Raza v Minister for Home Affairs
[2019] FCCA 1504
•5 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAZA v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1504 |
| Catchwords: MIGRATION – Extension of time in which to seek judicial review of Tribunal decision affirming refusal of Student visa – applicant obtains Student visa – enrols in a series of courses – completes one short course – applicant absent from study for extended period – applicant claims father withdrew financial support and that grandfather offered financial assistance on condition that the applicant enrols in and completes further courses then returns to run family business – whether applicant was a genuine applicant for entry and stay as a student in Australia – Tribunal affirms delegate’s decision to refuse further Student visa – application for judicial review 15 months out of time – application for extension of time – applicable principles – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.65, 362B, 368, 476A, 477 |
| Cases cited: AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358 AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291 CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354 DMI16 v Minister for Immigration and Border Protection [2018] FCAFC 95 Kio v Minister for Home Affairs [2019] FCA 579 Mentink v Minister for Home Affairs [2013] FCAFC 113 Minister for Immigration and Border Protection v SZNVW (2010) 183 FCR 575 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249 MZABP v Minister for Immigration and Border Protection (2016) 242 FCR 585 MZZQA v Minister for Immigration and Border Protection [2016] FCA 584 Spencer v Commonwealth (2010) 241 CLR 118 SZNCR v Minister for Immigration and Citizenship [2012] HCASL 26 SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109 SZSQL v Minister for Immigration and Border Protection [2015] FCA 294 SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 |
| Applicant: | AHMAD RAZA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 356 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application pursuant to s 477(2) of the Migration Act 1958 (Cth) to extend the time within which an application be made to seek judicial review of the decision of the Migration Review Tribunal made on 2 December 2014 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a Student (Temporary) (Class TU) visa is dismissed.
The applicant pay the costs of the first respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 356 of 2016
| AHMAD RAZA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application filed on 19 August 2016, judicial review is sought of a decision of the then Migration Review Tribunal (Tribunal) made on 2 December 2014 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act). The applicant sought an extension of time for making that application and provided grounds for doing so.
The application for an extension of time should be refused. The applicant’s explanation for the 15 month delay in filing the application was admittedly lacking in cogency. I do not consider it is sufficiently arguable that the decision not to accede to a request for an adjournment was tainted by legal unreasonableness. Nor was it sufficiently arguable that the Tribunal’s reasoning failed in its treatment of an affidavit of the applicant’s grandfather, which addressed financial support that he would proffer for the applicant’s further study in the future.
Background
The applicant, a Pakistani national aged 28 years, arrived in Australia on 5 January 2011 on a Student visa that was valid until 14 October 2013. In the period between February 2011 and September 2015, the applicant enrolled in four different courses as indicated by Provider Registration and International Management System (PRISMS) records. The PRISMS records indicate that from 15 August 2012 until 15 October 2013 the applicant was not engaged in any course of study. They also demonstrated that the applicant had enrolled in courses to study automotive mechanical technology from February 2011 until August 2012, and marketing from October 2013 until April 2014. At other times, the applicant also enrolled in other courses of study, including marketing and management.
The circumstance that the applicant was not engaged in a course of study for an extended period meant that he was in breach of a condition upon which his earlier visa had been granted.
On 10 October 2013, the applicant lodged an application for a Student (Class TU) visa. In support of his application he supplied an affidavit from his grandfather. The bank statements attached to the grandfather’s affidavit indicated that he was a rice grower. Also attached to the declaration was a letter dated 9 October 2013 from the grandfather’s bank, Faysabank, which stated that he had maintained his account with that bank since 11 February 2013 and that “His dealing with us is quite fair and we are enjoying good banking.”
On 14 October 2013, the Department invited the applicant to comment on his study gap, his lack of academic progress and the reasons for enrolling in his intended course of study. The applicant replied about a month later, explaining that although he had hidden his decision not to pursue civil engineering (as his father had apparently wanted), his father had discovered the true position and ceased to provide financial support to him. He stated:
So I contacted my grandfather so may be he can support me. He agreed on 1 condition that instead of setting up my own business I will do diploma and certificate in marketing so that after completing these courses I should come back and take over his business.
