Awan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 903
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Awan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 903
File number(s): MLG1772 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 12 October 2023 Catchwords: MIGRATION – application for an extension of time – decision of the Administrative Appeals Tribunal to refuse the applicant a student visa – where Tribunal refused to adjourn hearing and proceeded in applicant’s absence under s 362B of the Migration Act 1958 (Cth)– delay of one day – whether proposed grounds have sufficient merit to justify the granting of an extension of time – application for an extension of time dismissed reflecting lack of merit in substantive application Legislation: Migration Act 1958 (Cth) ss 65, 360, 362B, 379A, 477
Migration Regulations 1994 (Cth) Schedule 2, cl 500.214
Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs; (2020) 278 FCR 475; [2020] FCAFC 127.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1.
Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491; [2000] HCA 67.
SZTES v Minister for Immigration and Border Protection [2015] FCA 719.
Tu-uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28.
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission/s: 2 October 2023 Date of hearing: 2 October 2023 Place: Melbourne The Applicant: In person Solicitor for the Respondents: HWL Ebsworth Table of Corrections 13 October 2023 Paragraph 20 has been removed and the number of paragraphs and certification updated. ORDERS
MLG 1772 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD HAMZA AWAN
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 26 May 2020 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $4189.38
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 26 May 2020, the applicant seeks judicial review of a decision of the second respondent (the Tribunal) made on 20 April 2020. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the applicant a Student (Temporary) (Class TU) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
Before the applicant can prosecute his application for judicial review, he must first satisfy the Court that it would be necessary in the interests of the administration of justice that he be granted an extension of time to do so. This is because his application was filed the day after the time specified in s 477(1) of the Act (being within 35 days of the date of the Tribunal’s decision).
The Minister opposes the application. The Tribunal entered a submitting appearance and has not participated in the proceeding.
BACKGROUND
The applicant is a citizen of Pakistan.
On 29 September 2018, the applicant lodged an application for the visa onshore (CB 1- 34). The applicant was previously the holder of a student visa (subclass 573) that was granted for the purpose of completing a Diploma of Information Technology which he completed on 6 July 2018.
The applicant indicated on the application for the visa that he wished to be granted a further student visa for the purpose of undertaking a Diploma of Automotive Technology (CB 11), for which he attached a current Certificate of Enrolment (CB 22).
On 20 November 2018, the (then) Department of Home Affairs (the Department) wrote to the applicant with a request for more information concerning his application for the visa (CB 39-49). In particular, the Department requested:
(a)A statement setting out the applicant’s ability to satisfy the Genuine Temporary Entrant criterion;
(b)Evidence of financial capacity, course fees and annual income;
(c)Details of Overseas Student Health Cover;
(d)Evidence of Immigration Health Examinations.
Further, to address the issue of “Financial Capacity” in its request, the Department provided the following instructions to the applicant (CB 43):
Provide evidence of funds to support yourself and all family unit members during the first 12 months of your proposed study and stay in Australia, or during your entire proposed study and stay in Australia if less than 12 months.
Course costs $7,500.00
Living Expenses $20,178.82
Child School Costs $0.00
Travel Costs $1,000.00
Total $28,678.82The Department requested a response within 28 days. However, on 17 December 2018, the applicant (through his migration agent) sought an extension of time of “a few more weeks” to provide documents including the financial and income details because his father was unwell (CB 51).
On 19 December 2018, the applicant’s request for an extension of time to provide the information was denied on the basis that the information which was requested was information that should have been submitted with the application at the time of lodgement.
On the same date, a delegate of the Minister refused to grant the applicant the visa (CB 55-61). The delegate was not satisfied that the applicant could meet cl 500.214 in Schedule 2 of the Migration Regulations 1994 (the Regulations) as required for the grant of the visa. This reflected the failure of the applicant to provide evidence that while holding a student visa he would have sufficient funds available to meet the costs and expenses of his intended stay in Australia, despite being requested to do so on 20 November 2018.
