 7 While the Minister was content to treat argument on the extension application as if it were argument on the appeal, Mr Saharan, for reasons which I quite understand, wished to have the benefit of obtaining legal advice and perhaps also representation on an appeal in the event that an extension were granted. So all that I am determining today is whether to grant an extension of time. If an extension of time were granted the appeal itself would be heard at a later date. Of course, if the case is not one for the granting of an extension there will be no subsequent appeal hearing. 8 There are always two considerations which are relevant in relation to whether to grant an extension of time within which to appeal. One is whether or not there is a reasonable explanation for the delay in the filing of the notice of appeal. Related to that is whether there would be any prejudice to a respondent if the extension were granted. The other consideration is whether, having regard to the proposed grounds of appeal, at least one of those grounds would enjoy reasonable prospects of success. 9 Those two considerations interplay in the sense that, even if an explanation did not appear to be terribly compelling in relation to delay, if there were no particular prejudice and at least one ground enjoyed a reasonable prospect of success, an extension of time might nonetheless be granted in the interests of justice. Much depends on the circumstances of a particular case in relation to the length of delay, the reasons for it and the existence or otherwise of prejudice to a respondent and how compelling a proposed ground of appeal truly is. 10 In this particular case, as is evident from Mr Saharan's affidavit, he operated on the basis that he had 28 days within which to appeal and, further, that time did not run until the reasons for judgment in written form were received. Each of these is a misconception but by no means a misconception confined just to Mr Saharan or even just to those who represent themselves. My experience is that some lawyers also operate under each of these misconceptions. 11 As to the length of time within which a notice of appeal must be filed, the misconception has its origins in different times being fixed for appeals in respect of judgments of other courts. As to reasons for judgment and orders, the misconception lies in not understanding that what is occurring just now, in other words, delivery of a judgment orally, does constitute the delivery of reasons. As a matter of practice, in this Court and some other courts, reasons for judgment delivered orally are revised from transcript but such a revision may occur for reasons of grammar or style, not so as to alter the substance of reasons earlier delivered orally. 12 Further, the origin of misconception in relation to the time of effect of orders may well lie from earlier practices where orders had to be entered in the registry before taking effect for the purposes of appeal periods. In relation to the Federal Circuit Court, the order took effect on the day of its pronouncement orally. 13 These misconceptions, having been stated, it is nonetheless the case that the delay here is very short, only some four days. Given that, and the absence of any asserted prejudice on the part of the Minister, whether or not to grant an extension of time turns very much on whether at least one of the proposed grounds of appeal would enjoy a reasonable prospect of success. 14 The proposed grounds of appeal are found in two places, para 6 of Mr Saharan's affidavit in support of his application and also in his draft notice of appeal. I was reminded about the latter helpfully by Mr Tran, who appeared for the Minister. 15 Proposed ground 3 in the draft notice of appeal states in another way, but to no different effect, what is found in para 6 of Mr Saharan's affidavit. I shall return to that particular proposed ground shortly. The draft notice of appeal also includes, materially, grounds 4 and 5. 16 Ground 5 alleges error on the part of the primary judge in dismissing the review application without considering its merits. Viewed as an assertion that the legal merits of the judicial review application were not considered by the primary judge that ground has no prospects of success. It is clear on the face of the reasons for judgment of the Federal Circuit Court that the primary Judge engaged very closely indeed with the merits in law of the judicial review application. Quite properly, for it was not his Honour's role, the primary judge did not engage with the factual merits of Mr Saharan's visa application. 