CHERUKURE v Minister for Immigration
[2018] FCCA 1886
•20 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHERUKURE v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1886 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Student (Temporary) (Class TU) vocational education and training sector (subclass 572) visa – privative clause – application dismissed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | JAGADISH CHERUKURE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 199 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 13 February 2018 |
| Date of last submission: | 13 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Mr L Brown |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 4 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 199 of 2016
| JAGADISH CHERUKURE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the tribunal”) on 12 January 2016 under the Migration Act 1958 (“the Act”). In that decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on 7 May 2015 refusing to grant the applicant a Student (Temporary) (Class TU) visa (“the visa”).
Contemporaneously to filing his application in this matter, the applicant filed an affidavit sworn by him on 4 February 2016.
On 22 June 2016, Registrar Buljan made procedural orders in this matter including a direction that the applicant was to file and serve, among other things, any amended application with proper particulars of the grounds of the application and written submissions on or before 27 July 2016. The applicant did not file any such amended application and written submissions.
Background
The background to this matter is not controversial.
The applicant is an Indian citizen. On 12 March 2015, he applied for the visa.[1] The application listed the following Certificate of Enrolment codes: 705D6714; 705D8633; and 705D9675 but did not attach any certificates of enrolment.[2]
[1] Court book at page 9 to 12.
[2] Court book at page 2.
The following day, on 13 March 2015, a delegate of the Minister requested the applicant provide further information including proof of his financial capacity.[3] In the initial request for further information, the Department of Immigration and Border Protection (“the Department”) indicated that, the applicant was required to respond within 28 days of the date of receipt of the correspondence and further stated:
If you do not reply within the timeframe specified above your application may be decided without the Department taking any action to obtain the requested information. If you are unable to provide this information within this time you should contact us using the contact details provided below.[4]
[3] Court book at page 13 to 24.
[4] Court book at page 13.
On 9 April 2015, the applicant requested an extension of the time for submitting the requested documents. Relevantly in that email the applicant stated:
Because of the public holidays and end of financial year in India. I cannot get the documents from the bank regarding my education loan from India.[5]
[5] Court book at page 25 to 27.
The applicant received a response from the Department on
13 April 2015 indicating that his request had been received but declined. The email response from the Department relevantly stated:You have been provided a reasonable time-frame to submit information to support your student visa application. In the absence of any supporting documentation or compelling reasons, your request for an extension of time to submit the requested information has been declined.
Please note that any information submitted prior to the decision shall be taken into consideration.[6]
[6] Court book at page 25.
On 7 May 2015, some three weeks later, a delegate of the Minister (“the delegate”) refused to grant the visa. The applicant had not provided the delegate with any further information requested in support of his application.[7]
[7] Court book at page 29 to 38.
The applicant then applied to the tribunal for a review of the delegate’s decision on 25 May 2015.[8]
[8] Court book at page 45 to 55.
The tribunal invited the applicant to attend a hearing before it on 12 January 2016 by letter dated 18 December 2015. In the invitation to attend the hearing, the applicant was also requested to provide information and documents including; a copy of his current certificate of enrolment and documents that demonstrate that he has sufficient funds or access to funds to pay course fees living costs school costs (where relevant) and travel costs over the relevant period. The request for the information contained in the invitation to hearing specified that the information and any other evidence be provided to the tribunal at least 7 days before the hearing date.[9]
[9] Court book at page 75 to 78.
The applicant did not provide any of the requested material either within the timeframe specified or at all. The applicant did however, complete and return the response to hearing invitation form indicating that he would be attending the hearing scheduled for 12 January 2016.[10]
[10] Court book at page 87 to 89.
The applicant attended the hearing on 12 January 2016, which according to the migration hearing record commenced at 3:52pm and concluded at 4:27pm.[11]
[11] Court book at page 92 to 95.
On 12 January 2016, the tribunal affirmed the delegate’s decision not to grant the visa and the applicant was advised of this decision in correspondence dated 13 January 2016.[12]
[12] Court book at page 96 to 107.
