Islam v Minister for Immigration
[2019] FCCA 1453
•30 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISLAM v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1453 |
| Catchwords PRACTICE AND PROCEDURE – Application for extension of time – factors for consideration. |
| Legislation Education Services for Overseas Students Act 2000 (Cth), s.20 Migration Act 1958 (Cth), Pt.5, Div.5, Pt.7, ss.116, 353, 359AA, 359A, 360, 360A, 363, 368, 368D, 474, 476, 477, 486I Migration Amendment (Review Provisions) Bill 2006 (Cth), sch.1, cll.3,5 |
| Cases cited: Wang v Minister for Immigration & Citizenship [2007] FCA 488 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 |
| Applicant: | KAZI SHIFAT ISLAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 10 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 13 August and 3 December 2014, and 20 February 2015 |
| Date of Last Submission: | 20 February 2015 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Hooker |
| Solicitors for the Applicant: | Shahid Shakur |
| Counsel for the First Respondent: | Mr P Macliver |
| Second Respondent: Solicitors for the Respondents: | Submitting appearance save as to costs Australian Government Solicitor |
ORDERS
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
That pursuant to s.477(2) of the Migration Act 1958 (Cth) time for filing of the Originating Application be extended to the actual time of filing.
That pursuant to r.1.06 of the Federal Circuit Court Rules 2001 (Cth) the requirement in r.44.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to file a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision under cover of an affidavit, be waived.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 10 of 2014
| KAZI SHIFAT ISLAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Kazi Shifat Islam (“Mr Islam”), filed an application (“Judicial Review Application”) seeking judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of an oral decision of the second respondent, the former Migration Review Tribunal, now the Administrative Appeals Tribunal (“Oral Decision” and “Tribunal” respectively). The Oral Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to affirm the Delegate’s Decision to cancel Mr Islam’s Subclass 573 Higher Education Sector visa (“Student Visa”). A copy of the written statement of the Oral Decision was produced on 18 December 2013 (“Tribunal Reasons”) and is at Court Book (“CB”) 199-212.
An issue arises as to whether the Judicial Review Application was filed outside the 35 day time limit in which to commence proceedings under s.477(1) of the Migration Act.
The following materials are before the Court for consideration:
a)the Judicial Review Application;
b)an affidavit of Mr Islam sworn 13 January 2014 (“January 2014 Islam Affidavit”)
c)an affidavit of Mr Islam sworn 22 May 2014 (“Audio Affidavit”);
d)an affidavit of Mr Islam sworn 26 June 2014, annexing the transcript of the hearing before the Tribunal (“Tribunal Transcript” and “Tribunal Hearing” respectively);
e)an affidavit of Mr Islam sworn 6 August 2014 (“August 2014 Islam Affidavit”), save for the final sentence of [4] which was struck out as inadmissible opinion evidence;
f)an affidavit of Shahid Shakur sworn 21 August 2014 (“Shakur Affidavit”);
g)the CB;
h)Mr Islam’s amended Judicial Review Application dated 9 September 2014 (“Amended Judicial Review Application”);
i)outlines of submissions:
i)of Mr Islam dated 6 August 2014 and 18 February 2015; and
ii)of the Minister dated 6 August 2014 and 16 February 2015; and
j)a copy of the transcripts of the hearing before the Court on 13 August 2014 and 20 February 2015 (“2014 Hearing Transcript” and “2015 Hearing Transcript” respectively).
The Court acknowledges that these Reasons for Judgment have been very significantly delayed. The essential reason for that is the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, as well as being judicially “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers, including the CB, the affidavits, the submissions and the transcripts. In those circumstances, the delay, which the Court very much regrets, has had no effect upon the Court’s preparation of these Reasons for Judgment.
Background
The relevant background is as follows:
a)Mr Islam, a citizen of Bangladesh, first arrived in Australia on 15 May 2010 on a Subclass 572 Vocational Education and Training Sector visa;
b)on 13 September 2011 Mr Islam was granted the Student Visa, which was in effect until 13 November 2012, having been enrolled in a Diploma of Business course at the Perth Institute of Business and Technology (“Institute”): CB 122-123;
c)on 15 June 2012, having failed to pass his Economics and Legal Framework units (“Units”), Mr Islam sought to be allowed to do the Units again, and in a statement signed by Mr Islam and dated 18 June 2012 he acknowledged that this was his last chance to pass the Units, and that he would not ask for another chance: CB 6 and 7;
d)on 19 June 2012 the Institute advised Mr Islam that he would be given one final attempt to pass his Units, and that if he did not he would be reported to the Department of Immigration and Citizenship (“Department”), and noted that Mr Islam had written to the Institute confirming that he understood this and that he would not be given another chance: CB 8;
e)Mr Islam was advised on 26 September 2012 that he was at risk of having his enrolment terminated and that he was due to be reported to the Department on 23 October 2012 for poor academic progress, and if he did not make an appointment to see the Academic Director within 20 working days to discuss the matter or lodge an appeal he would be reported to the Department: CB 9-12;
f)on 16 October 2012 Mr Islam sent an email asking to be enrolled in the Units, and stating that if he was given another chance he would pass the Units, while sending another email to the Academic Director advising that he was sick during the whole of the semester, and fell down the stairs and seriously injured his back, and that was why he could not come to class: CB 25-26;
g)in response to Mr Islam advising he had yet not made an appointment, the Academic Director advised Mr Islam to come and see her at 10.30am on 22 October 2012 with supporting documentation, however Mr Islam did not attend the appointment, and by email sent on 24 October 2012 he requested another appointment: CB 45-46;
h)on 25 October 2012 the Institute certified Mr Islam as not achieving satisfactory course progress: CB 37, and issued Mr Islam with a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) (“Section 20 Notice”): CB 38-43, and advised the Department on 2 November 2012 that it had issued the Section 20 Notice to Mr Islam: CB 37-44;
i)in response to the Section 20 Notice Mr Islam attended the Department’s Perth office on 2 November 2012 and provided information as to his claimed back injury, which had allegedly occurred on 9 September 2012: CB 72-74;