17 Proposed appeal ground 4 alleges an error of construction in relation to cl 572.223 in Sch 2 to the Migration Regulations 1994 (Cth). In that clause is to be found what might be summarised as the "satisfaction that an applicant is a genuine applicant for entry and stay as a student" criterion. The way in which proposed appeal ground 4 is particularised does nothing more than allege error on the part of the delegate in finding that Mr Saharan was not a genuine temporary entrant. To put the ground in that way is not to allege a particularised error of construction. Further, the focus of the ground is on the Minister's delegate, not as it should be on the Tribunal. Putting that to one side, what remains is nothing more than an invitation for this Court, in the exercise of appellate jurisdiction, to embark upon a consideration of the factual merits of whether Mr Saharan is a genuine temporary entrant. That is something the Federal Circuit Court could not do and it is most emphatically something which this Court, on an appeal from the Federal Circuit Court, cannot do. Proposed appeal ground 4 also enjoys no prospect of success. 18 I return then to proposed appeal ground 3 and, related to that, the ground as similarly described in para 6 of Mr Saharan's affidavit. These respectively provide: Draft Notice of Appeal: 3. That the learned Judge erred in not considering that the delegate considered information from PRISM which was not put to the applicant. Particulars (a) In the decision record the delegate referred to PRISMS and made a finding that the applicant's enrolment for Certificate IV in Engineering was cancelled on 3 February 2015. (b) The above information was not put to the applicant for his comments (c) The above information was considered by the delegate when refusing the applicant's application for a visa (d) The delegate refuse the visa in the first instance on 25 Sept 2013 on the grounds the applicant did not satisfy English language requirement Mr Saharan's Affidavit: 6. That the learned Judge erred in not considering that the delegate considered information from PRISM which was not put to me. In the decision record the delegate referred to PRISMS and made a finding that my enrolment for Certificate IV in Engineering was cancelled on 3 February 2015. However the said critical information was not put to me for my comments and was considered by the delegate although in hindsight the decision says the information was not considered. 19 Either as expressed in para 3 of the draft notice of appeal or in para 6 of the affidavit, the vice apparent is a focus on the delegate's decision rather than that of the Tribunal. The Tribunal's function was to consider the review application freshly, sitting in place of the Minister's delegate and exercising for that purpose all of the powers and discretions of the Minister's delegate. The decision made by the Tribunal, even though in form it affirmed the decision of the Minister's delegate, overtook the Minister's delegate's decision. By that I mean the Tribunal's decision replaced the decision of the Minister's delegate. 20 For these reasons, in terms of focus, this remaining appeal ground is misdirected but it became apparent in the course of Mr Saharan's submissions that his grievance with the Minister's delegate's decision was also a grievance which he had with the Tribunal's decision. So much had been apprehended about Mr Saharan's grievance by the Minister's counsel, whose submissions, both in writing and orally, were directed accordingly. I propose to treat this remaining ground as if the reference to the Minister's delegate were a reference to the Tribunal. In turn, as I understand Mr Saharan's grievance, it is that the Federal Circuit Court made an error of law in not understanding that the Tribunal had made its decision on the basis of a misunderstanding about the number of courses for which he had enrolled. 21 At least for the purposes of an extension of time application, I am prepared to accept that, if the Tribunal had made an error of fact about the number of courses, this was such a critical fact that the resultant decision of the Tribunal could be said not to be one which was reasonable or that the Tribunal had not truly undertaken its role of reviewing the decision of the Minister's delegate on the merits. There are cases where a misconception as to a critical fact, which has become part of the reasoning process of an administrative tribunal, have been regarded as a jurisdictional error. So I make that assumption in favour of Mr Saharan for the purposes of the extension of time application. 22 Part of this remaining ground is also an alleged failure on the part of the Tribunal to put the information about the enrolment record, which is called PRISMS, to Mr Saharan. Once again, for the purposes of the extension application I assume in favour of Mr Saharan that a failure to put that information could arguably amount to a deniable of procedural fairness. I assume that this, too, could amount to a jurisdictional error. 