Tribunal’s Reasons
In its reasons the tribunal:
a)noted that the applicant had not provided a certificate of enrolment; stated that he had had a certificate of enrolment in March 2015 but that he had not been studying during 2015;
b)informed the applicant that any certificate of enrolment had to be current and not expired or cancelled and that the tribunal was not satisfied that any certificate of enrolment from early 2015 would still be valid given that he had not been attending classes on his own evidence; [13]
[13] See paragraph [10] of the tribunal’s decision record at page 100 to 101 of the court book.
c)noted that is the mandatory criterion for all subclasses of Class TU visa (except for Subclass 580) that the applicant provide to the Minister, and now to the tribunal, a certificate of enrolment which relates to undertaking a course of study unless there has been a failure of electronic transmission which has prevented the education provider from sending the certificate of enrolment or in circumstances where the applicant has applied for a visa offshore, which did not apply in this instance;
d)concluded that, there was no evidence of any failure of electronic transmission and consequently the applicant was required to provide a current certificate of enrolment in order to meet clause 572.222 and its equivalent, for each alternative subclass of visa ;
e)concluded that, as the applicant had not provided the certificate of enrolment, the applicant did not meet the requirements of clause 572.222 or any of its equivalents.[14]
f)noted that, the applicant had not provided any evidence as to his financial capacity, notwithstanding the specific request to this information contained in the invitation to hearing sent to the applicant;[15]
g)at the hearing, the applicant sought additional time to gather the financial information;[16]
h)noted that, prior to the delegate’s decision and notwithstanding having been provided with more than 28 days to provide evidence in relation to his financial capacity, the applicant requested further time to obtain that information back in April 2015.
i)noted that, the delegate refused that request and at the time of the delegate’s decision on 7 May 2015, the applicant had still not provided any evidence of his financial capacity;[17]
j)further noted that, on his own evidence, in the period since the delegate’s decision, the applicant had not obtained the evidence in relation to financial capacity and that he had not been studying during that period even though his bridging visa did not prevent him from doing so;[18]
k)as stated, notwithstanding being given further written notice of the requirement to provide evidence as to his financial capacity in December 2015, the applicant had still not obtained any such evidence by the date of the hearing on 12 January 2016;[19]and
l)having regard to the fact that the applicant was clearly on notice as early as April 2015 of the type of information that he would need to provide to support his application for a student visa and his continued failure, without reasonable excuse to provide that information, the tribunal declined the request for further time to enable the applicant to provide evidence to support his application. In doing so, the tribunal did give consideration to the claim by the applicant that he had suffered depression in 2015 and that this prevented him from arranging his finances. It also considered the claim that he made that, the bank in India refused to issue a loan until it saw evidence that he had a visa.[20]
[14] See paragraph [11] to [13] of the tribunal’s decision record at page 101 of the court book.
[15] See paragraph [19] of the tribunal’s decision record at page 101 of the court book and paragraph [22] at page 102.
[16] See paragraph [23] of the tribunal’s decision record at page 102 of the court book.
[17] See paragraph [20] of the tribunal’ decision record at page 101 of the court book.
[18] See paragraph [21] of the tribunal’s decision record at page 102 of the court book.
[19] See paragraph [21] of the tribunal’s decision record at page 102 of the court book.
[20] See paragraphs [24] to [30] of the tribunal’s decision record at page 102 of the court book.
The tribunal then concluded that as the applicant had not provided evidence in accordance with the applicable Schedule 5A requirements, he did not satisfy clause 572.223(a) it concluded that there was no evidence that the applicant was eligible to be granted a student visa of any other subclass and consequently the decision under review must be affirmed.[21]
[21] See paragraphs [31] of the tribunal’s decision record at page 102 of the court book; and paragraph [33] at page 103.
Grounds of Review
The applicant’s application in this matter set out the following:
1.I have made a review of a decision made by a delegate of the Minister for Immigration on 7 May 2015 to refuse to grant my Student visa under s.65 of the Migration Act 1958.