On 7 January 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 68-69).
On 3 April 2020, the applicant was invited to attend a telephone hearing before the Tribunal on 20 April 2020 at 9.30 am (VIC time) and was requested to provide (at least 7 days prior to the hearing date) the following (CB 74- 93):
(a)a current Confirmation of Enrolment or other documents that showed the applicant was currently enrolled in a course of study;
(b)documents that showed the applicant’s past studies in Australia, as well as documents evidencing any work related to past or intended studies in Australia;
(c)documents that demonstrated the applicant had genuine access to sufficient funds to meet his costs and expenses during his intended stay in Australia to pay course fees, living costs and travel costs – or evidence of the annual income of a parent/spouse/de facto partner and that he would have genuine access to those funds.
On 6 April 2020, the applicant, who was by this time living in Pakistan, sent the following email (reproduced in full) to the Tribunal (CB 94):
Respected sir/Madam
I am overseas right now. I cannot answer the call 9.30 am Australian time. It’s huge time difference in Pakistan here could be 2 am in morning please so everyone asleep that time. I am also using overseas phon number right now. I don’t have Australian number here please. Very hard to make call here due to time difference please. Kindly extent my hearing date. Whenever they lift up travel restriction I come back then you can call me on this number please #### thanks
On 8 April 2020 the Tribunal informed the applicant by email that his request for a postponement of the hearing had been refused and that the hearing would proceed on 20 April 2020 (CB 96-99). The Tribunal reminded the applicant of the need to produce information of the kind identified in its invitation letter of 3 April 2020 (CB 98).
On 8 April 2020, the applicant sent the following email to the Tribunal (CB 100):
Dear Administrative
Thank you for your email back to me. I am not in Melbourne at the moment otherwise I could answer the call. I’m in overseas now I don’t have Australian number here right now please. If you really want to call so pleas call me on this number ###. My Australian number is off right now. Thanks.
On 17 April 2020, the applicant sent the following further email to the Tribunal (CB 102):
Hi Administrative. I can’t answer the on the phone as i am visiting family here. It’s so hard to make a phone call 9am in the morning Australian time. I could be in the hospital that time my mother is so sick I m doing look after her here please. So please make call another time possible. I don’t wanna get her stressed anymore please. Thanks.
On 17 April 2020, the Tribunal informed the applicant that his second request for a postponement of the hearing had been refused and that the hearing would proceed on 20 April 2020 at 9.30 am (VIC time). The request for information was repeated (CB 105-107).
The applicant did not participate in the hearing as scheduled on 20 April 2020 at 9:30am. The Migration Hearing Record of the Tribunal recorded that four attempts had been made to contact the applicant using both his international and Australian number between 9.20 am and 9.31 am. At 9.30 am the applicant was identified as a “no show” (CB 108-111).
THE DECISION OF THE TRIBUNAL
The Tribunal recorded that when the applicant did not appear before it on 20 April 2020 and in circumstances where the applicant had been properly invited to a hearing in accordance with s 379A(4) of the Act, it had decided, pursuant to s 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it (Reasons, [8]).
The Tribunal identified the issue on review as being whether the applicant could satisfy the requirements of cl 500.214 by the provision of evidence to demonstrate he had genuine access to funds (Reasons, [10]).
The Tribunal gave reasons for its decision to refuse the applicant’s requests for an adjournment of the hearing. At the outset, the Tribunal noted that the discretion to grant an adjournment could not be arbitrarily exercised but instead should be exercised by reference to the facts and circumstances of the individual case, in a manner that was reasonable (referring to MIAC v Li (2013) 249 CLR 332) and consistent with the statutory purpose of the Tribunal to conduct a review which was “fair, just, economical or quick” (Reasons, [12]).