j)the Department issued Mr Islam with a Notice of intention to consider cancellation of his Student Visa, and invited Mr Islam to provide his comments, information and supporting documents as to why his Student Visa should not be cancelled at an interview on 13 November 2012: CB 52-55, 72 and 74;
k)immediately following the interview on 13 November 2012 the Delegate’s Decision was to cancel Mr Islam’s Student Visa under s.116(1)(b) of the Migration Act: CB 77-81;
l)on 16 November 2012 Mr Islam made an application to the Tribunal for review of the Delegate’s Decision to cancel his Student Visa, and provided in support of his application to the Tribunal:
i)an affidavit sworn by himself on 2 October 2013 (“Tribunal Affidavit”): CB 163-168;
ii)an affidavit sworn by Shahedul Islam on 16 September 2013 (“Shahedul Islam Affidavit”): CB 144-145;
iii)an affidavit sworn by MD Iftakher Hossain on 20 September 2013 (“Hossain Affidavit”): CB 146-147; and
iv)written submissions dated 28 November 2013 prepared by his lawyer, Mr Shakur: CB 189-195;
m)Mr Islam attended the Tribunal Hearing on 29 November 2013 at which he gave evidence and presented argument, and was accompanied by his lawyer, Mr Shakur, and both Mr Hossain and Mr Shahedul Islam were also present: CB 180-182 and 200-208;
n)at the conclusion of the Tribunal Hearing on 29 November 2013 the Tribunal delivered the Oral Decision that affirmed the Delegate’s Decision to cancel Mr Islam’s Student Visa: CB 184-186; and
o)on 19 December 2013 the Tribunal provided Mr Islam with the Tribunal Reasons: CB 197-212.
Tribunal Reasons
In the Tribunal Reasons the Tribunal:
a)explained that the review process comprised two separate steps, the first was for the Tribunal to determine if Mr Islam had failed to comply with Condition 8202 of Sch.8 (“Condition 8202”) to the Migration Regulations 1994 (Cth) (“Migration Regulations”), and if the Tribunal was satisfied Condition 8202 was not complied with the second step was to consider if it should exercise the discretion not to cancel the Student Visa having regard to what are colloquially known as the “PAM 3 Guidelines”: CB 200 at [5] and [7];
b)referred to the certification by the Institute that Mr Islam had failed to make satisfactory course progress as sufficient to constitute a failure to meet Condition 8202, and therefore that Mr Islam was in breach of Condition 8202: CB 200 at [6];
c)noted Mr Islam’s academic history: that he had completed only one course in three and a half years, that he had made poor academic progress having failed units in every semester since commencing (save for the first semester in 2010), that he was found to have committed plagiarism, and that he had been doing very poorly in his studies prior to the Institute issuing the Section 20 Notice: CB 201 at [9]-[13];
d)mentioned Mr Islam’s responses to his poor performance including that:
i)he found the subjects really hard;
ii)he wished to change courses but the Institute said to finish the present course first; and
iii)he was forced to live in his car because the lease ran out on his home, and he could not obtain a new lease, and that this occurred when an assignment was due which meant he was forced to complete the assignment using his mobile phone to locate references and this is why he failed the Units and was cited for plagiarism: CB 201 at [9]-[13];
e)put to Mr Islam his academic record and informed him that based on the information and documents, and subject to his response, it would lead the Tribunal to find that other than for the first semester of his study in 2010 Mr Islam has made poor academic progress and to therefore be satisfied that the Student Visa ought be cancelled: CB 202 at [14];
f)allowed an adjournment for Mr Islam to confer with his lawyer and upon being advised that Mr Islam sought a 7 day adjournment stated that the information put to Mr Islam under s.359AA of the Migration Act was information Mr Islam was already aware of and declined to grant the adjournment: CB 203 at [16];
g)detailed that Mr Islam’s response to the information put to him was that he asked to defer his exam for three days but was told he could not, he sought appointments with the Academic Director from 25 September 2012 but could not make an appointment until 18 October 2012, and on that day he had to go to hospital: CB 203 at [17];
h)found the Institute had certified Mr Islam was in breach of Condition 8202, the PRISM system accessed by the Tribunal confirmed this, and Mr Islam himself conceded this at the Tribunal Hearing, and therefore Mr Islam had not complied with a condition of his Student Visa: CB 204 at [22]-[26];
i)referred to the inconsistencies in Mr Islam’s claim that he failed to achieve satisfactory course progress as his family members had been ill and this adversely impacted upon his performance, finding much of this evidence was implausible and that Mr Islam provided no cogent explanations when this was put to him: CB 205-206 at [28]-[34];
j)noted the submissions of Mr Islam’s lawyer that Mr Islam received wrong advice or course counselling, and that he was enrolled in a third unit against his will as a result of bad advice by the Institute and therefore the situation caused was beyond his control, and when it put to him that his enrolment indicated he was undertaking only two units and failed both he changed his evidence to a different time period that again was not consistent, before changing the evidence again, and found that Mr Islam made no mention of this claim to the Delegate, and would have done so if it were in fact true: CB 206-207 at [35]-[43];
k)referred to Mr Islam directly contradicting himself when providing evidence about a back injury sustained in 2012 that prevented him from attending his exam and also noted there was no contemporaneous medical evidence to support the claim: CB 208 at [46]-[50] and CB 208-209 at [53]-[54];
l)preferred the evidence of the Course Co-Ordinator to that of Mr Islam when finding that Mr Islam never made an application or asked for a deferred exam as a result of his alleged back injury: CB 209 at [56]-[57];
m)found Mr Islam was not a witness of truth and placed no weight on the various claims Mr Islam made as to why he did not maintain satisfactory course progress: CB 210 at [59];
n)considered that the number and extent of inconsistencies in the evidence given by Mr Islam had “poisoned the evidentiary well”, such that the Tribunal considered that any additional material or evidence produced after the Tribunal Hearing would be similarly tainted by the strong adverse credit findings already made and therefore time and an opportunity to provide anything further was not granted: CB 210 at [61]; and
o)had regard to the relevant considerations in the PAM 3 Guidelines to determine whether the discretion to cancel the Student Visa should be exercised, and in the exercise of its discretion, decided to affirm the Delegate’s Decision that the Student Visa should be cancelled: CB 210-211 at [63]-[65].
