Kanani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 945
•23 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kanani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 945
File number: SYG 176 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 23 September 2024 Catchwords: MIGRATION— Judicial Review – student visa (Subclass 500) – citizen of India – matter listed for extension of time hearing—dismissal of adjournment application – dismissal of extension of time application Legislation:
Migration Act 1958 (Cth) ss 357A, 359(1), 359(2), 359A, 360, 360A, 368(2), 477(1), 477(2)
Migration Regulations1994 (Cth), cl 500.212(a)
Cases cited:
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZRVA v Minister for Immigration [2019] FCA 630
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 9 September 2024 Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Shultz, Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 176 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRATIK BHIMJIBHAI KANANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
23 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The application for an extension of time made on 24 January 2020 pursuant to s 477(2) of the Migration Act 1958 (Cth) is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
By application filed on 24 January 2020, the applicant seeks an order under s 477(2) of the Migration Act 1958 (Cth) (‘the Act’) to extend time for him to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 December 2019. The Tribunal affirmed the decision of a delegate of the Minister (the Minister) refusing to grant the applicant a Student (Temporary) (Class TU) visa.
BACKGROUND
The applicant is a 36-year-old citizen of India. He first arrived in Australia in April 2014 as the holder of a Student (Subclass 573) visa.
On 20 September 2017, the applicant applied for a Student (Subclass 500) visa, the application being the subject of these proceedings.
On 15 December 2017, the delegate refused to grant the applicant the visa. The delegate found the applicant was using the student visa program to prolong his stay in Australia and was not satisfied that he intended to genuinely stay temporarily in Australia. Subsequently, the delegate concluded he did not meet the requirements of the visa.
On 3 January 2018, the applicant applied to the Tribunal to review the delegate’s decision.
On 1 October 2019, the Tribunal invited the applicant to provide information pursuant to s 359(2) of the Act. The period for compliance with that request was extended and the applicant provided a complete questionnaire to the Tribunal. The applicant provided further evidence on 11 November 2019 and appeared before the Tribunal on 11 December 2019.
On 19 December 2019, the Tribunal affirmed the decision not to grant the applicant the visa.
THE TRIBUNAL’S DECISION
The issue identified by the Tribunal on review related to whether the applicant intended to genuinely stay in Australia temporarily.
The Tribunal identified that, in determining the relevant issue, it must have regard to the Ministerial Direction No.69 titled ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ made under s 499 of the Act. This direction provided that the Tribunal must have regard to (as a guide, not a checklist):
·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
The Tribunal stated that the applicant was aware at the hearing that the relevant issue for determination was whether he was a genuine temporary entrant.
The Tribunal summarised the applicant’s background and oral evidence. It noted that the applicant arrived in Australia in 2014 as the holder of a student visa with the intention of studying a Bachelor of Accounting. He enrolled in (but did not complete) a series of courses, including three Diploma of Business courses. The Tribunal remarked that the applicant did not elaborate on why he did not complete these courses. It noted that the applicant was enrolled in a Diploma of Business (for the fourth time) and expected to complete that course in March 2020. The Tribunal stated that the applicant had a future enrolment in an Advanced Diploma of Business that was scheduled to commence in April 2020 and be completed in April 2021.
The Tribunal noted that the applicant said he intends to return to India and “start a business” and “support my current dad’s business” but that he did not further elaborate on these assertions. It noted the applicant wished to study in Australia because the “value of Australian education is better.” It noted that the applicant was unresponsive when asked about his expected income in India. The Tribunal also stated that the applicant had no assets in India but acknowledged that he had family in India. It noted that the applicant had been working in Australia, with the last period of work being three months prior and that the applicant was paid about $800.00 weekly.
At the hearing, the Tribunal brought to the applicant’s attention a document titled “statement of purpose,” dated 22 October 2019. The applicant stated that his lawyer prepared the document and that it was correct. This document outlined that the applicant suffered from depression. The Tribunal sought further details about this, and the applicant stated that “everything is in the statement of purpose”.