The Tribunal gave the following explanation (Reasons, [13]):
The applicant did not provide any verification concerning the illness of his mother. The Tribunal is not aware of the nature of the illness suffered by the applicant’s mother or its severity. The Tribunal is not aware of how the illness of the applicant’s mother impacts on his ability to receive a phone call relating to his review application. The Tribunal is not satisfied the short term inconvenience of receiving a phone call from Australia late at night or in the early hours of the morning will be any more than a passing inconvenience to any other family members who might hear the ring tone or phone conversation. The Tribunal does not accept short term inconvenience occasioned by a decision of the applicant to leave Australia is sufficient reason to grant an adjournment.
The Tribunal then addressed the issue of whether the applicant had genuine access to funds. It noted that the requirements for evidence of financial capacity for cl 500.214(3) were set out in LIN 19/198 - Financial Capacity Instrument, a copy of which had been provided to the applicant (Reasons, [17],[32]).
The Tribunal noted that the applicant had provided three Certificates of Enrolment (COE’s) to the Department. It observed that a COE provides relevant detail with respect to course costs of an applicant for a student visa and is evidence of course fees which is an element of financial capacity as outlined in cl. 6(2) of LIN 19/198. Regarding the COE’s, the Tribunal found as follows:
a)COE for Certificate III in Light Vehicle Mechanical Technology: tuition fees of $7,500 were outstanding and the COE had expired at the time of decision – the Tribunal gave this COE no weight.
b)COE for Certificate IV in Automotive Mechanical Diagnosis: tuition fees of $3000 were outstanding and the CEO had expired at the time of decision – the Tribunal gave this COE no weight.
c)COE for Diploma of Automotive Technology commencing 2 March 2020 and concluding 1 November 2020: tuition fees of $3,000 were outstanding, further, the applicant provided no evidence of a pre-requisite course that was required for this COE to be valid – the Tribunal gave this COE no weight.
The Tribunal did, however, give weight to a letter of enrolment from Education Access that had been provided by the applicant, to the extent that it recorded that the applicant was enrolled in the Diploma of Automotive Technology commencing on 2 March 2020 and concluding 1 November 2020 with course fees of $3,000 (refer [26](c) above). In doing so, the Tribunal found that the applicant was required to provide genuine access to funds in the amount of $25,040 (calculated as tuition fees of $3,000, cost of living of $21,040 and travel costs of $1,000).
The Tribunal ultimately found that the applicant had been in receipt of numerous requests (both before the delegate and before the Tribunal) to provide information or documents that went to evidence of genuine access to funds. The Tribunal observed that the provision of the appropriate documents prior to the hearing would have enabled the Tribunal to make a favourable decision on the papers, without any need for a hearing (Reasons, [33]).
As the applicant failed to provide current proof of his genuine access to funds there was no evidence before the Tribunal that the applicant satisfied LIN 19/198 and, on that basis, the Tribunal was not satisfied that the applicant met cl 500.214(3) of Schedule 2 to the Regulations and did not meet the criteria for the grant of the visa (Reasons, [38]-[41]).
PROCEEDINGS IN THIS COURT
On 9 September 2020, a Registrar of this Court made procedural orders including that the applicant file and serve at least 28 days before the hearing of his application for an extension of time, any amended application with proper particulars of the grounds of application and written submissions. The applicant did not file any material responsive to this order.
On 18 September 2023, the Minister filed written submissions.
The hearing of the application for an extension of time took place on 2 October 2023, via Microsoft Teams. The hearing was convened using this technology (rather than in person) as the applicant remains offshore. The applicant represented himself and lawyer, Ms Weir, appeared on behalf of the Minister.
EXTENSION OF TIME
Although the applicant is out of time to make his application for judicial review by just one day, the Minister nonetheless objects to the grant to him of an extension of time, primarily on the basis that his underlying substantive application lacks merits.
The factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of the delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);
(b) whether there is any prejudice to the Minister; and
(c)whether the applicant’s proposed grounds seeking judicial review justify the extension of time.
