Patel v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 390
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 390
File number: PEG 122 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 12 May 2023 Catchwords: MIGRATION –Student visa – decision of the Administrative Appeals Tribunal – extension of time application – minimal delay – inadequate explanation – no prejudice – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 359, 359B, 359C, 360, 363A, 379A, 379G, 476 and 477
Migration Regulations 1994 (Cth), cll 500.211 and 500.212 in Schedule 2 and reg 4.17
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
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: 82 Date of hearing: 27 April 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 122 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ALI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) (as amended on 27 April 2023) be 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 KENDALL:
BACKGROUND
The applicant is a citizen of Pakistan (CB 3-5). He first arrived in Australia in June 2019 as the holder of a student visa to study a Certificate IV and Diploma of Business (with a view to studying towards a Bachelor of Business) (CB 174).
On 19 June 2021, the applicant applied for a Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) (CB 1-18). In that visa application, the applicant appointed an education agent from Globalasia Education and Consultants to receive correspondence on his behalf (the “authorised recipient”) (CB 6). The applicant also agreed to the Department of Home Affairs (the “Department”) communicating electronically and provided the Department with an email address for his authorised recipient (CB 6-7).
With his visa application, the applicant provided a number of supporting documents and materials, including financial documents, an “Offer Letter and Written Agreement” for Certificates III and IV in Commercial Cookery and a Diploma of Hospitality, an academic progress report and other academic records and a statement (CB 21-48). The applicant’s statement provided (without alteration) (CB 21):
After spending time in Australia I realize that i love cooking and got a job in a restaurant as a kitchen hand and now i am helping chef to prepare and cook. Cooking is my passion and I want to make this as my profession as well.
To fulfill this dream I need professional studies with work based training which I am already doing. I enrolled myself in certificate 3, certificate 4 and diploma in hospitality in Stanley college in Perth which is very reputable institute of our city.
it would be appreciated if you give me a chance to pursue my studies and get a chance to become a qualified professional Chef.
On 26 November 2021, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 59-62). The delegate found that the applicant did not satisfy the requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (CB 62).
On 17 December 2021, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 63-80).
Later that day (also on 17 December 2021), the Tribunal wrote to the applicant (via email, through his authorised recipient) asking him to confirm his mobile phone number (CB 85). An updated mobile phone number was provided in response (CB 88-89).
On 31 January 2022, the Tribunal invited the applicant (pursuant to s 359 of the Migration Act 1958 (Cth) (the “Act”) and through his authorised recipient) to provide information in relation to the requirements that he be enrolled in a registered course of study and that he be a genuine applicant for entry and stay as a student (CB 92-94). That letter relevantly provided (CB 94):
The written information requested in the Request for Student Visa Information form should be received by 14 February 2022. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 14 February 2022, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 14 February 2022 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
On 15 February 2022, the applicant filed submissions, a completed information questionnaire and supporting material with the Tribunal in response to that invitation (CB 95-167 & 186).
On 16 May 2022, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 170-183).
On 16 May 2022, the applicant was notified of the Tribunal’s decision via email (through his authorised recipient) (CB 168-169).
On 21 June 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. Unfortunately, that application was filed one day outside of the 35-day time limit specified in s 477 of the Act. In the circumstances, the applicant requires an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has concluded that an extension of time should not be granted.
CONSIDERATION
On 5 September 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 21 June 2022, a court book numbering 186 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 6 April 2023.
The applicant appeared before this Court (on 27 April 2023) without legal representation. His cousin attended the hearing with him to provide support.
After some brief communications with the applicant, it became apparent that he required the assistance of an interpreter. The applicant had not requested the assistance of an interpreter in his judicial review application but the Court was able to stand the matter down for approximately 20 minutes so that an interpreter in the Urdu language could attend via video link. The Court was satisfied that, with the assistance of the interpreter, the applicant was able to actively engage with the hearing process.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision. In this matter, the Tribunal’s decision is dated 16 May 2022. The date by which the applicant was required to file his application in this Court was 20 June 2022. Unfortunately, the applicant did not file his application until 21 June 2022. Hence, the delay here is one day.
The Court explained further that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing, detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application in circumstances where the Court considers that it is in the interests of the administration of justice to do so.
At the hearing before this Court, the Court explained to the applicant that he had not, in fact, made an application for an extension of time in writing as part of his judicial review application. However, immediately prior to the hearing, Ms Ellis (for the Minister) verbally consented to the applicant being allowed to amend his application for judicial review to also include making an application for an order extending time. In that regard, the Court notes that the parties also handed up to the Court a copy of the applicant’s judicial review application where the applicant had himself now “ticked” the appropriate box to indicate that he was also making an application for an extension of time.