Amended Judicial Review Application
In the Judicial Review Application no application was made for an extension of time.
On 5 February 2014 a Registrar of the Court had ordered Mr Islam to file and serve on or before 19 March 2014 any amended application giving particulars of the grounds of review and any affidavits, including any affidavits in support of any application for an extension of time. No amended Judicial Review Application was filed in accordance with the Registrar’s orders.
At the hearing on 13 August 2014 Mr Islam was represented by very experienced junior Counsel, Mr Hooker, instructed by Mr Shakur, the lawyer who acted for Mr Islam at the Tribunal Hearing.
On 13 August 2014 the Court made orders that Mr Islam file and serve any amended Judicial Review Application, and affidavits and an amended outline of submissions in relation to the amended Judicial Review Application (including the application for an extension of time) by 20 August 2014. That order arose from submissions made by Mr Islam’s Counsel, Mr Hooker, at the hearing on 10 August 2014, at which reference was made to the earlier order in relation to an extension of time, and at which it was not conceded that an extension of time was necessary, but submitted that evidence could be put on and submissions prepared in support of an application for an extension of time if need be.
Mr Islam failed to comply with the order of 13 August 2014, in that he:
a)filed a minute of amended grounds of review on 21 August 2014, a day outside the time limit prescribed by the 13 August 2014 orders, and which did not make any reference to an extension of time; and
b)on 9 September 2014 he filed the Amended Judicial Review Application seeking an extension of time, but under the heading “Grounds of application for extension of time” Mr Islam’s lawyer, Mr Shakur, wrote “N/A”.
On 21 August 2014, again a day out of time, the Shakur Affidavit was filed in support of an application for an extension of time, which at that stage had not been made. The content of the Shakur Affidavit is set out below: see [17] below.
The grounds of the Amended Judicial Review Application are as follows:
In making its decision, or purported decision, of 29 November 2013 on the merits review of the decision of the delegate of the First Respondent of 13 December 2012 to cancel the Applicant's student subclass 572 visa (the decision under review), the Second Respondent committed jurisdictional error in that:
1. It denied the Applicant procedural fairness by failing to give him a fair opportunity to be heard.
Particulars
The Second Respondent:
(a) failed to consider, properly or at all, the Applicant's Outline of Written Submissions of 28 November 2013; and
(b) denied the Applicant a further opportunity to put on more evidence and present further submissions.
2. It acted unreasonably in its exercise, or purported exercise, of the statutory power conferred by Part 5 of the Migration Act 1958 (Cth) (the Act).
Particulars
The Second Respondent:
(a) failed to consider, properly or at all, the Applicant's Outline of Written Submissions of 28 November 2013; ·
(b) denied the Applicant a further opportunity to put on more evidence and otherwise be heard ( e.g. transcript 30-31, 35-36); and in turn
(c) failed to have any, or any proper regard to the discretionary nature of the power that was conferred on it by Part 5 of the Act, namely to undertake a merits review of the decision under review.
3. It failed to comply with the obligations imposed by s 359AA(b) of the Act, which were preconditions to a lawful exercise of statutory power, in that, having given to the Applicant at the oral hearing of 29 November 2013 particulars of information which it regarded as being within the meaning of s 359AA(a) of the Act, then:
(a) failed to ensure that the Applicant understood why that information was relevant to the review, and the consequences of the information being relied on in affirming the decision under review, contrary to s 359AA(b)(i) of the Act; and having invited the applicant to comment on or respond to that information and having advised him that he could seek additional time to so comment or respond (which additional time was then indeed sought by the Applicant), then
(b) failed to adjourn the review so as to provide reasonable time to the Applicant to comment on or respond to the information, contrary to s 359AA(b)(iv) of the Act.
The Court notes the application for review of the Delegate’s Decision made to the Tribunal identifies the Student Visa as subclass 572, as do the grounds of the Amended Review Application. The Student Visa was, however, a subclass 573 visa, not a subclass 572 visa. Ultimately, nothing appears to turn on the difference.