23 As to the procedural fairness issue, the Tribunal's reasons do indicate that the Tribunal went through with Mr Saharan at the hearing the PRISMS record. Further, having regard to the Tribunal's reasons as a whole, particularly para 16, which I shall set out shortly, it looks as if the Tribunal discharged its obligations in relation to putting the PRISMS enrolment record to Mr Saharan for comment in relation to any potentially adverse issues arising from that record. At para 16, the Tribunal stated: The Tribunal has considered the applicant's student history. He has certainly enrolled in a number of courses during his residence in Australia, and has not completed most of them. The Tribunal accepts that the PRISMS record as presented does not truly represent his enrolments, but does note that the applicant has enrolled in and studies a number of similar courses over his extended period in Australia. In particular, the applicant has studied a number of business related courses, including frontline management, business and management courses. The applicant now seeks to enrol in a marketing course, providing an extra year of studies. The applicant's explanation of this extra degree is limited and contradictory, firstly explaining that it was for his own business opportunities, with his father and mother, and then to make him more employable on return to India. This vagueness on the part of the applicant is of extreme concern to the Tribunal, the applicant is embarking on a course with little explanation as to how it would asset him in the future in relation employment or business development opportunities. The Tribunal considers the explanation that it would assist him in his work and is his dream to be trite and simplistic, and not an explanation as to why he would embark on such a course for such a long period of time. The Tribunal does not accept that an Advanced Diploma of Marketing would assist the applicant to develop the mother's diary business, comprising of a dozen or so cows and buffalo, a very small business and not requiring such a qualification; nor assist in developing any business in steel fabrication with his father, given that such a business has not yet been established and the applicant has a series of like qualifications that he could rely upon to assist in establishing a business of this nature. The Tribunal does not accept that the applicant requires a year's further studying in this area to assist in the establishment of this business, but that he is stating this for the purpose of gaining the visa. The Tribunal further does not consider that this further qualification will alter the applicant's employment opportunities other than with his family. The Tribunal considers that the applicant's enrolment in this course is being sought to extend his time in Australia, using the student visa program for residency rights and not for the purpose of studying or future employment opportunity. The Tribunal places significant weight on this issue. 24 I can well see, having regard to the reasons of the Minister's delegate, why Mr Saharan might feel aggrieved about whether that official had correctly understood the PRISMS record and, more particularly, the number of courses for which he had enrolled since his arrival in Australia. I can also see how a view that a person had merely enrolled in course after course without completing them could intrude on a reasoning process about whether a person was a genuine temporary entrant or whether they were just enrolling in courses to stay in Australia. But the Federal Circuit Court's focus had to be, and was, on the Tribunal's decision and reasons, not those of the delegate. 25 It is not at all apparent to me from para 16 of the Tribunal's reasons that the Tribunal was operating under any misapprehension at all about the number of courses for which Mr Saharan had enrolled after his arrival. The Federal Circuit Court reached a like conclusion. Having regard to para 16, it looks to me as if the Tribunal was under no misunderstanding as to the number of courses for which Mr Saharan had enrolled. 26 The Tribunal's focus was on the number of courses completed, the proposed course and the uses to which that proposed course was proposed to be put. These uses were described by Mr Saharan, and accepted by the Tribunal, to be his mother's dairy business and a proposed steel fabrication business to be commenced by his father. The Tribunal was influenced by the size of the mother's dairy business and the apparent lack of relationship between a business with a very small number of cows and the nature of the advanced marketing course proposed. 27 In the final result, my view is that the Tribunal did nothing more or less than make an evaluation reasonably open to it about whether Mr Saharan was a genuine temporary entrant. As it happens, that view coincides with that of the primary judge. It was not the role of that judge, and the reasons for judgment make it clear this was well understood, to critique the factual merits. This remaining appeal ground, in my view, really invites nothing more than this. 28 There are what are said to be other proposed grounds of appeal both in Mr Saharan's affidavit and in the draft notice but these are nothing more than statements of hope as to an appeal being granted rather than statements as to error on the part of the Federal Circuit Court. It is not necessary to consider them. 29 For these reasons, the application for an extension of time is dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 30 November 2016