In his submission, the applicant asked the Department to forgive him and to give him one last chance to complete his studies.
On 6 May 2014, the Department notified the applicant that his application for a Student visa had been refused. A delegate of the Minister refused the visa application on the basis that the applicant was not a genuine applicant for entry and so did not satisfy a criterion in cl 572.223(b) of the Migration Regulations1994 (Cth) (Regulations). The delegate attached little weight to the grandfather’s affidavit as the applicant had provided no evidence of an agreement with the grandfather. The delegate considered the applicant’s lack of academic progress (the applicant having completed only one course of study), the cancellation of his enrolments in other courses and was not satisfied of the adequacy of the explanation for the period of non-study.
On 29 May 2014, the applicant applied to the then Migration Review Tribunal for review of the delegate’s decision.
On 30 October 2014, the Tribunal invited the applicant to attend a hearing on 1 December 2014 to give evidence and present arguments relating to the decision under review.
On 24 November 2014, the applicant requested that the scheduled hearing be postponed, on the stated basis that he was unable to prepare for it due to “lots of tension and depression” as his mother was unwell and was booked to have surgery. For those reasons, he said that he had been unable to prepare for the hearing. He concluded in stating “. . . if you want any evidence of her disease or that she is getting operated [on] I can provide you [with it] the day I will come for the hearing.”
On 26 November 2014, the Tribunal notified the applicant of its refusal to postpone the hearing, stating, amongst other things, that the applicant had not provided evidence that he was unfit to attend.
The applicant did not appear at the hearing on 1 December 2014 and did not furnish information respecting the mother’s illness or surgery.
Tribunal’s decision
On 2 December 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa, providing a statement of its reasons for that decision (Reasons).
In its Reasons, the Tribunal noted that the applicant sought review of the delegate’s decision refusing the visa application: [1]-[3].
The Tribunal observed that when the applicant had been invited to the hearing to present evidence and arguments on the issues arising in relation to the decision under review, he had been warned that if he did not attend, the application may be decided without further notice. The Tribunal observed that the applicant had requested a postponement and that he had done so on the basis that he could not prepare for the hearing on account of the tension and depression he claimed had been caused by his mother’s illness and her pending surgery. The Reasons also recorded that the applicant had been advised the Tribunal would not postpone the hearing based on the lack of evidence that he was unfit to attend the hearing: [4].
The applicant did not provide supporting medical evidence to substantiate the claim that he was unfit to prepare for the hearing. Nor did he appear at the hearing as he had said he would. Nor did he subsequently contact the Tribunal to explain his non-attendance. The Tribunal decided[1] to make its decision without taking any further action to enable the applicant to appear before it: [5].
[1] Act, s 362B.
The Tribunal correctly identified that the issue in the application for merits review was whether the applicant met the criteria for a Student visa applicable to a Subclass 572 visa and set out cl 572.223: [7]-[8]. It recognised that it was obliged to be satisfied that the applicant was a genuine applicant for entry and stay as a student, including his stated intention that he would comply with any conditions subject to which the visa was granted, and any other matter: cl 572.223(2)(b): [9].
The Tribunal noted the applicant had limited supporting evidence to explain his extended study gap. It was not satisfied that the applicant’s father had withdrawn his financial support or that this had led to the non-enrolment in a course of study from August 2012 to October 2013. The Tribunal also took into consideration that the applicant had been in Australia for over three years, that he had only completed a single short course and that, by reason of his period of non-study, he had been in breach of condition 8202[2] for a long period: [10]-[13].
[2]Condition 8202 required, in substance, that the applicant was enrolled in a course of study for the duration of his visa to remain in Australia.
On the basis of the applicant’s limited supporting evidence, and considering the applicant’s study history, the Tribunal was not satisfied that the applicant met an essential requirement of cl 572.223(2)(b); namely, that the applicant was a genuine applicant for entry and stay as a student. The Tribunal affirmed the delegate’s decision to refuse a further student visa: [14]-[16].