The January 2014 Islam Affidavit is largely irrelevant, and notably failed to annex a copy of the Tribunal Reasons, but rather provided various academic documents. The Audio Affidavit and the Tribunal Transcript are self-explanatory as to their respective content. The August 2014 Islam Affidavit annexed copies of a Diploma of Business obtained by Mr Islam, having competently completed the required units at a different education institution on 14 June 2014, and also deposed that at the Tribunal Hearing he had sought more time to enable him to explain and present further evidence in support of his academic progress.
In Mr Islam’s 18 February 2015 submissions, the grounds of review were said to be reflected in the following three themes:
(a) In not considering the Applicant's submissions of 28 November 2013 (Court Book 189-195) and/or granting the Applicant a further opportunity to be heard and/or put on more evidence (eg. transcript 30-31, 35-36), when the Applicant expressly sought an adjournment of the hearing for that purpose, the Second Respondent denied the Applicant procedural fairness.
(b) The Second Respondent acted unreasonably in its exercise of statutory power, particularly the power expressly conferred by s 363(1)(b) of the Act to adjourn the hearing of, within the meaning of the principles enunciated by the High Court of Australia in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
(c) In purporting to apply s 359AA of the Act the Second Respondent breached the requirements of sub-section (b), particularly at paragraphs (i) and (iv) (transcript from p 29; Reasons for Decision at [14]ff) by, even if she properly explained the significance of the information she was alerting the Applicant to orally (which is denied), then declining to give him a reasonable opportunity to respond. That statutory breach, given the meaning and operation of s 359AA in conditioning an exercise of power by the Migration Review Tribunal, will amount to jurisdictional error in a given case through non-compliance in turn with s 359A. It did so in this case, with all the more significance in light of its effect in further denying the Applicant a proper opportunity to be heard.
Extension of time application
Although Mr Shakur’s Affidavit was not formally tendered, both parties referred to it in either written or oral submissions, and on that basis the Court will treat Mr Shakur’s Affidavit as having been tendered for the purposes of the extension of time application. Relevantly, Mr Shakur’s Affidavit says as follows:
3. At the conclusion of the hearing which I attended on 29 November 2013 with the Applicant, the presiding member of the Second Respondent told the applicant of her decision to affirm the decision under review. She also told the Applicant that a copy of her statement of decision and reasons would be sent to him later.
4. I have read the transcript of the hearing of 29 November 2013 which is annexed to the applicant's affidavit of August 2014. It accurately reflects what was said by the presiding member, by the Applicant, and by me during the hearing. In particular, the passage at pages of the transcript accurately conveys the matters the substance of which I have expressed at paragraph 3 above.
5. On the 19 December 2013 I received, by facsimile at my office, a copy of the Second Respondent's written statement of its decision under s 368 of the Migration Act 1958 (Cth); statement of decision and reasons to my office. Annexed hereto and marked "SS-1" is a copy of what I received.
6. However before receiving the facsimile to which I refer in paragraph 5 above, and sometime after the hearing on 29 November 2013 (to the best of my knowledge on or about 18 December 2013) I telephoned the Federal Court of Australia, Perth Registry to clarify whether I could proceed to file an application for judicial review without a statement of decision and reasons. I was told by the Registry Officer that I could not file a judicial review application without including a copy of the Tribunal's written statement of its decision.
7. Furthermore in the absence of any written reasons for the Second Respondent's decision on merits review it was extremely difficult for me to:
(a) to obtain my client's instructions in any meaningful way; and
(b) instruct counsel in a way that would have meaningfully equipped him to provide any advice to me; and in turn to
(c) with any confidence certify in the terms of the 'Lawyer's Certification' which is required pursuant to section 4861 of the Act before a judicial review application is filed.
8. In these factual circumstances it will be contended that it is necessary in the interests of the administration of justice for the applicant to be granted an extension of time for the filing of the judicial review application in this Court. I anticipate that counsel will amplify on this contention, by way of submission. .
Applicant’s submissions
In support of the application for an extension of time Mr Islam submitted that:
a)by virtue of s.477(3)(c) of the Migration Act, the legislature has deemed the "date of the migration decision" of the Tribunal to be the date of the Oral Decision, that is 29 November 2013 and 35 days from that date expired on 3 January 2014, therefore an extension of time pursuant to s.477(2) of the Migration Act of 10 days is required;
b)the Amended Judicial Review Application, and specifically the extension of time application, was supported by Mr Shakur’s Affidavit;
c)the testimony of Mr Shakur ought to be accepted and the subject of factual findings accordingly;
d)the circumstances present an entirely plausible account which illustrates not only how the operation of a deeming provision such as s.477(3)(c) of the Migration Act is capable of working injustice, but additionally how that injustice might be exacerbated in a given case by policies or guidelines which restrict or confine the circumstances in which a judicial review application will be accepted for filing;
e)there is nothing in the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) or the Migration Act that allude to an exception for circumstances when the Courts are closed, such as the Christmas and New Year period;
f)the length of the delay is short, all the more so when account is taken of the intervening Christmas and New Year period and that Mr Shakur did not receive the Tribunal Reasons until 19 December 2013;
g)no prejudice could fairly be asserted to arise to the Minister from a delay of that duration at that time of the calendar year, and there are authorities illustrating the granting of extensions of time of periods significantly longer than 10 days where it is appropriate to do so in the interests of justice; and
h)the grounds of judicial review are of considerable merit.