On that basis, the Court made an order amending the application for judicial review to include the making of an application for an extension of time pursuant to s 477 of the Act.
Whilst the applicant did not provide (in writing) any “grounds” explaining why he believed that the extension of time should be granted, the Court allowed him to explain his reasons to the Court orally. The applicant’s concerns in this regard will be discussed further below.
Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in 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 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of an arguable case of error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391.
The Court invited the applicant to address each of the factors outlined above and to highlight anything else that he considered relevant to his request for an extension of time. The applicant’s responses are discussed in the consideration that follows.
Length of delay
It is well established that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are to be taken as the “general rule” and any extension of time is therefore an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
Whilst limitation periods are not to be taken lightly, the Court notes that the delay in this matter is only one day.
This delay is minimal and weighs in favour of granting an extension of time.
Prejudice
In written submissions (filed in this Court on 6 April 2023), the Minister’s representative conceded that, “beyond the finality in administrative decision making”, the Minister would not face any prejudice in the event that an extension of time is granted.
This also weighs in favour of an extension of time being granted.
Explanation
As outlined above, the applicant did not include any “grounds” in his application. The Court, instead, asked the applicant (at the hearing of this matter) to explain why his application to this Court was filed late.
In response, the applicant told the Court that his cousin (who was with him at the hearing for support) had filed his application for him and would be better placed to explain what happened and why the application was late.
When asked, the applicant’s cousin confirmed to the Court that he had filed the applicant’s judicial review application with the Court and explained that, because they had sought a fee concession, the Court took three days to process that request and to accept the documents for filing.
Ms Ellis, on behalf of the Minister, explained to the Court that there are two dates on the “sealed” Notice inserted at the front of the application document. That page indicates that the document had been accepted for electronic filing and indicates that the document was “lodged” with the Court at 11:55:07am (AWST) on 21 June 2022. The document was not processed and accepted for filing by the Court until 10:49:04am (AWST) on 24 June 2022. Ms Ellis told the Court that it appears that is the three day delay that the applicant’s cousin spoke about.
The Court has reviewed the application for itself and agrees with the Minister.
Unfortunately for the applicant, this does not explain why his application was filed one day late. As outlined at [18] above, the Tribunal’s decision in this matter is dated 16 May 2022. The statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision (that is, 35 days from 16 May 2022). The applicant was thus required to file his application in this Court by 20 June 2022. The application in this matter was not, however, filed until 21 June 2022. It was then accepted for filing by the Court on 24 June 2022.
The Court does not consider that the explanation provided by the applicant (or his cousin, on the applicant’s behalf) is adequate. This weighs against granting an extension of time.
Merits
The most significant factor for consideration when determining whether an application for an extension of time should be granted is, arguably, whether the proposed application for judicial review has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on the substantive “grounds of review” (set out in the application for judicial review filed by him on 9 June 2022) and to outline any other concerns that he might have with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that his agent “made a mistake” because he gave the Tribunal his email address (instead of the applicant’s email address). On that basis, he explained, the Tribunal sent the request for documents to the applicant’s agent and not to the applicant directly. The applicant told the Court that his agent did not give him the letter “until the last day and then [he] had to rush to get everything together and to the Tribunal”.
The applicant also claimed that he had submitted his documents within time. Specifically, the applicant told the Court that he had provided the documents by 9:00pm (which meant that they should not have been late). The applicant also suggested that “perhaps the delay was because of the different time zones between Sydney/Melbourne and Perth”.
The applicant’s concerns, to the extent that they point to an arguable case of jurisdictional error, will be discussed further below.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision.
The Tribunal’s decision is 14 pages in length and spans 37 paragraphs. The final six pages annexe a copy of Ministerial Direction No. 69 (“Direction 69”).
The Tribunal began by explaining that the applicant had applied for the visa on 19 June 2021 and that, on 26 November 2021, a delegate of the Minister had refused to grant the applicant the visa because the applicant did not satisfy the genuine temporary entrant requirements. The Tribunal also confirmed that the applicant had applied to the Tribunal for review of the delegate’s decision on 17 December 2021 (at [1]-[3]).
The Tribunal outlined that, on 31 January 2022, it wrote to the applicant (pursuant to s 359(2) of the Act) inviting him to complete a questionnaire and provide information about his study and entry and stay in Australia as a student (at [4]).