The Tribunal summarised the information available to it regarding the applicant’s depression. The applicant suffered from depression in May 2015 and January 2018. The applicant saw a psychologist in 2015 twice but the applicant could not identify if this was the same psychologist, Mr Sutton, that prepared a report dated 4 May 2015 that was available to the Tribunal. The applicant had not taken any medication for his condition and had not sought treatment in relation to the depression. The Tribunal put to the applicant that Mr Sutton’s report does not indicate that he could not study. It noted that the applicant was unresponsive to this.
The Tribunal stated that it put to the applicant that he had not completed any course of study in five and a half years and the most recently commenced course was 7 October 2019. It noted that the applicant was unresponsive to these observations. When asked why he had not studied between May 2015 and January 2018, the applicant said that “the College shut down.”
The Tribunal then quoted the document titled “statement of purpose” regarding the applicant’s depression and personal circumstances and its effect on his studies. The Tribunal noted that the applicant’s oral evidence regarding this subject is broadly consistent with the document save that the document refers to an additional bout of depression in July 2019. Notwithstanding, the Tribunal gave the applicant’s assertions of depression little weight because the applicant did not seek any treatment for depression in 2015, did not mention any depression occurring in 2019 nor did the written document refer to any treatment during this period and, whilst he sought some treatment in 2015, he did not obtain any medication. The Tribunal further noted that the psychologist report only related to a period in 2015 and does not conclude that the applicant was unable to study.
Later in the decision, the Tribunal found that the assertions of depression were vague and not pressed at the hearing with any vigour.
The Tribunal found that the applicant’s evidence regarding the utility of studying his proposed course was consistent with his written documentation. Notwithstanding, the Tribunal found it was vague and insubstantial and gave it little weight. Later in the decision, the Tribunal found that the applicant’s evidence regarding the value of the course to his future and his future renumeration was vague and unconvincing and gave it little weight. The Tribunal was not satisfied the proposed study would provide the applicant with significant benefits, considering the costs of the study and that the applicant has failed to demonstrate that the study would provide him significant value in the future.
The Tribunal was satisfied that the applicant had demonstrated ties to act as an incentive to return to India, however found that these ties were not a significant incentive for him to return. The Tribunal particularly noted the time the applicant had spent in Australia and the intended period of future stay.
The Tribunal then considered the applicant’s history in Australia and future plans, noting that the applicant arrived in Australia in April 2014 as the holder of a student visa, that he commenced several courses but did not complete any, and that the applicant’s proposed study would extend his stay in Australia until at least March 2020.
The Tribunal found that the length of the proposed additional stay created serious concerns that the applicant’s study was for the purposes of staying in Australia and that, although plans can change, the applicant’s history and plans are not the conduct of a genuine temporary student and suggest that he intends to extend his stay in Australia by utilising the student visa program.
The Tribunal gave the applicant’s written submissions regarding the genuine temporary entrant criteria little weight.
For those reasons, the Tribunal was not satisfied that the applicant genuinely intended to stay temporarily in Australia as a student. The Tribunal then gave further reasons and observations that supported this finding. Those included the disparity in economic circumstances between Australia and India and the applicant’s inability to demonstrate substantial ties or personal assets in India. Since arriving in Australia in April 2014, the applicant had not travelled outside Australia which indicated that he did not appear to have strong personal ties to India with minimal incentive to return.
Further, the Tribunal had concerns that the applicant’s intention to stay in Australia was motivated by factors other than study. It noted that the proposed study did not provide any clear and substantial improvements which outweighed the time and cost of the course, and that the applicant did not satisfy the Tribunal of the value of the study to his future. It noted that the applicant had been in Australia for a length of time, had previously been granted a student visa which enabled his study and that he did not take advantage of this opportunity. They also noted that he lodged the visa application before his previous visa expired, indicating that he commenced studying to secure a further stay in Australia rather than due to a genuine interest in the area of study. The Tribunal considered that the applicant appeared to be using the student visa program as a means of maintaining ongoing residence in Australia and did not have a genuine intention to stay temporarily.
For all these reasons, the Tribunal was not satisfied the applicant intended to genuinely stay in Australia temporarily, that he therefore did not meet cl 500.212(a) of the Migration Regulations 1994 (the ‘Regulations’) and that the decision under review must be affirmed.
