Hoang v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 554
•23 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hoang v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 554
File number: PEG 258 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 23 March 2021 Catchwords: MIGRATION – student visa – decision of the Administrative Appeals Tribunal – extension of time application – lack of merit – extension of time refused. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.05
Migration Act 1958 (Cth), ss 359AA, 477
Migration Regulations 1994 (Cth), cll 500.211, 500.212 of Schedule 2
Cases cited: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 94 Date of hearing: 19 March 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms J Tran Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 258 of 2020 BETWEEN: VAN HUNG HOANG
Applicant
AND: MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 MARCH 2021
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477 of the Migration Act 1958 (Cth) be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of Vietnam. He arrived in Australia on 19 February 2014 on a student visa (Court Book (“CB”) 93).
On 5 March 2018, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 52-52).
On 12 April 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 86-94). The delegate was not satisfied that the applicant met cl 500.212 of the Migration Regulations 1994 (Cth) (the “Regulations”). Relevantly, the delegate determined that the applicant was not a genuine temporary entrant.
On 30 April 2018, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 95-96).
On 17 May 2019, the applicant was invited to provide further information to the Tribunal in relation to his current enrolment status and the genuine temporary entrant criterion (CB 102-109).
On 29 May 2019, the applicant gave the Tribunal the information it had requested (CB 110-123). On 3 July 2019, the applicant provided further supporting documents to the Tribunal (CB 140-182).
On 10 July 2019, the applicant attended a hearing before the Tribunal (CB 183-186). The applicant was given additional time to provide any further information after the hearing.
On 15 July 2019, the applicant gave the Tribunal further submissions and supporting documents (CB 191-209).
On 15 May 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 213-216).
On 24 August 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application was filed outside of the time period specified in s 477 of the Migration Act 1958 (Cth) (the “Act”). The application was filed 67 days late. In the circumstances, the applicant must obtain an order extending time to pursue his substantive application.
These reasons for judgment address whether the applicant should be granted an extension of time within which to file his substantive application for judicial review.
EXTENSION OF TIME APPLICATION
As noted, the applicant requires an extension of time within which to commence these proceedings. Section 477(1) of the Act requires an application to be filed within 35 days of the Tribunal’s decision. Accordingly, the applicant was required to file his application by 19 June 2020. He did not file an application until 24 August 2020 – 67 days late.
Section 477(2) states that the Court may make an order extending the relevant time period if:
(a)an application for such an order is made in writing explaining why such order should be made: the Act, s 477(2)(a); and
(b)the Court is satisfied that it is in the interests of the administration of justice for the order to be made: the Act. s 477(2)(b).
Here, the applicant has, in his substantive application to the Court, indicated that he requires an extension of time. He has also indicated that, because of circumstances beyond his control, it was “difficult to fill up document”.
The Court is satisfied that the requirements of s 477(2)(a) have been satisfied.
It is noted that the applicant also filed an affidavit affirmed 9 June 2020. That affidavit, however, does not address why the application was filed late. Accordingly, the applicant has not complied with r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth). Despite this, the Court will nevertheless proceed on the basis that, if it is deemed appropriate to do so, the Court can waive the need to comply with this rule.
In relation to s 477(2)(b) of the Act (and whether it is in the interests of the administration of justice to grant an extension of time), the Court explained to the applicant (who was unrepresented) that the matters it may consider in this regard are not limited. However, the most common factors considered by the Court include:
(a)the length of delay and prejudice;
(b)whether the explanation for the delay is adequate; and
(c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The Court invited the applicant to address each of these factors and “anything else he considered relevant”. His responses are discussed in the consideration that follows. The Minister’s submissions are also discussed below.
CONSIDERATION
Delay and Explanation
The delay here is 67 days. This is not insignificant. However, if the applicant has an acceptable explanation this may mitigate the delay to some extent.
As noted, the applicant’s affidavit provided no explanation as to why the application was lodged late. The application for an extension of time simply stated that the application was filed late because of:
… circumstances beyond the control of the person concerned about difficult to fill up document
At the hearing, the applicant explained that, as English is his second language, he did not fully understand or appreciate what was required of him. He also explained that his father “had an illness” and that his mother was taking care of him. This, the applicant stressed, “caused difficulties” as his parents were supporting him.
On the basis of the information before it, the Court does not consider the explanation provided to be entirely satisfactory.
In relation to the applicant having difficulty “completing the document”, the Court notes the complexities faced by all unrepresented applicants when tackling concepts like “jurisdictional error”. This task is made even harder for persons for whom English is not the first language.