Minister’s submissions
The Minister submitted that:
a)pursuant to s.477(1) of the Migration Act Mr Islam was required to make his application for review of the Oral Decision within 35 days of the date of the Oral Decision;
b)as the Oral Decision was made on 29 November 2013, and the time for making an application to the Court under s.476 of the Migration Act expired on 3 January 2014;
c)Mr Islam’s solicitor has deposed that he received a copy of the Tribunal Reasons on 19 December 2013;
d)despite receiving the Tribunal Reasons on 19 December 2013, some 15 days before the due date for filing the application to review that decision, the application was not filed until 13 January 2014; and
e)there is no explanation as to why the application was not filed until 13 January 2014. In the absence of any such explanation for the delay the Court should not grant any extension of time under s.477(2) of the Migration Act.
Legislative provisions
Section 477 of the Migration Act is as follows:
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or
(b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or
(c) in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or
(d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.
(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).
(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
Sections 368 and 368D of the Migration Act read as follows:
(1) Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:
(a) sets out the decision of the Tribunal on the review;
(b) sets out the reasons for the decision;
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based…
368D Notifying parties when Tribunal gives an oral decision
If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 368(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made.
Rule 44.05(2) of the FCC Rules states:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought—the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Section 486I of the Migration Act (referred to in Mr Shakur’s Affidavit) states:
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
Legal principles
The non-exhaustive list of factors the Court will generally take into account in determining whether to grant an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315, FCR at 348-349 per Wilcox J, and include:
a)the length or extent of delay;
b)the reason for the delay;
c)any prejudice to the opposing party; and
d)the merits of the application.
The non-exhaustive list of factors is applicable to this Court’s consideration of the extension of time application under the Migration Act: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ (“SZTRY”); MZABP v Minister for Immigration & Border Protection & Ors [2015] FCA 1391; (2015) 242 FCR 585 at [41]-[43] per Mortimer J.
In considering the law with respect to delay in making an application, and in particular a judicial review application which seeks prerogative relief of the kind sought under the Migration Act, the Court must have regard to the judgments of the High Court in Re Commonwealth; Ex parte Marks[2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 70 ALJR 866; (1996) 139 ALR 1; [1996] Aust Torts Reports 81-402 (“Brisbane South Regional Health Authority”). The relevant passages in those judgments of the High Court can, for present purposes, be summarised as follows:
a)a limitation period is the general rule, and an extension provision is the exception to it: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
b)the limitation period represents Parliament’s judgment as to how the welfare of society is best served by causes of action being litigated within a limitation period: Brisbane South Regional Health Authority CLR at 553 per McHugh J;
c)where a significant period of time has elapsed, and in all but very exceptional cases, the limitation period should be “rigidly applied”: Marks at [16] per McHugh J; and
d)the effect of the limitation period is such that it “may often result in a good cause of action being defeated”: Brisbane South Regional Health Authority CLR at 553 per McHugh J.
Unless the Court dispenses with compliance with r.44.05(2)(c) of the FCC Rules pursuant to r.1.06 of the FCC Rules, the applicant “must”, that is, is mandatorily required to, provide an affidavit as to the reason for the delay and why it is necessary and in the interests of justice to grant an extension of time: Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386; (1997) 151 ALR 717; (1997) 45 ALD 104 (“Wang”), FCR at 391 per Merkel J; Sandan v Minister for Immigration & Border Protection & Anor [2015] FCCA 1166; (2015) 296 FLR 48 (“Sandan”) at [24] and [30] per Judge Lucev. There is, however, no requirement in r.44.05(2) of the FCC Rules that the affidavit be filed contemporaneously with the Judicial Review Application and therefore the Court is of the view that Mr Islam may rely upon Mr Shakur’s Affidavit filed more than 7 months after the Judicial Review Application. The Court is therefore satisfied that r.44.05(2)(c) of the FCC Rules is satisfied.
Mr Islam also did not provide, in accordance with r.44.05(2)(a) of the FCC Rules, an affidavit including a copy of the Oral Decision or the Tribunal’s Reasons (a copy of a confirmation of the Oral Decision having been emailed to Mr Islam on 29 November 2013). The Minister provided a copy of the confirmation of the Oral Decision emailed to Mr Islam on 29 November 2013 and the Tribunal Reasons in the Court Book: CB 186 and 199-212. Mr Shakur’s Affidavit contained a letter from the Tribunal stating it had provided a copy of the written advice of the Oral Decision to Mr Islam. In circumstances where r.44.05 of the FCC Rules uses the mandatory “must” in relation to the various requirements the Court does not have a discretion to waive this requirement: Wang, CLR at 391 per Merkel J; Sandan at [12] per Judge Lucev, other than under r.1.06 of the FCC Rules which enables the Court to dispense with compliance with the FCC Rules, if it is necessary in the interests of justice to do so. In circumstances where both the copy of the confirmation of the Oral Decision and the Tribunal Reasons are in the CB, and where both parties proceeded on the basis that those documents were before the Court for the purposes of the hearing, and where it is necessary for those documents to be before the Court for the Court to carry out its judicial review function (whether determining an extension of time or whether determining the Judicial Review Application proper), the Court considers that it is in the interests of justice to waive the requirements of r.44.05(2)(a) of the FCC Rules in this case. The Court doing so ought not be considered to be an invitation, however, for applicants to fail to comply with the FCC Rules in the future.