APPLICATION TO THIS COURT
The application which commenced proceedings in this Court contained one ground for the extension of time and two grounds in respect of the substantive application for judicial review.
The applicant also filed an affidavit, affirmed on 24 January 2020, which annexes a copy of the Tribunal’s decision record.
On 7 February 2020, the Minister filed a Response pleading that the Court does not have jurisdiction to hear the application because it was filed out of time, that the application for judicial review failed to establish any jurisdictional error, and for costs.
The matter was listed for a first court date before a Judge of the Court on 13 March 2020. The applicant appeared in person on that date as did a representative for the Minister. The Court made orders by consent for, inter alia:
·The filing of a court book by the Minister by 20 March 2020;
·The filing of any amended application by the applicant by 14 April 2020;
·The filing of evidence of the Tribunal hearing by way of transcript by the applicant;
·The filing of affidavit evidence by the applicant by 14 April 2020;
·The filing of written submissions and authorities by the applicant by 22 May 2020; and
·The filing of written submissions and authorities by the Minister by 29 May 2020.
The applicant did not file any amended application, a transcript, further evidence or submissions. On 17 March 2020, the Minister filed the Court Book, and on 29 May 2020, the Minister filed written submissions.
At a call over before a Registrar of the Court on 2 April 2024, at which the applicant and representative for the Minister appeared by telephone, the Court ordered that, inter alia:
·the applicant file and serve written submissions, any amended application with proper particulars of the grounds and any evidence on which he seeks to rely by 16 April 2024;
·the Minister file any further written submissions and evidence on which they seek to rely by 23 April 2024; and
·the Minister file, at least 7 days prior to the hearing, an affidavit of service of the court book, written submissions and any additional evidence filed.
The applicant has not filed any amended application or written submissions and no further submissions or evidence were filed by the Minister.
On 13 August 2024, the parties were notified that the matter was listed for final hearing on 9 September 2024 at 10:00am in person at the Parramatta Registry. On 23 August 2024, the parties were notified that the matter was in fact listed for an extension of time hearing, not a final hearing, on 9 September 2024.
The parties appeared before the Court at the hearing on 9 September 2024. The applicant appeared in person. Ms Schultz, solicitor, appeared on behalf of the Minister. As arranged by the Court, the applicant was assisted by an interpreter in the English and Hindi languages.
The Court Book was tendered by the Minister at the hearing and marked exhibit CB.
The Affidavit filed by the applicant in support of the application for extension of time merely annexed the copy of the Tribunal’s decision and notification letter. As the decision record and notification letter were included in the Court Book, the Affidavit was not read.
Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the matters that would normally be considered by the Court, which the Court noted were not exhaustive, when determining whether time should be extended to enable him to pursue his substantive application for judicial review.
During the proceedings, when invited to make submissions regarding the merits of the grounds in his judicial review application, the applicant said he was under the impression that the hearing was in relation to an extension of time and not his judicial review application. The Court confirmed that the hearing was only in relation to the extension of time application which, in part, includes consideration of whether the grounds of judicial review have any prospect of success. The applicant said he was not a legal person, was not ready to make submissions on the grounds of judicial review and needed a lawyer to represent him.
When asked if he was seeking an adjournment of the proceedings on the basis that he wished to seek legal representation, the applicant confirmed this was so.
The application for an adjournment was opposed by the Minister on the basis that the applicant filed his application on 24 January 2020, meaning the matter had been before the Court for over four years. It was further submitted that the matter was listed for hearing on 13 August 2024, meaning the applicant has had three weeks’ notice of the proceedings. It was submitted that the applicant has had sufficient time to obtain legal representation. Submissions were also made that there is no right to legal representation in this Court.
For reasons that follow, which were explained to the applicant at the hearing, the Court decided not to adjourn the proceedings and made an order dismissing the application for adjournment.
Prior to delivering its ex-tempore reasons for dismissing the adjournment application, the Court explained to the applicant that it was mindful he was unrepresented and that it would also carefully consider the material before it, including any matters raised by him at the hearing, and would remain alert to the possibility of error in the Tribunal’s decision or its procedures.