The Tribunal confirmed that the applicant had filed a completed questionnaire and “other submissions” in response to the invitation on 15 February 2022. The Tribunal explained that the applicant had provided the documents outside of the prescribed timeframe and that, in those circumstances, the Tribunal may make a decision on the review without taking any further action (at [5]-[6]).
The Tribunal continued:
7.The Tribunal finds that the applicant did not provide further information as requested. In these circumstances, section 359C of the Act applies and pursuant to section 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear.
The Tribunal had regard to the applicant’s circumstances and relevant case law and considered that the applicant had been given a fair opportunity to provide information. On that basis, the Tribunal elected not to exercise its discretion to adjourn the review and proceeded to make a decision based on the information before it (at [8]-[10]).
The Tribunal then outlined the legislative framework that the applicant was required to satisfy in this matter (as set out in cll 500.211 and 500.212 in Schedule 2 of the Regulations), being the requirement to be enrolled in a course of study and the requirement to be a genuine applicant for entry and stay as a student. The Tribunal also explained that it was required to have regard to the factors set out in Direction 69, noting, in particular, that it was only intended to guide a decision-maker and should not be used as a checklist (at [13]-[20]).
The Tribunal considered the applicant’s circumstances, noting that:
(a)the applicant has not returned to Pakistan since arriving in Australia in June 2019 as the holder of his previous student visa (which expired in June 2021). The Tribunal noted that the applicant had applied for the visa the subject of the review in the same month that his previous student visa had expired. The Tribunal found that this timing raised concerns about whether the applicant was using the visa as a means of maintaining residence in Australia (at [21]);
(b)the visa application was made to undertake Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management (at [22]);
(c)the applicant indicated (in his response to the s 359(2) invitation) that he was not enrolled in a course of study as at 15 February 2022 and that he had not completed any business courses proposed in his previous student visa. He also provided a new letter of offer (dated 7 February 2022) for Certificates III and IV in Commercial Cookery and a Diploma of Hospitality Management for the period from 14 March 2022 to 8 March 2024 (the “courses”) (at [23]);
(d)on 9 March 2022, the Tribunal undertook a “PRISMS search” which confirmed that the applicant had approved enrolments in the courses and undertook a second PRISMS search on 12 May 2022 to ensure that he remained enrolled. The Tribunal placed no weight against the applicant in relation to those searches (at [24]);
(e)with the completion date of the courses, the applicant was scheduled to remain in Australia until March 2024 (totalling approximately five years that the applicant would be onshore). The Tribunal remained concerned about whether the applicant was a genuine temporary entrant and whether the applicant was using the visa to maintain residence in Australia (at [25]);
(f)it was concerned about the applicant’s lack of academic progress, noting that, despite being onshore for two years as the holder of the previous student visa and a further year as the holder of a bridging visa, the applicant had not completed any courses in the past three years. The Tribunal did not consider that to be the progress expected of a genuine student (at [26]);
(g)the applicant did not commence studying until shortly after the s 359(2) invitation letter was sent which, again, raised concerns for the Tribunal about the applicant’s intentions in applying for the visa (at [27]);
(h)it considered that the courses were relevant to, and would assist the applicant with, his stated future career ambition of owning his own restaurant (at [28]);
(i)it was concerned that the applicant may have formed strong ties to the Australian community which may be an strong incentive for him to remain in Australia, however, the Tribunal did not consider that it had sufficient information to make firm findings in that regard (at [29]);
(j)it did not place any weight against the applicant on the basis that he had not returned home since early 2020, acknowledging that the COVID-19 pandemic made international travel impossible during that period. The Tribunal accepted that the applicant had personal ties to Pakistan (being his parents and sister, who he contacts daily) but did not consider that those ties were a significant incentive for him to return (at [30]);
(k)it considered that the applicant had provided “reasonable reasons” for undertaking study in Australia (rather than in Pakistan) (at [31]);
(l)it had regard to the applicant’s economic circumstances in Australia and did not consider that these amounted to a significant incentive for the applicant to remain. The Tribunal noted, however, that this was subject to whether the applicant was working and, if the applicant was planning to work, the factor would require revisiting (at [32]); and
(m)there was no evidence that the applicant had travel, visa or immigration issues in the past, did not have any military service obligations or civil unrest concerns in Pakistan (at [33]).
The Tribunal ultimately determined as follows:
34.The Tribunal considers that, on balance, the factors weighing against the applicant in this case are greater than those falling in his favour. The Tribunal is concerned that the applicant is motivated by factors other than study and is using the student visa program as a means of maintaining residence in Australia. The Tribunal cannot be satisfied on the material and evidence before it that the applicant genuinely intends to stay in Australia temporarily.