2.I have lodged my visa onshore on 12 March 2015. At the time of lodgement, I have provided might all documents with application.
3.My visa was refused because of Case officer did not provide evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant, as required by clause 572.223(2)(a) of Schedule 2 to the Regulations – in particular, evidence as to financial capacity.
4.Anyhow application for Review has been made Migration Review Tribunal, Melbourne Registry. Tribunal hearing was held on Tribunal on 12 January 2016.
5.I have finished my education and waiting to apply for 485 subclass and then Tribunal has organised hearing to see me and my documents. But I have not been studying during 2015. I have clearly informed that I have had enough education.
6.Again Tribunal has assessed all Student visa regulations including Financial Capacity of Student visa.
7.IF student has a facility to apply for 485 Visa subclass which was advertised by the Government from Australian high Commission web site, how come Tribunal will expect a student studying till Tribunal hearing even Student finishes his education in Australia and got eligibility to Apply for 485 Visa subclass.
8.Member has not answered my questions when I have tried to raise these issues according to their reg member has followed and assess the application again according 572 visa criterion freshly and affirm the decision not to grant the visa.
9.I am really wondering about the situation why tribunal is doesn’t give my weight and did not even mention in the decision about my intention.
10.Tribunal (differently constituted) affirmed the decision not to grant the visa applicant a Student visa. That is the reason I am seeking review of this decision in Federal circuit court.
11.I have thought my discussion will be considered at least by member, did not expect my visa remitted to immigration.
12.That is the reason I went for the review at Administrative Appeal Tribunal, but the tribunal comes up with decision in Five minutes without hearing my conversation.
13.Member should have considered my concerns and why I am coming to raise my submission to Tribunal.
14.As such, the Tribunal is not satisfied that at the time of decision I am not eligible for 572 student visa, as a student I have lodged on my own review at Melbourne registry, at least some extension of time to provide or else some guidelines for submission before hearing.
15.Tribunal decision is not justified properly that is the reason I am bring the matter to Federal circuit court under judicial Review.
16.I do have exceptional circumstances where I am on the way to find nice lawyer to fight my case in the Court.
17.My question how come Tribunal has discretion on other applicant’s exceptional circumstances and why not considering my circumstances?
18.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances and give me decision legitimately that I could finish my studies in Australia (stet).[22]
[22] See applicant’s application filed 4 February 2016.
The applicant also filed an affidavit in these proceedings sworn on
4 February 2016 in which he essentially sets out the information upon which he seeks to rely. In summary, in that affidavit he states that he:
a)is seeking judicial review under section 476 of the Act;
b)has exceptional circumstances;
c)queries why the tribunal has discretion on other visas in exceptional circumstances but not in relation to the visa for which he has applied;
d)had no intention of being uncooperative with the Department;
e)has been in Australia studying since 2009 and that the rejection of his student visa is unfair; and
f)is seeking a review by this court on the basis that, his situation constitutes exceptional circumstances and to allow him to continue to finish his studies in Australia.[23]
[23] See applicant’s affidavit filed 4 February 2016.
At the hearing of this matter, the applicant appeared on his own behalf. When asked what he wished to say in support of his application, the applicant referred once again to the fact that he had asked for additional time to provide his material in support of his application and that this was unreasonably refused.
Section 31 of the Act provides that the Regulations may prescribe certain classes of visas and the criteria for those visas. Pursuant to
regulation 2.03 of the Regulations, the subclasses of student visas were prescribed in clause 1222(4) of schedule 1 of the Regulations with relevant criteria. That included for example:
a)pursuant to clause 572.231 that the applicant is enrolled in or is the subject of a current offer of enrolment in a relevant course; and
b)pursuant to clause 572.223 that the applicant meets the requirements of, among other things, clause 572.223(2) namely that the Minister is satisfied that while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in schedule 5A relating to the applicant’s financial capacity.
Pursuant to section 65 of the Act, the Minister or a delegate may decide to grant a student visa to an applicant who satisfies the requirements for the visa and the tribunal is empowered to review the merits of any decision by the Minister or a delegate to refuse to grant a visa.