The Court also informed the applicant that the Minister, as a model litigant, would normally bring to the attention of the Court any material legal errors in the Tribunal’s decision.
Consideration of the adjournment application
The Court has considered the submissions made by the applicant in support of the adjournment application and the submissions made by the Minister opposing the adjournment.
The Court notes that on 13 August 2024, the applicant was notified by email that the matter had been listed for final hearing on 9 September 2024. The Court acknowledges that a further email was sent to the applicant clarifying that the matter was listed for an extension of time hearing and not a final hearing. The Court considers, however, that the applicant has been on notice, since the 2 April 2024, by orders made of a Registrar of this Court, that this matter would be listed for a hearing before a judge at a date to be advised. Since the originating application for judicial review, filed on 24 January 2020, no amended application, submissions or further evidence has been filed by the applicant or anyone acting on behalf of the applicant.
The Court accepts, as submitted by the Minister, that the matter has been on foot for over four years and that the applicant has had ample time to obtain legal representation, including since 13 August 2024, when he was notified that his matter had been listed for hearing.
The Court also accepts that there is no entitlement to legal representation in judicial review proceedings before this Court: see SZRVA v Minister for Immigration [2019] FCA 630 at [45].
The Court further considers that if an adjournment was granted, this hearing, which was allocated to the applicant, could not be allocated to another applicant who would have also been waiting years for their matter to be heard.
For these reasons, the Court decided not to grant the adjournment sought by the applicant. The adjournment application was accordingly dismissed.
Having dismissed the application for adjournment, the Court proceeds to consider the extension of time application.
Consideration of the Extension of time application
The applicant did not commence proceedings in this Court within the 35-day period prescribed by s 477(1) of the Act.
Under s 477(2) of the Act the Court has the power to extend the 35-day limit if:
(a)the applicant has requested the extension of time in writing and provided reasons for why it is necessary in the interest of the administration of justice for time to be extended; and
(b)the Court is satisfied that it is necessary in the interests of the administration of justice for time to be extended.
The applicant has sought an order (in writing) that the time for making the application be extended under s 477(2) of the Act. He provided the following ground (without alternation) in support of his application for extension of time:
The tribunal has sent the notification to the client’s registered migration agent and he has failed to provide a copy of the tribunal decision in a reasonable time to the application [sic].
At the hearing, the Court explained to the applicant that the circumstances, which it noted were non-exhaustive, when considering whether to grant an extension of time, generally included: the length of the delay; the explanation for the delay; any prejudice to the Minister; and whether the substantive grounds of the judicial review application have any merit: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12].
In considering whether the grounds of the judicial review application have any merit, the Court need only do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. As explained to the applicant at the hearing, the Court need only be satisfied that grounds of his judicial review application have some prospect of success or raise a sufficiently arguable ground of jurisdictional error on the part of the Tribunal.
The applicant was invited to make oral submissions in relation to each of the circumstances and the Court has considered those submissions.
Length of the delay
The applicant commenced proceedings in this Court on 24 January 2020, being one day outside the prescribed period of 35 days from the date of the Tribunal’s decision. The Court considers a delay of one day to be minimal.
Explanation for the delay
The applicant contended that he commenced proceedings in this Court within the prescribed period of 35 days. He submitted that, based on the email sent to him on 20 December 2019, which attached the Tribunal’s decision, he calculated the 35th day to be 24 January 2019.
The Court asked the applicant about the explanation provided in his Court application in which he stated that the Migration Agent failed to provide him with a copy of the Tribunal’s decision within a reasonable time. The applicant said he received the Tribunal’s decision, which was forwarded to him by his Migration Agent, but he could not recall when he had received it. The applicant could not recall the length of time (after having received the decision from the Migration Agent) he had to file his judicial review application and said the Migration Agent must have told him about the last day (the 35th day) by which he must lodge the application. The applicant said he filed the application to this Court without assistance.