The question of substantive merit was addressed by the High Court in Tu-uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. Although the decision contained two separate judgments, there was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a range of facts and circumstances and that, reflecting the breadth of the discretion, it is within the Federal Court (and this Court’s) jurisdiction to have regard to the merits of a proposed application in such manner as it considers appropriate.
In endorsing this approach, the High Court rejected the view previously expressed by a Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the majority explained, s 477(2) entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application.[1]
[1] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
The majority was also at pains to point out that the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. In this regard, the level of satisfaction for the Court to reach was described as “not low”.[2]
CONSIDERATION
[2] Ibid at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Has the applicant provided an adequate explanation for his delay?
In his originating application, the applicant explains that in circumstances where he was lodging his application offshore, he experienced difficulty having his affidavit witnessed and was unaware that the 35 days to lodge his application commenced from the date of the decision, rather than the date he received the decision notification email, this being 21 April 2020.
The applicant adopted this explanation at the hearing and did not add anything of substance, by way of further or additional explanation.
The Minister submitted that the applicant had not provided any evidence to support his claims for the delay and that as far as he sought to rely upon difficulties with formalising his documents, the affidavit that he filed on 26 May 2020 had in fact been witnessed within the 35-day time period (on 23 May 2020).
The delay in this case is modest. The applicant has provided an explanation that is not challenged as to its veracity. The criticism is that it is not supported by evidence although it is not clear what form this evidence might take.
I am prepared to accept that the applicant had some difficulty in finalising his documents and that this inhibited his ability to make a timely application to the Court. This is not a case where the applicant simply sat on his hands. Indeed, as is noted above, he had in fact arranged for his affidavit to be witnessed prior to the expiry of the statutory timeframe. Other things being equal, this consideration would weigh in favour of the grant of an extension of time.
Will the Minister suffer any prejudice should the applicant be granted an extension of time?
The Minister makes the appropriate concession that there would be no relevant prejudice if the applicant was to be granted an extension of time of one day. However, the Minister identifies the public interest in the finality of judicial decisions (referred to in authorities including Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at 495-496 [15]-[17]) as bearing on this consideration. However, the force of this submission is significantly diminished by the brevity of the delay in this case.
I find there is an absence of prejudice and that this operates modestly in favour of the grant of an extension of time.
Do the applicant’s proposed grounds seeking judicial review justify the extension of time?
The application for judicial review filed on 26 May 2020 contains grounds described as follows (original numbering retained):
4. I applied for the student visa on 29th September 2018 which was refused by the Delegate on the basis of not satisfying the requirements of cl.500.214 of Schedule 2 to the Migration Regulations 1994 (failure to provide evidence of Genuine Access to Funds).
5.I made an application for review to AAT of a decision made by a delegate of the Minister for Home Affairs on 19 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s. 65 of the Migration Act 1958 (the Act).
6.I hereby affirm that I visited Pakistan, my home country on 23rd February 2020 on Bridging visa B to attend the illness of my mother. My initial return ticket was scheduled on 27th march but I tried to reschedule it which was done for 21st March 2020. Unfortunately, the travel ban was imposed on 20th March 2020 and I could not fly back to Australia.
7.Furthermore, it is submitted that the telephone lines and the mobile network in my area was subject to regular maintenance which was not being done due to halt of services aroused as a consequence of COVID 19.
8.The lockdown situation in Pakistan due to COVID 19 deteriorates my capacity to attend the telephonic hearing and providing the requested genuine access to funds due to complete closure of Banks in Pakistan until further notification.
9.Anticipating the matter, I requested the adjournment from AAT on 8 April and 17 April 2020, exercising my right to seek extension on the reasonable grounds which were facing a complete lockdown situation due to COVID 19 in Pakistan and being staying with my ill mother.
10.The High Court of Australia at many instances considered the Tribunal’s statutory purpose to conduct its review in a manner which ‘is fair, just, economical, informal and quick’.