The Court accepts that the applicant may have had “difficulty” completing the application. However, the applicant is in a similar situation to many applicants who file applications in this Court. The vast majority of those applicants do so within the required time limit – despite difficulties of the sort highlighted here.
Accordingly, the Court gives only minimal weight to the fact that the applicant had difficulty completing the application.
In relation to the applicant’s oral submissions that his father was ill and his mother was required to support him, the Court accepts that the applicant was under considerable stress at the relevant time. The Court will, accordingly, give this some weight in the applicant’s favour in determining whether to grant an extension of time.
Prejudice
The Minister does not claim any prejudice if an extension is granted.
While the absence of prejudice does not warrant an extension being granted on that basis alone, the Court will give this some weight in favour of granting the extension of time.
Merits
The merits of the proposed application are very often the most critical factor in determining whether an extension should be granted. It will rarely be in the interests of the administration of justice to extend time when an application has no reasonable prospects of success.
When considering the merits of the judicial review application, the Court does so on a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. It bears in mind that the applicant need only raise an arguable case and that the applicant (here, an unrepresented litigant whose first language is not English) may not have properly formulated his grounds of review. As such, the Court remains astute and alert to the possibility of error in the Tribunal’s decision itself: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
In order to determine whether the substantive application here has merit, it is necessary to provide a summary of the Tribunal’s decision.
The Tribunal’s decision is 4 pages long and spans 21 paragraphs.
The Tribunal began by identifying the type of visa sought ([1]-[2]). It then summarised the delegate’s decision and confirmed that the applicant had appeared before it at a hearing (at [3]-[5]).
The Tribunal noted that the issue before it was whether the applicant met cl 500.211 of the Regulations (at [7]). The relevant legislative criterion were then summarised by the Tribunal (at [8]-[9]).
The Tribunal noted that the applicant had advised in his response to the request for information that he was currently enrolled in a course of study (at [10]). However, the applicant did not identify what that course of study was. The Tribunal noted that, at the hearing, it had asked the applicant what course he was enrolled in and that he stated that he had enrolments in a Certificate IV in Leadership and Management and a Diploma in Leadership and Management. The applicant further explained that he had completed two terms of the Certificate IV in Leadership and Management but that he had stopped studying because his student visa application had been refused (at [11]).
The Tribunal put to the applicant (pursuant to s 359AA of the Act) information that indicated that his enrolment in the Certificate IV in Leadership and Management and a Diploma in Leadership and Management had been cancelled (at [12]). The applicant stated that he had enrolled in the courses (at [13]).
The Tribunal then explained to the applicant that if he was not enrolled in a course then the Tribunal could decide the review on the basis of the enrolment criterion (at [14]). The Tribunal adjourned to allow the applicant’s representative more time to explain this to the applicant.
The Tribunal continued:
15. When the hearing reconvened, the applicant’s representative confirmed that he had explained matters to his client. However, the applicant continued in his assertions. He also made reference to his father’s health, stating that he had suffered from tuberculosis. This had been mentioned in written submissions lodged by the applicant’s representative prior to hearing, and corroborated with documentary evidence. The submissions stated, in effect, that his father had been admitted to hospital with pulmonary tuberculosis and neural disease in early May 2014, and that his health had improved by about the end of October 2014. The applicant appeared to be advancing this information as an explanation for his poor progress in his studies. Slightly more to the point, he explained that he had not understood that he could continue to study after his visa application had been refused, and had been waiting for the Tribunal’s decision before recommencing his studies. The Tribunal accepts that the applicant had thought that to be the case. However, neither that point nor the applicant’s evidence as to his father’s health can, ultimately, make any difference to the disposition of this review application because the enrolment criterion of cl.500.211 of Schedule 2 of the Regulations is a mandatory requirement for the grant of a student visa and the Tribunal has no discretion to dispense an application from that requirement.
16. Throughout the hearing, the Tribunal was disturbed by the applicant’s apparent lack of comprehension of much of what was being said to him. The Tribunal therefore decided to adjourn the matter to allow the applicant, with his representative’s help, to make written submission on the issue of enrolment and present any further documentary evidence he wished to present. This was done explicitly on the basis that the hearing would only be called back on if those submissions and any evidence submitted with them indicated that the enrolment issue could be overcome and that consequently the application should be decided on the basis of the genuine temporary entrant requirement of cl.500.212.