The Minister submitted that the application had to be filed within 35 days of the “date of the migration decision”: s 477(1) of the Act. The Minister relied on s 477(3)(b) of the Act which relevantly provides that the date of the migration decision, in the case of a decision made by the Tribunal in the exercise of its power under Part 5, is the date the decision is taken to have been made under s 368(2) of the Act.
The decision in issue, being a written decision made by the Tribunal under s 368(2) of the Act, was made on 19 December 2019. While notification of that decision did not occur until the following day, on 20 December 2019, this did not change the date of when the written decision is taken to have been made. Accordingly, the Court finds that the decision was taken to have been made on 19 December 2019, as such, the 35th day from that date was 23 January 2019.
The applicant did not press the ground which alleges that the Migration Agent failed to provide him with a copy of the decision record within a reasonable time. His oral submissions appeared to suggest that he had received the decision before the 35th day, but that it was the Migration Agent who advised him about the last day on which he could apply for judicial review. It is also possible that the applicant misunderstood the advice of the Migration Agent and/or the information contained in the notification letter explaining that an application for judicial review must be made within 35 days of the date of the Tribunal decision: (CB 171).
Whether the applicant relied on the incorrect advice of the Migration Agent or misunderstood the date from which to calculate the 35-day period, the Court considers both to be reasonable explanations for the one-day delay.
Prejudice to the Minister
The Court is mindful, as submitted by the Minister, that the mere absence of prejudice is not a sufficient basis to grant an extension of time: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349 per Wilcox J. Nevertheless, the Court considers that, other than costs, the Minister would not suffer any real prejudice if time were extended.
Merits of the proposed application
In determining whether an extension of time should be granted, the Court has considered, at a reasonably impressionistic level, whether the proposed grounds in the application for judicial review have any reasonable prospect of success.
The proposed grounds of review, as articulated (without alternation) in the judicial review application are:
1.The Administrative Appeals Tribunal has denied procedural fairness.
2.The Administrative Appeals Tribunal has made irrelevant considerations and has failed to make relevant consideration.
By ground one, the applicant asserts that the Tribunal had failed to afford him procedural fairness. No particulars were provided in the application in support of this ground. When invited at the hearing to explain why he thought the Tribunal’s decision or process was unfair, the applicant declined to make any comment, stating only that he was not prepared for a final hearing and does not know what to say.
The Court explained to the applicant that the proceedings were in relation to the extension of time application, which included consideration of whether his substantive application has any prospect of success and, if so found, the Court would extend time and a final hearing would be scheduled. The Court noted the applicant’s earlier statement indicating that he lodged the judicial review application himself and observed that he said (in that application) that he was denied procedural fairness by the Tribunal. The Court asked the applicant why he was aggrieved by the Tribunal’s decision and why he thought the Tribunal did not give him “a fair go”. The applicant again reiterated that he was not prepared for a final hearing.
In responding to questions asked by the Court, the applicant indicated that he read the Tribunal’s decision and reasons given for why it was not satisfied that he was a genuine temporary entrant as a student. He also confirmed that he attended a hearing, that he was asked questions at the hearing and that he was given an opportunity to respond to those questions. When asked if he had any concerns about the Tribunal’s process in that regard, the applicant again said he was not prepared for the hearing before the Court.
The Court informed the applicant it would give him a further opportunity to make oral submissions after the Minister presents their submissions.
The Minister submitted that the Tribunal’s decision was not affected by jurisdictional error nor was there an error in the Tribunal’s approach.
In respect of ground one, the Minister submitted that no particulars were provided by the applicant to make the ground meaningful and that in any event, the applicant was not entitled to common law procedural fairness and has not identified any breach of the Tribunal’s procedural fairness obligations: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [36].
Given the applicant was unrepresented, the Court has considered for itself whether the Tribunal’s decision or processes disclose any potential failure on the part of the Tribunal to afford the applicant procedural fairness.
In respect of this matter, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule and the Tribunal is obliged to comply with those requirements: s 357A of the Act. A failure to so comply may amount to a jurisdictional error.