The Tribunal was not satisfied that the applicant was a genuine temporary entrant and ultimately found that the applicant did not meet the criteria for the grant of the visa. On the basis of the above, the Tribunal affirmed the decision refusing to grant the applicant the visa (at [35]-[37]).
Proposed application for judicial review
The substantive application for judicial review filed by the applicant on 21 June 2022 contains two proposed “grounds of review” as follows (without alteration):
1.I am not satisfied with the decision of the department of home affairs and i want to challenge it.
2.Department of home affairs made the decision which i was not satisfied with so I applied the appeal in AAT but AAT made the decision without hearing. I want them to listen to my case first before they make any decision.
To the extent that proposed grounds one and two raise concerns in relation to the delegate’s decision, the Court is unable to assist. This Court has no jurisdiction (under ss 476(2)(a) and 476(4) of the Act) to review the delegate’s decision (which is a primary decision): Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426 at [13].
No arguable case of jurisdictional error arises in this regard.
In the remainder of ground two, the applicant takes issue with not being invited to attend a Tribunal hearing and with the Tribunal making a decision in his case without hearing from him.
The Tribunal is required, by s 360(1) of the Act, to invite an applicant to appear before the Tribunal to give evidence and present arguments. However, there are some exceptions to this requirement which are set out in ss 360(2) and (3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 31 January 2022, the Tribunal invited the applicant (through his authorised recipient) to provide information to the Tribunal. That invitation letter:
(a)invited the applicant to give the Tribunal (in writing) information relevant to his current enrolment status and the genuine temporary entrant criterion: ss 359(2) and 359B(1) of the Act;
(b)was sent to the applicant’s authorised recipient (as required by s 379G of the Act) via email (being a method specified in s 379A of the Act) at the last known email address provided in connection with the review: s 359(3) of the Act; and
(c)gave the applicant 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
Critically for the applicant, the invitation letter required a response be received by 14 February 2022. Further, any request for an extension of time within which to respond to the invitation letter also had to be received by 14 February 2022.
On 15 February 2022, the applicant filed submissions, a completed information questionnaire and supporting material with the Tribunal in response to that invitation (CB 95-167 & 186).
Section 359B of the Act provides:
359B Requirements for written invitation etc.
…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
Relevantly, the applicant’s response was received after 14 February 2022. No request was made on or prior to 14 February 2022 for further time to respond. As outlined by the Full Court of the Federal Court in Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40, the Tribunal thereby had no power to extend time within which the applicant could respond to the invitation letter.
The effect of the failure to respond or request an extension by 14 February 2022 was that ss 359C, 360(3) and 363A of the Act were enlivened. This meant that the applicant lost any right or entitlement to appear at a hearing before the Tribunal. That is, the Tribunal had no discretion (nor any power) to permit the applicant to attend a hearing. The Tribunal was, in effect, required to determine the application on the papers or materials before it.
No arguable case of jurisdictional error arises in relation to the Tribunal not inviting the applicant to attend a hearing before it.
Insofar as the applicant claimed that he (or his cousin) submitted documents to the Tribunal within the requisite time period (specifically, on or about 9:00pm on 14 February 2022) and that there may have been a delay because of the differing time zones, there is no evidence before the Court to support this claim.
In fact, the Tribunal records (in its case notes about the matter) address the time zone issue. Relevantly, the Tribunal records show that:
Review applicant Mr Muhammad Ali Patel submitted the documents for the 359(2) Student GTE invitation after the due time of 14 February 2022.
According to Casemate the documents were lodged “15 February 2022 3:38:43 AM ACT time (UTC+11:00).” This was after midnight when adjusted to Western Australian local time (i.e. 3:38 am less 3 hours is 00:38 AWST).
Based on the above, the Court is satisfied that the applicant provided documents in response to the invitation letter after the requisite time period (that is, after midnight on 14 February 2022).
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicant’s proposed “grounds of review” do not identify any arguable case of jurisdictional error on the part of the Tribunal. Further, the Court has been unable to identify any arguable grounds of error of the sort of this Court can address.
This weighs heavily against granting an extension of time.
CONCLUSION
While the minimal delay and lack of prejudice weigh in favour of granting the applicant’s request for an extension of time, the lack of an adequate explanation for the delay and lack of an arguable case of error in the Tribunal’s decision (judged at an impressionistic level only) heavily outweigh those considerations.
The Court does not consider that it is in the interests of the administration of justice to grant an extension of time in this matter.
The application for an extension of time (as amended on 27 April 2023) is, accordingly, dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 12 May 2023
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