Extent of delay
Under s.477(3)(c) of the Migration Act the “migration decision” is taken to have been made on the date of the Oral Decision, and time will commence from that date. In Raj v Minister for Immigration & Multicultural Affairs [2000] FCA 74; (2000) 97 FCR 346 at [27] per Lehane J the Federal Court confirmed that, notwithstanding the difficulty an applicant may face, time to bring a judicial review application must commence from the date of an oral decision:
27 There is, at best, an ambiguity about a matter which is of great importance to an applicant's rights. Its presence emphasises the importance of careful compliance by the Tribunal with the provisions of the legislation as to the ways in which it is to make known its decisions. The terms of the notification provisions prompt a further comment. As I have mentioned, s 368D requires the Tribunal, where it has given an oral decision, to "give" the applicant and the Secretary a copy of the s 368 statement within 14 days after the decision is made. But it is not immediately clear how that copy is to be "given". It is not one of the documents referred to in s 379A(3) (particularly - see s 379A(3)(c) - it is not a statement given under s 368B(6)) and therefore taken to be given when despatched by one of the methods specified in s 379A. It is possible - I have not made a detailed search and no argument was directed to this – that there is some other, more general, provision which would apply. It is clear at least (s 368B) that in the case of an oral decision time runs from the moment it is pronounced even though, at that stage, no statement of reasons will have been given. It is clear also that such a statement must be "given". It is less clear how that is to be done.
Mr Islam did not receive the Tribunal Reasons until 19 December 2013. The Tribunal Reasons were therefore provided 21 days after the Oral Decision. At the Tribunal Hearing the Tribunal indicated that Mr Islam would receive a “written statement of reasons within 14 days from today”: Tribunal Transcript, p.37 at [29]-[30]. This clearly did not happen, and therefore s.368D of the Migration Act was not complied with by the Tribunal. However, under ss.477(4) and (5) of the Migration Act, time still commences to run from the time of the Oral Decision notwithstanding any procedural defect or failure to comply. In Sochorova v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 817 at [7] and [11] per Kiefel J the Federal Court said:
7. It would appear to be implicit in these provisions that an applicant attending the hearing is also taken to be notified of the decision, as Lehane J observed in Raj v Minister for Immigration (2000) 97 FCR 346, 349[7]. If neither the applicant nor their representative was present, the Tribunal was obliged to notify the applicant of the decision by giving the statement referred to in s 368(1) within 14 days after the day on which it was handed down: (s 368B(6)), by one of the methods referred to in s 379A…
11. The effect of the applicant’s argument would be that a failure to follow the statutory procedures relating to the pronouncement of oral decisions had the result that there was no operative decision. That would not seem to me to be correct. As the majority pointed out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388 [91], an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. It will depend upon a consideration of the Act in question. In the present case the Migration Act did not expressly or impliedly state that such a consequence would follow. It may be that there are other consequences. A ground for judicial review might be created by a failure to follow a procedure or because, in that process, an applicant was denied procedural fairness.
The failure of the Tribunal to provide the Tribunal Reasons within 14 days does not therefore alter or vary the time limitation under s.477(1) of the Migration Act, and as Mr Islam was on notice of the Oral Decision, s.477(1) and (3) of the Migration Act dictated that he had 35 days to file the Judicial Review Application.
The extent of the delay is 10 days. Although a delay, it is not one which is significant, and not one which weighs, other than slightly, against the Court exercising its discretion to extend time under s.477(2) of the Migration Act.
Reason for the delay
The reasons for the delay given by Mr Islam are set out in Mr Shakur’s Affidavit, and in summary are as follows:
a)Mr Shakur, Mr Islam’s lawyer, did not receive the Tribunal Reasons until 19 December 2013, some 21 days after the Oral Decision;
b)he was told by the Perth Registry of the Court that he could not proceed to file a judicial review application without including a copy of the Tribunal’s written statement of its decision;
c)in the circumstances, it was difficult for Mr Shakur to instruct Counsel in a way that would have meaningfully equipped Counsel to provide any advice without the Tribunal Reasons; and
d)without the Tribunal Reasons Mr Shakur did not feel that he could confidently certify in terms of the lawyer’s certification required pursuant to s.486I of the Migration Act when a judicial review application is filed.
The Court raised at hearing the issue of the Oral Decision not being provided to Mr Islam until 19 December 2013. When one considers that 19 December 2013 was a Friday, Mr Islam was essentially given three working days to file the document prior to the Christmas close down from Wednesday 25 December 2013 until the Registry re-opened on Monday 30 December 2013 while again closing on Wednesday 1 January 2014 for the New Years Day Public Holiday. Mr Islam thus had 7 working days to file his Judicial Review Application prior to the lapse of the 35 day time limit. This does not take into account that the Court has an electronic filing system whereby parties may lodge documents for filing online, and the document will be logged as being filed at that time unless the Registry finds it is non-compliant, and that Mr Islam could, therefore, have lodged the Judicial Review Application at any time between 19 December 2013 and 3 January 2014. The fact that Mr Islam could have had Mr Shakur file the Judicial Review Application electronically fails, however, to take account of a number of other factors, and in particular:
a)the Tribunal Reasons were themselves provided 7 days late, that is 7 days outside of the 14 day time limit for providing the Tribunal Reasons;
b)they were provided on Friday 19 December 2013, which was the final day of the Western Australian legal year (a matter of common knowledge) and therefore able to be considered by the Court: Evidence Act 1995 (Cth), s.144(1)(a); and
c)the time of the year would have made it very difficult to retain and obtain advice from Counsel.
The 7 day delay by the Tribunal in the provision of the Tribunal Reasons is significant, because if one assumes that the intent behind s.477(1) of the Migration Act is to give an applicant up to 35 days to file an application, that being a reasonable time to consider and formulate an application (including the obtaining of advice if necessary), or a period of 21 days if an oral decision is made by the Tribunal and the reasons for that oral decision are provided within 14 days, then Mr Islam’s period in which to consider his options and take advice has been reduced by one third by reason of the Tribunal’s delay in providing the Tribunal Reasons. Furthermore, if account is taken of that 7 day delay by the Tribunal, that delay constitutes a large part of Mr Islam’s 10 day delay in filing the Judicial Review Application.