Evidence before the Court indicates that, pursuant to s 359(2) of the Act, the applicant was invited to provide information in support of his application for review. In the invitation letter, the applicant was put on notice that one of the determinative issues in the review was whether he was a genuine applicant for entry and stay as a student (CB 99). The applicant sought an extension of time to provide the requested information and Tribunal granted the extension of time (CB 109). Within the prescribed period, as extended, the applicant provided information and supporting documentation, which relevantly included evidence of his enrolment and a detailed statement of purpose. It is evident from the Tribunal’s decision record that it had regard to that information, as required by s 359(1) of the Act.
In compliance with ss 360 and 360A of the Act, the Tribunal invited the applicant to appear before it at a hearing to give evidence and present arguments relating to the issues in the review (CB 153). The applicant attended the hearing, and the Tribunal’s decision record indicates that he was asked questions relevant to the assessment of whether he intends genuinely to stay in Australia temporarily. The applicant indicated to this Court that he was given an opportunity to answer the Tribunal’s questions, and there is nothing on the evidence before the Court which suggests that the hearing was not conducted in a fair manner, was not real and meaningful or that the applicant was unable to meaningfully participate in the hearing.
There was also no information that the Court could identify, which engaged the Tribunal’s obligations under s 359A of the Act.
The evidence before the Court does not disclose that the applicant had been denied procedural fairness by the Tribunal. For these reasons, the Court is not satisfied that ground one, on an impressionistic assessment, has a reasonable prospect of success.
By ground two, the applicant alleges that the Tribunal had regard to irrelevant considerations and failed to have regard to relevant considerations. When asked at the hearing what information or considerations the Tribunal did or did not have regard to, the applicant again said he was not prepared for the final hearing and did not bring a lawyer. The Court observed that the matter had been on foot for over four years and there was no indication that a lawyer had ever been on the record. The applicant made no comment.
The Minister submitted that the applicant has failed to provide any particulars and has not identified any relevant facts, information or considerations that the Tribunal allegedly failed to consider and that it is not apparent that the Tribunal had so failed. It was submitted that in the absence of further particulars, ground two fails to establish any arguable case for jurisdictional error.
The Court acknowledges that the applicant has not provided particulars in support of ground two. However, being mindful that the applicant was not represented, it is appropriate for the Court to consider the material before it to ascertain whether this ground has any reasonable prospect of being made out.
The issue before the Tribunal related to whether the applicant intends genuinely to stay in Australia temporarily as required by cl 500.212(a). A careful consideration of the material before the Court indicates that the Tribunal understood the task before it. It is evident from the decision record, parts of which are summarised above, that the Tribunal understood that it had to have regard to the factors in Direction No. 69, though it also appreciated that those factors should not be used as a checklist, but as a guide when considering the whole of the applicant’s circumstances. The decision record demonstrates that the Tribunal considered the claims and evidence relevant to the issue in the review, including the oral evidence given by the applicant at the hearing. The weight given to the evidence was entirely a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. The Court has been unable to identify any matters or evidence that the Tribunal was required to consider and had failed to so consider.
As whether the Tribunal had regard to an irrelevant consideration, there is no information or consideration in the Tribunal’s decision record that the Court has identified as being irrelevant to the issue that the Tribunal had to determine.
The evidence before the Court does not disclose that the Tribunal had regard to an irrelevant consideration or that it had failed to have regard to a relevant consideration as alleged by the applicant. For these reasons, the Court is not satisfied that ground two, on an impressionistic assessment, has a reasonable prospect of success.
The Court is not satisfied that ground one or ground two, considered at an impressionistic level, have any reasonable prospect of success should time be extended to enable the applicant to have the matter heard on a final basis.
CONCLUSION
The Court has concluded that the period of the delay was minimal, that the applicant’s explanation for the delay was reasonable and there is no real prejudice to the Minister. These factors weigh in favour of granting the extension of time. Against this, however, the Court considers that the proposed grounds raised in the judicial review application, assessed at an impressionistic level, have no reasonable prospect of success. This factor weighs heavily against granting the extension of time.
As the Court is not satisfied that either of the proposed grounds of review have merit, the Court is accordingly not satisfied that it is the interest of administrative justice to grant the applicant an extension of time to seek judicial review of the Tribunal’s decision.
For these reasons, the application for an extension of time is dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 23 September 2024
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