11.The respected tribunal conducted a review in quick, informal, economical way, but I strongly believe that I have not been given the fair opportunity to give evidence and present argument as the circumstances incapacitating me to present the requested evidence (genuine access to funds) and attend to the telephonic hearing were beyond my control due to worldwide unavoidable lockdown situation resulted from the COVID 19 pandemic.
12.In pursuant to the above-mentioned facts and the unavoidable circumstances faced, I strongly believe that I do have a valid reason to appeal at Federal Circuit Court for my student visa refusal as my student visa is not subject to mandatory refusal by failing “to weigh up the applicant’s circumstances as a whole” in terms of Direction 69 of Section 499 of Migration Act 1958.
13.I also believe that Direction 5 is also of strong relevance as all of my circumstances are not weighed up including the strongly relevant matter of my mother’s illness and lockdown in Pakistan during the date of hearing at AAT resulting in my incapability of providing the required documents to AAT in the given time frame.
14.I also strongly believe that Direction 11 “The applicant’s potential circumstances in Australia”, Direction 12 “Value of the course to the applicant’s future” and the Direction 13 “The applicant’s immigration history” of Direction 69 – assessing the genuine temporary entrant criterion for student visa and student guardian visa application (Section 499) are also of relevance to the ground.
When invited to explain and/or expand upon these grounds and to tell the Court what he considered to be legally wrong with the decision of the Tribunal, the applicant referred to the failure of the Tribunal to give him further time to provide documents in support of his visa application, including documents from or obtained with the assistance of, the applicant’s father.
The Minister submitted that the grounds identified by the applicant were not sufficiently meritorious to justify the grant of an extension of time. In doing so, the Minister submitted that the matters identified in the application document disclosed two principal complaints. First, that the applicant was not given a fair opportunity to give evidence and present his arguments due to the circumstances raised in his grounds and second, that the Tribunal had failed to weigh up all of the applicant’s circumstances, including the lockdown in Pakistan and his mother’s illness.
As far as the first matter was concerned, the Minister submitted that the applicant had been given a fair opportunity to give evidence and present arguments in accordance with procedural fairness obligations under the Act. Specifically, the Tribunal had invited the applicant to attend a hearing scheduled on 20 April 2020 at 9.30 am in accordance with s 360 of the Act and had sent the invitation letter to the applicant’s nominated email address provided in his application consistent with s 360A of the Act. The applicant had been given what was described as a “reasonable opportunity” to present evidence of genuine access to funds in order to meet the criteria to be granted a student visa, including in circumstances where the issue of genuine access to funds had been put to the applicant at the time of the delegate’s decision.
As far as the applicant’s requests for an adjournment of the hearing were concerned the Minister made the submission that the applicant had been on notice of the requirement to provide medical evidence in support of his request for an adjournment because of his mother’s illness given that the hearing invitation contained a statement regarding the need for medical evidence where an adjournment on medical grounds was sought. In the absence of this evidence, the Tribunal decision not to grant the adjournment request was reasonable and justified. Furthermore, the decision to refuse the adjournment request was a decision that fell within the range of possible, acceptable outcomes which were defensible in fact and law (referring to Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [105]).
As far as the second matter raised by the applicant in his proposed grounds of review was concerned, the Minister submitted that the Tribunal’s reasons demonstrated that it did consider the matters raised by the applicant (see Reasons at [11]-[13]). The Tribunal also considered other matters relevant to the applicant’s circumstances including the applicant’s COE’s and study history in Australia (Reasons at [20]-[24]) and the applicant’s access to sufficient funds to support himself for the total period of his stay in Australia (Reasons at [25] to [38]).
The Minister submitted that the Tribunal had provided cogent reasons for its conclusions and demonstrated an active engagement with the applicant’s claims and limited evidence.
I am not persuaded that the applicant has identified reasonably arguable grounds of judicial review. First, I consider that the decision of the Tribunal to refuse both adjournment requests made by the applicant was not legally unreasonable.
