Tonmoy v Minister for Home Affairs [2019] FCA 145

Tonmoy v Minister for Home Affairs [2019] FCA 145

The application for extension of time and leave to appeal was dismissed because granting leave would lack utility: the applicant had not identified appealable error in the Federal Circuit Court's refusal to reinstate the proceeding, and the proposed grounds of appeal had no real prospect of success. The s 359A ground was misconceived because the applicant himself told the Tribunal he was not enrolled in a course, and the Tribunal had no power to waive the mandatory enrolment requirement in cl 500.211 on the basis of compelling grounds.

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Migration Application for Extension of Time and Leave to Appeal / Federal Court Application for Extension of Time and Leave to Appeal From a Federal Circuit Court Judgment Refusing Reinstatement of a Dismissed Judicial Review Proceeding
Outcome
The application for leave to appeal was dismissed with costs.
Legal Topics
['student Visa Refusal' 'mandatory Visa Criteria' 'jurisdictional Error' 'extension of Time' 'leave to Appeal' 'failure to Appear' 'migration Act S 359 A']
['migration' 'administrative Law' 'appellate Procedure'] ['student Visa Refusal' 'mandatory Visa Criteria' 'jurisdictional Error' 'extension of Time' 'leave to Appeal' 'failure to Appear' 'migration Act S 359 A']

Case Brief

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Procedural Posture

Migration Application for Extension of Time and Leave to Appeal / Federal Court Application for Extension of Time and Leave to Appeal From a Federal Circuit Court Judgment Refusing Reinstatement of a Dismissed Judicial Review Proceeding

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to seek leave to appeal.' "Whether leave to appeal should be granted from the Federal Circuit Court's refusal to reinstate the proceeding." 'Whether the applicant identified appealable error in the Federal Circuit Court judgment.' 'Whether the proposed grounds of appeal had any real prospect of success.' 'Whether the Tribunal was required under s 359A of the Migration Act 1958 (Cth) to put to the applicant information that he was not enrolled in a course of study.' 'Whether the Tribunal had power to waive the mandatory enrolment requirement in cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) on the basis of compelling grounds.']

Ratio Decidendi

The application for extension of time and leave to appeal was dismissed because granting leave would lack utility: the applicant had not identified appealable error in the Federal Circuit Court's refusal to reinstate the proceeding, and the proposed grounds of appeal had no real prospect of success. The s 359A ground was misconceived because the applicant himself told the Tribunal he was not enrolled in a course, and the Tribunal had no power to waive the mandatory enrolment requirement in cl 500.211 on the basis of compelling grounds.

Court Disposition

The application for leave to appeal was dismissed with costs.

Orders

  • ['The application for leave to appeal filed on 28 September 2018 be dismissed.' "The applicant pay the first respondent's costs."]