Procedural History
On 25 February 2016, the applicant filed an application for judicial review of the Tribunal’s decision and an extension of time to do so.
By a Response filed on 2 March 2016, the Minister opposed the making of the orders sought in the application on the grounds that the application did not establish any jurisdictional error in the decision of the Tribunal. The application for an extension of time was opposed.
In 2016 orders were made to facilitate the hearing of the applications. On 19 August 2016, the applicant filed an amended application.
Applicable principles
By s 477(1), a 35-day time limit is fixed for the making of an application for judicial review of a migration decision. The court may extend the time for filing an application: s 477(2).
The power to extend time is made subject to two conditions: (1) an application has been made in writing for such an extension; and (2) the court is satisfied that it is necessary in the interests of administration of justice to do so.[3] The first of those conditions was met by the request for an extension as made in both the application for judicial review and the amended application. The second condition is in issue.
[3]For the avoidance of doubt, the 35 day time limit commences from the date of the migration decision, irrespective of the validity of the decision: see s 477(3)-(5).
The discretion to extend time for the commencement of proceedings is a deliberately broad one.[4] It is well-settled that in the determination of whether an extension of time should be granted, the court should consider a number of factors including whether there is an acceptable explanation for the delay, the length of the delay, any prejudice to the respondent if the extension was granted, the merits of the substantive application and any other factor considered to be relevant.[5]
[4]Mohammad v Minister for Immigration and Border Protection [2014] FCA 1249, [25].
[5]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9; SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, [21]; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851, [12]; SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109, [16]; MZZQA v Minister for Immigration and Border Protection [2016] FCA 584, [8]; CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, [4]; AYI16 vMinister for Immigration and Border Protection [2017] FCA 1358, [10]-[11].
While the discretion is broad, the court should not grant an application for an extension of time unless it is proper to do so. That this is so brings to attention that legislative time limits are not to be ignored.[6] Equally, the discretion conferred recognises that there will be cases in which, although no prejudice may be sustained by the Minister, the consequences for an applicant in losing a right of review are real.
[6] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348.
Consideration
The basis on which the extension of time was sought was as follows:
Since the Second Respondent’s decision, the applicant has been very concerned about his mother’s health and was suffering from depression and anxiety and was not aware of his legal options.
This delay will not prejudice the first respondent’s ability to defend these proceedings.
The substantive matter has merit.
Length of delay & explanation.
The application was filed approximately 15 months out of time. Where an extension is sought following a lengthy delay before making the application, it would, in general, require exceptional circumstances to be properly explained in order for the court to be satisfied that it was necessary in the interests of justice to grant that relief.[7]
[7]Vella v Minister for Immigration and Border Protection (2015) 90 ALJR 89, [3] (Gageler J); DMI16 v Minister for Immigration and Border Protection [2018] FCAFC 95, [23]-[24].
The Minister correctly submitted that the applicant’s written submission made no attempt to address this issue. In oral submissions, counsel for the applicant correctly submitted that delay was a factor which deserved significant weight. However, he pointed also to the significant public interest in the lawfulness of administrative decisions. In particular, Mr Aleksov of counsel candidly and properly submitted that the explanation for delay in this case ‘is not great.’
In such applications, one approach is to focus on the adequacy of the explanation for the delay. This approach has been preferred on the basis that after the grant of leave the merits of the grounds can be evaluated.[8] Yet, as the discretion is deliberately broad, the combined considerations of delay and the absence of an adequate explanation may support a decision to refuse an extension notwithstanding that a finding of jurisdictional error might be made: AZAFJ v Minister for Immigration and Border Protection.[9] There Bromwich J stated:
. . . the claim of jurisdictional error is at best questionable and the delay is both substantial . . . and without any real explanation, let alone a satisfactory explanation, that will tend to support declining to exercise a discretion to intervene.