In this case, the Tribunal exposed its reasoning process in writing. The justification for the refusal of the adjournment reflected the failure of the applicant to produce evidence concerning the fact of his mother’s illness and the impact that illness might have on the capacity of the applicant to participate in a telephone hearing. The Tribunal was also not satisfied that any inconvenience to the applicant created by the time difference between Pakistan and Australia provided a sufficient reason to grant an adjournment.
These reasons operated on the matters identified by the applicant as explaining his need for an adjournment and demonstrated an appreciation of the Tribunal’s statutory obligation under s 360(1) of the Act to schedule a hearing that would afford the applicant for review a real opportunity to present his case. I say this because the Tribunal’s concern was directed at interrogating the applicant’s capacity to participate in a hearing conducted by telephone. The justification given by the Tribunal was that there was no identification of, or evidence as to how, the applicant’s capacity to participate in a hearing would be affected by either his mother’s illness or the time difference between Australia and Pakistan. While reasonable minds might have approached the adjournment request differently, I consider that the reasons supplied by the Tribunal exposed an evident and intelligible justification. I also consider that the refusal decision (as an outcome) was one that fell within a range of possible, acceptable outcomes. This is to recognise that a differently constituted Tribunal, also acting within jurisdiction, might have made a different decision.
Had the applicant’s request for an adjournment been directed at the provision of documents necessary for the grant of the visa then his case might have been more closely analogous to that considered by the High Court in Li or by a Full Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1. However, it was only in the context of his application for judicial review that the applicant identified the need for further time to obtain documents necessary for his visa application. For example, in his affidavit filed on 28 May 2023, the applicant referred to the lockdown situation in Pakistan having affected his capacity to attend the Tribunal hearing and “to provide the requested genuine access to funds due to complete closure of Banks in Pakistan until further notification”.[3] The applicant also referred to an interruption to the regular maintenance of the telephone lines and the mobile network in his area (in Pakistan) during the COVID-19 pandemic as being a further matter that impacted on his ability to participate in a hearing conducted by telephone.
[3] Paragraph [5] of the applicant’s affidavit filed 28 May 2020
However, neither of these matters were mentioned in the applicant’s adjournment requests and so it cannot have been unreasonable for the Tribunal to fail to consider them when it made its decision to refuse to postpone the hearing to an indeterminate date in the future. The Tribunal may well have been circumspect about any such request in circumstances where the applicant had been on notice since at least November 2018 about the need to produce evidence of his genuine access to funds and had not, as at April 2020, made any attempt to provide such information to the Department or to the Tribunal.
I consider against this background that it was also not unreasonable for the Tribunal to proceed under s 362B(1A)(a) to make a decision on the applicant’s review without taking any further action to allow or enable the applicant to appear before it.
As far as the applicant’s proposed grounds of review seek to impugn the Tribunal decision on the basis that it disclosed a failure to weigh up all of the applicant’s circumstances, I consider that this ground is without merit. The inevitable consequence of the applicant’s lack of engagement with the review process, including his failure to produce documents relevant to the genuine access to funds criterion, was that the material before the Tribunal was also of limited compass.
As I have found earlier, the Tribunal considered all matters identified by the applicant in support of his applications for an adjournment of the Tribunal hearing. The Tribunal also identified and made findings concerning the applicant’s COE’s and accurately recorded the history of the opportunities given to the applicant to provide evidence of genuine access to funds for the purpose of cl 500.214. The applicant did not make any submissions to the Tribunal about the impact of the COVID-19 lockdown in Pakistan on his ability to provide the required documents. Instead, on the one occasion in December 2018 that the applicant sought further time to provide documents directed at the genuine access to funds criterion, the explanation cited was that his father was unwell. Again, the Tribunal was not obliged to consider matters that were not raised before it.
DISMISSAL
This is a case where, despite my findings on delay and prejudice, the lack of merit in the proposed grounds of judicial review means that an extension of time would not be necessary in the interests of the administration of justice. I will order accordingly that the application for an extension of time filed on 26 May 2020 be dismissed with costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons . Associate:
Dated: 12 October 2023
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