17. The applicant’s representative lodged written submission in due course. Those submissions asserted that “Mr HOANG was enrolled in the Diploma of Leadership and Management commencing on 8/10/2018 and ends on 4/10/2019 with the Cambridge International College. We enclose herewith copy of the enrolment information.” The enrolment information referred to consisted of a copy of an offer letter dated 26 September 2017 from Cambridge International College and copies of CoE 9288D295 (Certificate IV in Leadership and Management) and CoE 9288D619 (Diploma of Leadership and Management). These CoEs are those which PRISMS noted as having been cancelled. The representative’s submissions also repeat submissions made at hearing to the effect that the applicant’s failure to continue with his Certificate IV course and his failure to commence his Diploma course were the result of his misunderstanding as to his position once his visa was refused. Finally, it should be noted that the submissions also have attached to them a copy of a notification of cancellation of enrolment sent to the applicant by Cambridge International College in 2018, on its face shortly after the applicant ceased attending classes for his Certificate IV in Leadership and Management. These submissions and the evidence attached do not provide any reason to suppose that the enrolment issue could be overcome.
18. On the date of this decision the Tribunal, out of an abundance of caution, obtained a further copy of the applicant’s PRISMS record. It contains no entries that were not contained in the version of the record put to the applicant at hearing. The Tribunal will, therefore, dispose of this case without re-listing it for further hearing.
The Tribunal determined that the applicant had not been enrolled for a considerable period of time and that he was also not enrolled at the time of the decision (at [19]). Accordingly, cl 500.211 of the Regulations was not met.
On the basis of the above, the Tribunal affirmed the delegate’s decision (at [20]-[21]).
Proposed Grounds of Review
The application for judicial review contains the following proposed grounds:
1. The Second Respondent misinterpreted or misapplied regulation 500.211 of the Migration Regulations 1994
Particulars
(a) Paragraphs 8 to 20 of the Decision Record made by the Second Respondent stated that at the time of the decision made by Second Respondent, the Applicant was not enrolled in a course of study.
(b) The regulation 500.211 (a) should be construed that at the time a decision is made on the application by the First Respondent, the applicant is enrolled study.
(c) The Applicant at the time of making the Application for the Student Visa Subclass 500 on 5 March 2018 until it was refused by the First Respondent, was enrolled in Certificate IV in Leadership and Management in Cambridge International College.
2. Alternatively, the Second Respondent was erred in fact finding that the Applicant was not enrolled in a course of study at the time of the Application for the Student Visa was made or when the First Respondent refused the Applicant’s Application.
Particulars
The Applicant refers to and relies on paragraph l(a) to (c) above.
3.Consequently, the Second Respondent failed to consider other criteria in connection to the Sub Class Visa 500.
(a) The Second Respondent by reason of the misconstruction of the regulation 500.211(a), did not consider other criteria required by the Act.
4. The Second Respondent’s decision to affirm the First Respondent’s decision to refuse the Applicant’s Application was objectively unreasonable without logical and probative basis.
Particulars
(a) By paragraphs 14 of the Decision Record, The Second Respondent requested the Applicant to provide COE of current enrolment at the time of the hearing on 10 July 2019 was unreasonable by reason that the Applicant’s Student Visa was expired on 13 March 2018. The Applicant was unable to provide a COE as all the education providers refused to enrol the Applicant into any course as his student visa has had expired.
(b) The Certificate IV in Leadership and Management and Diploma in Leadership and Management were cancelled by Cambridge International College as the I Applicant’s student visa was expired on 13 March 2018. It was outside the control of the Applicant.
(c) By reason that the Applicant was unable to provide the First Respondent with a record of current enrolment, the First Respondent was unreasonably satisfied that the Applicant is not enrolled in a course of study.
As noted, the applicant filed an affidavit affirmed 9 June 2020. That affidavit (comprising 29 paragraphs) outlines the factual background until the time that the Tribunal affirmed the decision to refuse the visa. It also contains a number of attachments, including a medical document dated 21 May 2014, a letter of release dated 29 September 2014, unit enrolments in a Certificate IV in Project Management dated 7 October 2016, “Course Progress Tracking Records” and Student Progress Reports, various confirmations of enrolment in a number of different courses and emails advising the applicant of cancellation of an enrolment.
The applicant was given an opportunity to file any amended application, further affidavits and an outline of written submissions. Nothing further was filed.
The materials before the Court thus include the judicial review application filed 24 August 2020, the affidavit of the applicant affirmed 9 June 2020, a Court Book numbering 216 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 8 March 2021.