Court’s powers
Section 474 of the Act provides that a decision under the Act is a ‘privative clause’ decision unless it can be said to be affected by jurisdictional error. As noted by their Honours, Gaudron, McHugh, Gummow, Kirby and Hayne JJ in, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (footnotes excluded):
Once it is accepted, as it must be, that s. 474 is to be construed conformably with Ch III of the Constitution, specifically, s.75, the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in
s. 474(2) as “a decision …made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.[24][24] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at paragraph [76].
The issue therefore is whether the tribunal’s decision is affected by jurisdictional error. As noted above, the applicant represented himself throughout these proceedings and does not appear to have been assisted either in the preparation of the application or in the preparation of his submissions. Questions of whether administrative decisions are affected by jurisdictional error are complex and therefore it is not surprising that the applicant has not neatly identified grounds of review either in his application or in his oral submissions to this court.
In its written submissions, the Minister has helpfully identified the issues which could be said to be fairly distilled from the applicant’s application. In particular, the Minister identifies the following grounds from the applicant’s application and affidavit material:
a)the tribunal fell into error because it failed to consider whether he was entitled to a subclass 485 visa rather than the one that he had applied for;
b)the tribunal fell into error in that it failed to consider the applicant’s arguments or in the alternative failed to properly convene a hearing to enable the applicant to put forward his submissions and evidence; and
c)the tribunal fell into error by failing to consider whether exceptional circumstances applied in relation to the applicant’s application.[25]
[25] See paragraph 17 of the first respondent’s outline of submissions filed 17 August 2016.
The Minister otherwise submits that, the remaining matters addressed in the applicant’s application and the affidavit are effectively seeking an impermissible merits review of the tribunal’s decision.
On hearing the applicant’s oral submissions to the court, counsel for the Minister indicated that, it would be possible to distil a fourth ground of review from what the applicant said, namely, that the applicant had requested an adjournment for the purpose of collecting evidence and that this was unreasonably refused and therefore the tribunal’s decision was vitiated for legal unreasonableness.
I agree that the Minister’s characterisation of the applicant’s claims are a fair distillation of the matters raised which could properly be said to give rise to grounds of review on this application. I will therefore deal with the applicant’s claims under the four grounds of review identified above.
Ground One
The first ground of review can be summarised as the tribunal fell into error because it, ‘…failed to consider whether he was entitled to a subclass 485 visa rather than the one that he had applied for.’[26]
[26] See paragraph 17.1 of the first respondent’s outline of submissions filed 17 August 2016.
In his application, the applicant stated:
I have finished my education and waiting to apply for
485 subclass and then Tribunal has organised hearing to see me and my documents…IF student has a facility to apply for 485 visa subclass which was advertised by the Government from the Australian high Commission web site, how come Tribunal will expect student studying till Tribunal hearing even Student finishes his education in Australia and got eligibility to Apply for 485 Visa subclass.
Member has not answered my questions when I have tried to raise these issues, according to their reg member has followed and assessed the application again according 572 visa criteria freshly and affirm the decision not to grant the Visa.
I am really wondering about the situation why tribunal is doesn’t give my weight and not even mention in the decision about my intention (stet).[27]
[27] The applicant’s application filed 4 February 2016.
Similarly, in his affidavit he refers to the fact that as he was granted a visa to study in Australia he should be permitted to apply for other available visas.
In the Minister’s written submissions, the Minister noted that the applicant had applied for a student visa subclass 472, not a graduate visa subclass 485. As such, the delegate, and the tribunal properly considered whether the applicant met the criteria for the student visa.
In support of this submission, the Minister referred the court to the decision in, Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 (“Chaddha”) in which his Honour Justice Gray was confronted with a similar argument, namely, that the applicant in that case argued that, having concluded that the applicant failed to satisfy the criteria for the visa for which he had applied, the tribunal should then have:
…turned its attention to the question whether the first applicant could meet any of the other criteria for the grant of a business (long stay) visa, or whether he could meet the criteria for the grant of a business (short stay) visa.[28]
[28] Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 at paragraph [17].