As will be apparent, the Court appreciates the difficulties that arise in the circumstances where a lawyer is without sufficient information in order to inform a client appropriately and is under a statutory limitation period. Mr Shakur was, however present at the Tribunal Hearing when the Oral Decision was made, and having read the Tribunal Transcript it is apparent from the Tribunal Reasons that the Oral Decision canvassed each of the matters referred to and made during the Tribunal Hearing. Were Mr Shakur of the view that the refusal of the adjournment was unreasonable, the Tribunal gave clear reasons at the Tribunal Hearing for doing so which Mr Shakur could relay to Counsel to obtain a preliminary view. While there is some difficulty in proceeding without a written statement of reasons, it was not beyond Mr Shakur to provide preliminary advice and views to Mr Islam, to obtain instructions, and to brief Counsel on a potential Judicial Review Application prior to receipt of the Tribunal Reasons.
In the Court’s view, however, as a matter of practical reality, the delay in providing the Tribunal Reasons, and the provisions of them on 19 December 2013, created significant practical difficulties for Mr Shakur as Mr Islam’s lawyer in dealing with the application, obtaining instructions, and, more particularly, obtaining the benefit of Counsel’s advice. These are factors which in the Court’s view weigh quite significantly in favour of an extension of time.
The evidence that Mr Shakur called the Registry and was advised he could not lodge a Judicial Review Application without a copy of the “Tribunal’s written statement of its decision” was unchallenged. The Court therefore accepts this and must give some weight to this fact in favour of Mr Islam being granted an extension of time. The Court notes that the advice from the Perth Registry that Mr Shakur “could not file a judicial review application without including a copy of the Tribunal’s written statement of its decision” is somewhat ambiguous, and it is not apparent whether it refers to the statement sent to Mr Islam (at CB 186) advising him of the decision of the Tribunal, or the Tribunal Reasons provided on 19 December 2013. The Court notes, however, that r.44.05(2)(a) of the Migration Regulations provides not just for a copy of the decision of the Tribunal to be provided but also for any statement of reasons for the decision to be provided in the affidavit in support. On that basis, Mr Shakur would plainly have been under the apprehension that he was required to wait for the Tribunal Reasons before filing the Judicial Review Application.
In relation to s.486I of the Migration Act the Full Court of the Federal Court has stated that “[i]n our view s 486I is irrelevant to the operation of s 477”: Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [37] per Moore, Bennett and Buchanan JJ. At first instance before this Court it had been argued that s.486I of the Migration Act was inconsistent with s.477 of the Migration Act, and in Nguyen v Minister for Immigration & Anor [2006] FMCA 1495; (2006) 204 FLR 138 (“Nguyen-FMC”) at [24], [26] and [30] per Smith FM the Federal Magistrates Court observed that:
24…I do not consider that there is any conflict between the language or concerns of the two sections. Each section addresses separate aspects of judicial review litigation, and reveals a policy to address different concerns
26…Administrative law for many decades has been familiar with 28 day time limits, notably under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and the Administrative Appeals Tribunal Act 1975 (Cth). I was not referred to any evidence suggesting that legal practitioners have found it impossible ethically to advise their clients on reasonable prospects of success in bringing applications within that period.
30…The evidence of the applicant’s solicitor established that, in fact, she undoubtedly would have been able to give a certificate in terms of s.486I at that time. The evidence does not, therefore, establish that it was impossible to comply with both ss.477 and 486I in the present case.
In Nguyen-FMC at [29] per Smith FM the Federal Magistrates Court held that a solicitor awaiting advice from Counsel was not a reasonable explanation for delay. Nguyen-FMC is however distinguishable on its facts, particularly in relation to the facts in this case where the advice sought from Counsel was being sought during the Christmas-New Year period by reason of the late receipt of the Tribunal Reasons, albeit that some preliminary advice might have been sought earlier for reasons set out at [36] above.
In conclusion, the Court considers that the reasons for the delay, and in particular the late provision of the Tribunal Reasons and the time of the year (notwithstanding the possibility of obtaining preliminary advice), the latter practically precluding the early obtaining of final advice from Counsel, together with the advice from the Perth Registry that the Judicial Review Application could not be filed without what became the Tribunal Reasons, are sufficient to explain and provide tenable reasons for the 10 day delay in filing the Judicial Review Application, and as such, weigh in favour of an extension of time.
Prejudice
It was not contended that there was any significant prejudice to the Minister insofar as the 10 day delay was concerned. It is trite to observe that the absence of prejudice to a respondent is not itself sufficient to grant an extension of time: SZTRY at [6] per Flick, Griffiths and Perry JJ.
Merits and the interests of justice
It is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 at [48] and [102] per Wigney J (“SZTES”). The Court need only examine the grounds of review in the Proposed Judicial Review Application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”) at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of proof in these proceedings to establish jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ.
In the Court’s view the grounds of review are sufficiently arguable to warrant an extension of time. In particular, the question of whether the Tribunal denied procedural fairness to Mr Islam, or acted unreasonably, in denying an adjournment of the Tribunal Hearing is a matter, which in the circumstances of this case, can be said to be arguable. The question of the provision of particular of information, and what was provided, and whether an adjournment was required in relation thereto, also gives rise to an arguable case in relation to the issue of the adjournment, but not perhaps, so much, with respect to the nature and explanation of the particulars of information, but the Court can see that there may be a sufficiently arguable case in that regard, to warrant an extension of time. In the Court’s view, the merits of the arguability of the extension of time application weigh in favour of an extension of time.