The applicant was assisted by a Vietnamese interpreter before this Court. At the commencement of the hearing, the applicant stated that he was comfortable speaking to the Court in English but would ask the interpreter for assistance if he needed assistance or did not understand what was being asked of him. The Court explained to the applicant that if, at any point, he was struggling he should let the Court know so that the interpreter could assist him. Ultimately, the applicant did not call on the interpreter for any assistance. The Court is satisfied that the applicant was able to properly and meaningfully participate in the hearing. His submissions were clear and of considerable assistance.
The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions. The applicant confirmed that he had copies of both documents with him in Court.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there was an arguable case that the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(d)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(a)where the decision-maker ignores relevant material: Craig at 198;
(b)where the decision-maker relies on irrelevant material: Craig at 198;
(c)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(d)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(e)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. Rather, the role of the Court when determining whether an extension of time should be granted is restricted to determining if there is an arguable case that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that the Tribunal asked him about his confirmation of enrolment. He also referred to the delegate’s finding that he had taken “too many courses”. The applicant also indicated that the Tribunal did not understand him.
After hearing from Ms Tran for the Minister, the applicant became visibly distressed. He stated that no one would help him with this case because it was “too hard”. He also stressed that he had to provide for his family.
The Court will address the applicant’s submissions below.
Ground 1
Ground 1 takes issue with the Tribunal’s interpretation of cl 500.211 of the Regulations which provides:
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia--the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis
(c) if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa
It is apparent that cl 500.211(b)-(d) are not applicable in the circumstances of this case.
The applicant argues that cl 500.211(a) requires that he be enrolled in a course of study at the time of the delegate’s decision. That is, he claims, the relevant time of inquiry.
Clause 500.211 is a time of decision criterion. The “time of decision” is the time of decision for the relevant decision-maker. There is nothing to suggest that the “time of decision” is confined to the time of the delegate’s decision. In fact, the very purpose of the “time of decision” criterion is (in effect) to provide a basis for an unsuccessful applicant to “remedy” the non-enrolment if the matter is appealed to the Tribunal so that they meet the criterion on merits review.
There is no arguable case that the Tribunal has misconstrued cl 500.211. The Tribunal needed to be satisfied that the criterion were met at the time of its decision.
Ground 1 raises no arguable case of jurisdictional error.
Ground 2
Ground 2 argues that the Tribunal made “errors of fact” in finding that the applicant was not enrolled at the time of the application or when the visa was refused by the delegate.
Here, the Tribunal never made a finding that the applicant was not enrolled at the time of the application or at the time of the delegate’s decision. Accordingly, no error of fact arises.
The only finding that the Tribunal made was that the applicant was not enrolled at the time of its decision. That finding was correct (and the applicant does not dispute such).
Insofar as this ground relies on the particulars of ground 1, for the reasons given above in relation to ground 1 it has no reasonably arguable basis.
Ground 2 does not identify any arguable case of error.
Ground 3
In ground 3, the applicant argues that the Tribunal should have considered the other criterion required to be granted the visa (i.e., the Tribunal should have considered the genuine temporary entrant criterion).
In circumstances where the applicant did not satisfy the enrolment criterion, it was unnecessary for the Tribunal to consider any other criterion. The Tribunal was bound to affirm the delegate’s decision. There was no discretion to waive the enrolment criterion.
Accordingly, the non-enrolment was sufficient to dispose of the application in its entirety without the need to consider the other criterion.
Ground 3 does not identify any arguable case of error.
Ground 4
Ground 4 argues that the Tribunal’s decision was unreasonable as the Tribunal asked for a current confirmation of enrolment in circumstances where the applicant claims he could not obtain a confirmation of enrolment because he did not have a visa.
As noted above, the Tribunal has no discretion to waive the enrolment criterion. Hence, even if the Court accepts that the applicant could not obtain an enrolment because education providers refused to enrol the applicant in a course (as his previous student visa had expired and he did not have a current one) this is irrelevant. The applicant required evidence of enrolment. His reasons for not having an enrolment were of no relevance to the Tribunal in assessing the matter before it.
Whether or not the circumstances in which the applicant came to be unenrolled arose outside of his control or not, the Tribunal was bound to affirm the decision once it determined that the applicant did not meet the relevant enrolment criterion.
The Tribunal’s decision was not “unreasonable”. It was the only decision open to be made.
The Court notes that the applicant states in particular (b) that his enrolments in the Certificate IV in Leadership and Management and Diploma in Leadership and Management were cancelled because his student visa expired. This is incorrect. The applicant’s enrolment was cancelled because he did not attend his classes (CB 194). It had nothing to do with his previous student visa expiring.
