FEDERAL COURT OF AUSTRALIA Gundarania v Minister for Immigration and Border Protection [2018] FCA 136 Appeal from: Application for extension of time and leave to appeal: Gundarania v Minister for Immigration & Anor [2017] FCCA 2121 File number: NSD 1675 of 2017 Judge: BROMBERG J Date of judgment: 14 February 2018 Catchwords: MIGRATION – application for extension of time and leave to appeal – where applicant's proposed grounds of appeal do not meaningfully grapple with the primary judge's reasons – no reasonable prospect of success in the proposed appeal – application dismissed Legislation: Migration Regulations 1994 (Cth), cl 570.227 of Sch 2 Federal Circuit Court Rules 2001 (Cth), r 44.12 Cases cited: Gundarania v Minister for Immigration & Anor [2017] FCCA 2121 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 14 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 1675 of 2017 BETWEEN: VISHAL PREMJIBHAI GUNDARANIA Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMBERG J DATE OF ORDER: 14 FEBRUARY 2018 THE COURT ORDERS THAT: 1. The applicant's application for extension of time and leave to appeal dated 26 September 2017 is 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 BROMBERG J: 1 This is an application made by the applicant for an extension of time and leave to appeal from the orders made by a judge of the Federal Circuit Court of Australia on 4 September 2017 published as Gundarania v Minister for Immigration & Anor [2017] FCCA 2121. The primary judge dismissed an application which sought the judicial review of a decision of the second respondent ("Tribunal") made on 23 March 2017, affirming a decision of the delegate of the first respondent ("Minister") to refuse to grant the applicant a Student (Temporary) (Class TU) (subclass 570) visa. 2 The relevant background facts relating to this matter are set out in the primary judge's reasons at [3]–[5] as follows: [3] Mr Gundarania is a male citizen of India who arrived in Australia on a visitor visa on 11 February 2016. On 13 April 2016, he lodged an application for a student (Temporary) (Class TU) (subclass 570) visa. In support of his application, his representative provided the Minister's Department with a submission about his eligibility for the visa and extensive supporting documentation including: Mr Gundarania's confirmation of enrolment (COE); copies of his passport; education documents; IELTS test scores, confirmation of health cover; supporting statements; and documents for his "sponsor". [4] On 20 April 2016, the Minister's Department wrote to Mr Gundarania requesting further information. Specifically, it informed him that since he was assessed as being a Level 3 applicant, he would not be granted a student visa unless "exceptional reasons" existed for the grant of the visa and requested a statement addressing this requirement. On 9 May 2016, Mr Gundarania's representative sent the Minister's Department further submissions which were similar to the initial submissions made with the visa application, but which also sought to address the "exceptional reasons" requirement. [5] On 17 May 2016, the delegate refused to grant Mr Gundarania a student visa as the delegate was not satisfied that there were "exceptional reasons" for the grant of the visa, as required by clause 570.227 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate also found Mr Gundarania did not meet the criteria for any of the other subclasses of student visas. 3 On 23 March 2017, the Tribunal affirmed the delegate's decision to refuse the applicant's visa application. Primarily, the Tribunal did so on the basis that the applicant had not established that there were "exceptional reasons" for the grant of the visa, as was required by cl 570.227 of Sch 2 of the Migration Regulations 1994 (Cth) ("the Regulations") 4 The proceeding before the primary judge was listed for a show cause hearing which occurred on 4 September 2017. 5 The grounds of judicial review and the reason that each ground was rejected by the primary judge is explained in the reasons of the primary judge at [23]–[28] as follows (citations omitted): Ground 1 [23] In Ground 1 Mr Gundarania complains that the Tribunal "did not review facts of case". The Tribunal plainly considered the entirety of his claims but was not satisfied that they established "exceptional reasons". These were findings of fact open to the Tribunal on the evidence before it. Accordingly, this "ground" goes no further than an impermissible attempt to review the merits of the Tribunal's decision. Ground 2 [24] Ground 2 asserts Mr Gundarania was unfairly discriminated against due to his nationality. He has, however, again failed to provide particulars to make this complaint meaningful. It is not apparent from the Tribunal decision that Mr Gundarania's nationality formed a basis for the Tribunal to affirm the delegate's decision. Insofar as this "ground" is an allegation of bias, Mr Gundarania has made no attempt to substantiate an allegation of actual or apprehended bias, which is a serious allegation that must be firmly and distinctly made and clearly proven. No inference of bias or pre-judgment should be drawn from the mere fact of adverse findings in the Tribunal's reasons. Accordingly, if this is an allegation of bias, it cannot presently succeed. [25] Relevantly, at the time of Mr Gundarania's student visa application clause 570.227 of the Regulations outlined that he was required to establish "exceptional reasons" for the grant of a subclass 570 visa if: (a) the application was made in Australia; and (b) the applicant is subject to the highest assessment level for the relevant course of study; and (c) at the time of application the applicant met the requirements of clause 570.211 (including as the holder of a visitor visa: clause 570.227(c)(i)(NC)); [26] The applicable assessment level for a subclass 570 visa for the applicant was assessment Level 3. Mr Gundarania's assessment level was determined by his Indian nationality. Insofar as he is alleging it was discriminatory for him to have been required to establish exceptional reasons because of his Indian nationality, this ground is without merit and must fail. The Tribunal was simply applying the statutory