As noted by his Honour in Chaddha’s case:
Section 46 specifies when an application for a visa is valid. One of the conditions for validity of an application is that it be for a visa of a class specified in the application. Section 47(1) obliges the Minister to consider a valid application for a visa. Section 65(1) makes the grant of a visa dependent upon the satisfaction of the Minister as to various matters, including the satisfaction of criteria for a visa described by the Migration Act or the Migration Regulations.[29]
[29] Chaddha v Minister for Immigration & Multicultural Affairs [2002] FCA 92 at paragraph [19].
Ultimately, in Chaddha the applicant’s claim failed on the basis that in effect what he was asking for was an adjournment to allow him to provide further information which would have satisfied the criteria of a visa for which he had not initially applied.
For similar reasons, the argument raised by the applicant in this case must fail. There is no jurisdictional error arising from the fact that the tribunal did exactly what it was required to do, namely, to consider whether the applicant met the criteria for the visa for which he had applied. There is no obligation on the tribunal, having concluded that the applicant did not satisfy the criteria for one visa in respect of which the application had lodged a valid application, to then consider whether the applicant met the criteria for another type of visa.
In any event, I note that the tribunal went on to say that, ‘As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.’[30]
In this case, the applicant had simply not produced the evidence requested by the tribunal.
[30] See paragraph [32] of the tribunal’s decision record at page 132 of the court book.
Ground Two
The second ground of review as articulated above is that the tribunal fell into error in that it failed to consider: ‘…the applicant’s arguments or properly convene a hearing.’[31]
[31] See paragraph 17.2 of the first respondent’s outline of submissions filed 17 August 2016.
In his application, the applicant refers to concerns he has about the tribunal not giving appropriate weight to matters he raised and that documents provided had not been properly considered.
I accept the submission on behalf of the Minister, and find that the tribunal did consider the information provided by the applicant. The issue in this case was that notwithstanding numerous requests of the applicant from the date on which the applicant filed his application for information which would support the applicant’s application, the applicant failed to provide that information.
To the extent that the applicant alleges that the tribunal failed to convene a hearing or that the tribunal member made up his mind in five minutes, the evidence shows that the tribunal did conduct a hearing with the applicant which lasted for 35 minutes.[32] Given the limited nature of the issues in this application, that is not an insignificant amount of time, particularly where the tribunal had already requested certain documentary evidence and information be provided prior to the hearing. The applicant did not provide that material either before or at the hearing. It is also evident from the tribunal’s reasons that it did consider the matters raised by the applicant.[33]
[32] Court book at page 92 to 95.
[33] See for example paragraph [10] of the tribunal’s decision record at page 130 of the court book; paragraph [15] at page 131; paragraph [21] at page 132; and paragraphs [23] to [29] at page 132.
Ground two is not made out.
Ground Three
The third ground of review as articulated above is the tribunal fell into error by failing to consider, ‘…whether exceptional circumstances applied in relation to the applicant’s application.’[34]
[34] See paragraph 17.3 of the first respondent’s outline submissions filed 17 August 2016.
In his application and affidavit, the applicant repeatedly refers to the fact that there are exceptional circumstances which ought to have been taken into account in relation to his application. He also queried why exceptional circumstances can be taken into account in relation to some visa applications but not others.
The Minister correctly points out that the tribunal had no discretion to waive compliance with the mandatory criteria in clause 572 of Schedule 2 to the Regulations. In the absence of evidence that the applicant satisfied the criteria for the visa for which he had applied, there was no basis on which the tribunal could properly have come to a different view. The requisite criteria is either met or it is not.
In his oral submissions and having heard from the applicant in relation to the question of his request for an adjournment, counsel for the Minister noted that to the extent that it might be said that the applicant’s request for an adjournment ought to have been granted because of his exceptional circumstances, the Minister submitted that the tribunal considered the request for an adjournment, but declined it.