Ground 4 raises no arguable case of error on the part of the Tribunal.
Applicant’s Affidavit
The applicant’s affidavit provides factual background which is apparent from the materials in the Court Book. Nothing in the affidavit identifies any arguable case of jurisdictional error.
The Court notes that [26]-[28] of the applicant’s affidavit refer to the applicant’s belief that his enrolment in the Leadership and Management course was cancelled because the delegate refused him the visa. As noted above, that is incorrect. The enrolment was cancelled for non-attendance.
The applicant also states that he has tried to enrol in courses but has been “refused by educational institutions”. This is irrelevant to the Court’s task on judicial review. Further, for the reasons provided above, this fact (if accepted) did not cure the applicant’s inability to meet cl 500.211 or identify any arguable case of error on the part of the Tribunal.
The applicant’s affidavit also annexes various documents. To the extent that these documents are related to his studies in Australia, they are irrelevant to the Court’s task on judicial review. These documents do not identify any arguable case of jurisdictional error. They merely invite the Court to reconsider the merits of the case.
One document appears to be a medical document stating that the applicant’s father was diagnosed with pulmonary tuberculosis neural disease in 2014. The document was not before the Tribunal but submissions do appear to have been made in relation to this issue (at [15]). It is unclear what relevance this document has to the matter at hand and, in any event, the Tribunal addressed the issue at [15] and noted (correctly) that it was irrelevant to the point in issue.
No arguable case of jurisdictional error arises in this regard.
The applicant’s affidavit raises no arguable case of jurisdictional error.
Applicant’s Oral Submissions
To the extent that the applicant submits that the Tribunal asked him about his confirmation of enrolment, but the delegate’s decision concerned the genuine temporary entrant criterion, the Court is satisfied that there is no error of the kind addressed in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
Here, the Tribunal put information to the applicant pursuant to s 359AA of the Act (namely, his non-enrolment) that would be the reason for the Tribunal affirming the decision of the delegate. It also explained to him that the determinative issue had changed and granted the applicant an adjournment to discuss this with his representative (at [14]).
Accordingly, there is no arguable case of error that the Tribunal failed to afford procedural fairness.
The applicant also made a reference to the Tribunal not understanding him.
The applicant was assisted by an interpreter at the hearing and his migration agent was present. The Court also notes the Tribunal’s comments that:
16. Throughout the hearing, the Tribunal was disturbed by the applicant’s apparent lack of comprehension of much of what was being said to him. The Tribunal therefore decided to adjourn the matter to allow the applicant, with his representative’s help, to make written submission on the issue of enrolment and present any further documentary evidence he wished to present…
The Tribunal gave the applicant every opportunity to participate and engage with the Tribunal. No arguable error arises in relation to whether the Tribunal failed to understand the applicant and, as such, denied him the right to participate. On the contrary, clear efforts were made to ensure that the applicant was able to advance his case.
The applicant also made reference to the fact that he has to provide for his family. Arguably, the applicant is suggesting that he had to cease his studies so that he could support his family. He may be suggesting that he needs to study so that he can provide for his family. The Court is sympathetic to the situation the applicant now finds himself in. However, the fact that he had to or has to provide for his family did not/does exempt him from having to meet the enrolment criterion. It is also not a basis for the Court to find that the Tribunal has fallen into jurisdictional error.
Finally, the applicant stated that he has had to come to the Court “on his own” as he had no one to help him. As unfortunate as this is, there is no right to legal representation in migration proceedings: ADF15 v Minister for Immigration & Border Protection [2018] FCA 1099.
The applicant’s oral submissions fail to identify any arguable case of jurisdictional error on the part of the Tribunal.
Conclusion
The applicant’s proposed grounds of review fail to identify any arguable case of jurisdictional error. The Court has also considered the materials before it and is not satisfied any arguable error arises in the Tribunal’s decision. The Tribunal came to the only conclusion open to it.
Overall, the lack of merit in the applicant’s substantive application weigh heavily against an extension of time being granted.
Should the extension be granted?
While some weight can be afforded to the applicant’s explanation for failing to file his substantive application on time and while the Minister will not suffer prejudice if the application for an extension of time is granted, the lack of any arguable case of jurisdictional error weighs heavily against granting an extension of time. Overall, it is not in the interests of the administration of justice to grant an extension of time in this matter.
The application for an extension of time is thus refused.
CONCLUSION
The application for an order pursuant to s 477 of the Act is refused.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 March 2021
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