Conclusion – extension of time
In circumstances where the delay is comparatively short, there are tenable reasons explaining the delay (although not in all respects), no prejudice to the Minister, and where the merits of the grounds of review are arguable or sufficiently arguable in the sense required upon consideration of an extension of time application, the Court is persuaded that the discretion under s.477(2) of the Migration Act ought to be exercised in favour of Mr Islam to extend time for filing of the Originating Application to the time of actual filing.
Amended Judicial Review Application
The requirement for jurisdictional error
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
Unreasonableness in the decision-making process may also give rise to jurisdictional error: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [18] per French CJ and at [48] per Hayne, Kiefel and Bell JJ.
Mr Islam bears the onus of proving jurisdictional error by the Tribunal: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J; SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [11] per Flick J (from which an application for special leave to appeal to the High Court was refused: SZOPX v Minister for Immigration & Citizenship [2011] HCASL 161).
Legislative provisions
The Delegate’s Decision was to cancel Mr Islam’s Student Visa pursuant to s.116 of the Migration Act because Mr Islam had not complied with a condition of the Student Visa: Migration Act, s.116(1)(b) The non-compliance was a breach of Condition 8202, Condition 8202 being an applicable condition by virtue of cl.573.611 of Sch.2 to the Migration Regulations. In particular, Mr Islam was in breach of the following subsection of Condition 8202:
(3) A holder meets the requirements of this subclause if neither of the following applies:
(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i) section 19 of the Education Services for Overseas Students Act 2000; and
(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
The Institute sent the Section 20 Notice to Mr Islam which is certification appropriate to establish a breach of Condition 8202: Maan v Minister for Immigration & Citizenship & Anor [2009] FCAFC 150; (2009) 179 FCR 581; (2009) 112 ALD 25. Pursuant to s.116(1)(g) of the Migration Act the Minister may cancel the Student Visa if a prescribed ground for cancelling the Student Visa applies. The prescribed grounds for cancelling a visa are located in reg.2.43 of the Migration Regulations, however an amendment to reg.2.43 of the Migration Regulations was effected by the Migration Legislation Amendment Regulations (No 1) 2013 (Cth) (“Amendment”). The consequence of the Amendment caused Mr Islam to abandon reliance on what was now a repealed part of the Migration Regulations and not applicable to Mr Islam’s circumstances. The Court notes this as Mr Islam referred to “exceptional circumstances” during his Tribunal Hearing, as did his lawyer, however there was no longer a requirement for the Tribunal to consider any “exceptional circumstances”.
The Tribunal did not ask Mr Islam a question, rather it put information to Mr Islam and gave him an opportunity to respond to it, that being what was required under s.359AA of the Migration Act. When Mr Islam said he was confused, the Tribunal again repeated the essence of the information previously put to Mr Islam and invited him to comment and respond.
When Mr Islam did respond it is clear he was aware of the substance of what was put to him. The Tribunal summarised his response at CB 203 at [17] of the Tribunal Reasons:
• He tried to contact PIBT to defer his exam but they declined him, saying that he could only apply for a deferred exam within 3 days of the exam;
• Commencing from 25 September 2012 he sent PIBT emails seeking an appointment but he was unable to get an appointment until 18 October 2012, more than 3 weeks later;
• Unfortunately, on 18 October 2012 he had to go to hospital with the help of his friends. If he had been able to go to the appointment with his medical certificates, there was a big chance that Alison Hirst would understand his situation and why he had been unable to sit his exams. She would not have reported him and she would have given him another chance.
The Tribunal ensured, as far as reasonably practicable, the applicant understood what was being put to him and that it was important to the Tribunal finding it should cancel his Student Visa. It detailed the information twice, it redirected the applicant away from what it considered irrelevant, and further clarified what was in issue and invited him to respond again: Tribunal Transcript, p.32-33. It is not for the Tribunal to tell an applicant and endeavour to assist an applicant to better respond or put their case: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gleeson CJ. The Tribunal had satisfied the obligation of s.359AA(1)(b)(i) of the Migration Act and Mr Islam was sufficiently and adequately on notice of the issues that were critical to the exercise of the discretion to cancel his Student Visa, to which he was invited to respond and comment.
The Court has already addressed the arguments raised in respect of the s.359AA(1)(b)(iv) of the Migration Act and the failure to provide a sufficient opportunity to comment on the information put to Mr Islam by the Tribunal. To the extent that it was argued the five minute adjournment was unreasonable, this is plainly inconsistent with what was requested by Mr Shakur at the Tribunal Hearing. It was Mr Shakur who requested five minutes to confer and take instructions, not the Tribunal, and in circumstances where Mr Shakur ought to have been aware that under s.359AA(1)(b)(iv) of the Migration Act that a request for additional time is not granted as of right he should have considered this before seeking just five minutes. When the hearing reconvened Mr Islam did not appear to indicate he was not ready to proceed, further upon the Tribunal refusing to grant an extension of time Mr Islam and Mr Shakur made no further request for an adjournment to further confer: Tribunal Transcript, p.30-31. Therefore, nothing unreasonable arises out of the five-minute adjournment.
For the above reasons, the Court is not satisfied that the Tribunal fell into jurisdictional error when putting information to Mr Islam under s.359AA of the Migration Act.
Conclusions and orders
The Court has concluded that the Tribunal Reasons are not affected by jurisdictional error. The application should therefore be dismissed.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 30 May 2019
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