Moreover, to the extent that the applicant indicated that he had suffered from depression in 2015 which precluded him from obtaining the evidence required to support his application for a visa, the tribunal gave consideration to this claim. Ultimately, the tribunal was not satisfied that this explained why the applicant had been unable to obtain the evidence over a period of 8 months.
In response the applicant stated that the refusal of his visa application by the Minister was ‘not a small thing’ for him. He stated that it put a lot of pressure on him and his family.
I find that the tribunal did give consideration to a range of issues raised by the applicant in considering whether to provide him with additional time. This included that:
a)he had no reasonable explanation for why neither he nor his family in India was able to obtain the evidence requested of him for over 8 months even though it was clear from the delegate’s reasons why his application for a visa had been rejected;[35]
b)he had neither been working or studying during 2015, even though the bridging visa he had permitted him to work;[36]and
c)the tribunal considered his mental health claims but did not find them convincing as a reason why he had not been able to obtain the necessary financial information particularly in light of his concession that he had previously obtained student visas in Australia and had supplied the necessary information.[37]
[35] See paragraphs [24]; [26] and [28] of the tribunal’s decision record at page 132 of the court book.
[36] See paragraph [25] of the tribunal’s decision record at page 132 of the court book.
[37] See paragraph [27] of the tribunal’s decision record at page 132 of the court book.
I am not persuaded that it could fairly be said that the tribunal failed to take into account any exceptional circumstances put forward by the applicant in the context of his application for an adjournment.
For these reasons, this ground three is not made out.
Ground Four
The fourth ground of review as set out above is that the applicant had requested an adjournment for the purpose of collecting evidence and that this was unreasonably refused and therefore vitiated for legal unreasonableness.
As stated above, this ground arises from comments made by the applicant at the commenced of this hearing.
In his oral response, counsel for the Minister stated that the tribunal did in fact appropriately consider the applicant’s request for an adjournment and dealt with it appropriately in its reasons.
The tribunal’s reasons record that:
a)the applicant had not provided evidence of his Certificate of Enrolment[38] and concluded that the applicant had not satisfied the relevant clause in the Regulations;[39]
b)the applicant had not previously provided any evidence that related to his financial capacity and was requested to do so in the invitation to hearing;[40]
c)it referred to the delegate’s decision, which recorded that the applicant had been given 28 days to provide the necessary evidence in relation to his financial capacity, which he did not comply with but rather asked for further time;[41]
d)in the remaining 8 months of 2015, the applicant did not obtain the evidence regarding his financial capacity;[42]
e)the applicant was asked to provide it 7 days prior to the hearing and he did not comply;[43]and
f)he attended the hearing and again did not provide any evidence as to his financial capacity[44] but rather requested an adjournment.
[38] See paragraphs [9] to [13] of the tribunal’s decision record at pages 130 to 131 of the court book.
[39] See paragraph [13] of the tribunal’s decision record at page 131 of the court book.
[40] See paragraph [19] of the tribunal’s decision record at page 131 of the court book.
[41] See paragraph [20] of the tribunal’s decision record at page 131 of the court book.
[42] See paragraph [21] of the tribunal’s decision record at page 132 of the court book.
[43] See paragraph [22] of the tribunal’s decision record at page 132 of the court book.
[44] See paragraph [23] of the tribunal’s decision record at page 132 of the court book.
It is clear from the tribunal’s decision record that the tribunal considered the request and explained why it did not grant the adjournment. The reasons provided by the tribunal in relation to the request for an adjournment and its decision to refuse that request are comprehensive logical and the tribunal’s decision in this regard was reasonably open to it. I am not satisfied that the applicant has established that the tribunal exercised its power to refuse the adjournment unreasonably.
Ground four is not made out.
Conclusion
For the reasons set out above, as none of the grounds identified above, which in my view are a fair reflection of the best arguments available to the applicant on the basis of the content of his application, his affidavit and his oral submission, disclose a jurisdictional error, I therefore dismiss the application with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 20 July 2018
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