test for the grant of a subclass 570 visa and was confined in its consideration of his circumstances by the criterion in clause 570.227. [27] I find that Mr Gundarania has failed to demonstrate an arguable case of jurisdictional error. [28] I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed. 6 As the applicant's application was dismissed by the primary judge pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("the Rules") and because r 44.12(2) of those rules specifies that such a dismissal is interlocutory in nature, the applicant requires leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 7 The applicant's application for extension of time and leave to appeal confronts a number of hurdles. The applicant has lodged his application for leave to appeal some eight days late. Whether an extension of time should be granted depends on a number of considerations: (1) The applicant needs to explain why his application is late; (2) I would need to consider whether there is any prejudice to the Minister; (3) The applicant would need to show that he has a reasonable prospect of success in relation to his proposed appeal. 8 The applicant has provided an affidavit. He has also made some submissions today directed to explaining his lateness. The applicant claims that he was ill and that his illness explains his lateness. However, neither the nature of his illness nor why that illness caused him to be late was substantiated. Although I do not find the applicant's explanation persuasive, there is no prejudice to the Minister and the delay involved is short. In those circumstances, the absence of an acceptable explanation may not be determinative. The crucial issue is whether there is a reasonable prospect that the applicant will succeed in relation to his proposed appeal. 9 As the judgment of the Federal Circuit Court was interlocutory rather than final, as I have already said, leave to appeal is also required. In considering whether leave to appeal should be granted, it must be shown that there is sufficient doubt as to the correctness of the judgment of the Federal Circuit Court and that, supposing the decision to be wrong, substantial injustice would be suffered to the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. It is convenient that I consider that together with the question of whether the applicant has a reasonable prospect of success to warrant the grant of an extension of time. 10 Paragraph 17 of the applicant's affidavit contains four proposed grounds of appeal which are also set out in the draft notice of appeal which was also provided to the Court. 11 Proposed ground 1 alleges that the Federal Circuit Court judge made an error of law by applying incorrect principles of law and failed to find that the Tribunal fell into jurisdictional error by not considering relevant materials which sufficiently established and satisfied the exceptional circumstances requirement. Neither that ground nor the submissions made by the applicant have identified the relevant materials the applicant alleges were not considered by the Tribunal. This proposed ground fails to identify any error in the reasons of the primary judge. To the extent that the applicant here seeks to raise the same complaint as agitated in ground 1 of his application before the primary judge, I consider the primary judge was correct to find that the Tribunal had considered the entirety of the applicant's claims but was not satisfied that they established "exceptional reasons". 12 Proposed ground 2 asserts that the primary judge made an error of law by giving consideration to material submitted by the Minister which could not be supported by evidence. Neither that ground nor the submissions made by the applicant identified what material submitted by the Minister the applicant takes issue with. In the absence of any particulars, that ground must also be dismissed. 13 Proposed ground 3 asserts that the primary judge made an error of law by failing to: … give regard to the nature of the material relate to the ground of apprehension of bias and discrimination. (sic) 14 No submission elaborating upon that ground was made by the applicant. The primary judge held that the applicant had made no attempt to substantiate an allegation of actual or apprehended bias. That was because the applicant provided no particulars to explain his contention or evidence to support it. I consider that the primary judge correctly held that no inference of bias or prejudgment by the Tribunal could be drawn from the mere fact that findings adverse to the applicant were made by the tribunal in its reasons. The applicant has failed to identify any error made by the primary judge and this ground must be rejected as well. 15 By proposed ground 4, the applicant contends that the primary judge made an error of law by finding that the Tribunal had "offered procedural fairness". That ground suggests that the applicant had complained to the primary judge that he had been denied procedural fairness by the Tribunal. However, there is nothing in the reasons of the primary judge which suggests that any such contention was made. Nothing said by the applicant in the submissions made by him today sought to elaborate upon this ground. In the circumstances, the ground must also be rejected. 16 The proposed grounds of appeal do not meaningfully grapple with the primary judge's reasons. Neither they, nor the oral submissions made by the applicant identify any error made by the primary judge. The primary judge asked the right question. That is, whether an arguable case of jurisdictional error was established. His Honour dealt with each ground of the applicant's application comprehensively and cogently. The proposed grounds of appeal do not demonstrate that the applicant has a reasonable prospect of success should leave be granted for him to institute his proposed appeal. Additionally, there is no sufficient doubt as to the correctness of the judgment of the primary judge that, supposing the decision to be wrong, substantial injustice would be suffered by the applicant if leave to appeal was refused. 17 For those reasons, this application must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 21 February 2018