His Honour refused an extension on an application that was just over a year out of time. Bromwich J also considered that it remained for the court to consider the question of delay independently of any concession that was made on this issue.[10] For completeness, I note that counsel for the Minister disavowed the proposition that it would be an appropriate exercise of the statutory discretion to refuse an extension of time in circumstances where, although the delay was significant and the explanation lacked substance, the court was otherwise satisfied of a demonstrable jurisdictional error by the decision-maker.
[8] Cf MZABP (2016) 242 FCR 585, [56] (Mortimer J).
[9] [2016] FCA 291, [57].
[10] SZVDC v Minister for Immigration and Border Protection [2016] FCA 1382, [27].
The applicant had been afforded several opportunities to furnish evidence on the application for an extension.
The applicant’s affidavit in support of the application stated in part:
I seek an extension of time in the interests of justice for the reason set out below:
a)A week before the decision of the Tribunal I requested more time to provide documents to support my application to the Tribunal.
b)My mother was unwell and was due to undergo an operation for kidney failure on December 2014 in Pakistan. I wrote to the Tribunal to request that this hearing be postponed until after my mother's operation as I did not think I could prepare for the hearing.
c)The Tribunal did not give me more time to provide documents, but went ahead and made its decision.
d)Following the decision of the Tribunal on 2 December 2014 I became stressed and distressed. I was stressed because of the refusal of my Subclass 572 visa application and my mother's health problems in Pakistan.
e)My mother was admitted to hospital on 30 November 2014 so that she could have an operation on 4 December 2014. Following the operation my mother was placed on dialysis, released from hospital and placed under the care of my father and sister. Since the date of operation my mother has been bedridden and remains on dialysis. My family have struggled to pay medical costs and are in an extremely difficult financial position.
f)As a result of all this, my mental health has suffered and I felt like committing suicide. I was unable to function and think about how to handle my immigration status.
g)I didn't understand the Tribunal's letter about my judicial review options and didn't realise I could lodge an application with the Federal Circuit Court or the time frames for making that application.
h)I have now sought legal advice and have been informed that the Tribunal may have made errors in my matter and have lodged this application as soon as possible after receiving that advice.
i)I believe I should have an opportunity to have my case considered.
No documentary evidence was exhibited to the applicant’s affidavit as being corroborative of the claims that his mother had been unwell or that she had undergone surgery or that he had suffered, in a derivative sense, as to be so unwell or distressed that he had been unfit to prepare for his hearing before the Tribunal.
Nor did the applicant’s evidence seek to establish by independent medical or other evidence that, subsequent to the Tribunal proceeding in his absence to affirm the delegate’s decision to refuse the visa application, he had been unwell to the point where he had been disabled from being able to institute the present application for a period of fifteen months.
In this case the delay was significant and in my opinion, no adequate explanation for the delay has been proffered. Contextually, it may have been careless not to file medical or other documentary evidence before the Tribunal or to attend the hearing to do so. However, the failure, at the time of filing the affidavit in this proceeding coupled with the failure to adduce any cogent evidence of the applicant’s apparent inability to function and any condition disabling him from filing the application for a period of 15 months, undermined the credibility of the explanation contained in the affidavit.
Prejudice
While the Minister accepted that he would not suffer any prejudice in responding to the application if the court were to grant an extension of time, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that it is necessary and in the interests of the administration of justice to grant of an extension.[11]
[11]Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349; SZSQL v Minister for
Immigration and Border Protection [2015] FCA 294, [15]; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86, [6] (The Court).
Contrastingly, the applicant submitted that the question of prejudice fell for consideration in the context that by s 476A(3)(b) of the Act, no appeal lies from an order of this court either granting or refusing an application for an extension of time under s 477(2). However, it appears that an alternative route is supplied by s 39B of the Judiciary Act 1903 (Cth) for review of the court’s decision.[12]
[12] Cf AZAFJ, [2016] FCA 291 [3]-[4] and cases cited (Bromwich J).
Merits of proposed application
The Minister opposed the application on the substantive basis that there was insufficient merit in the proposed grounds of review to warrant an extension of time. Expressed in positive terms, if the court concluded that there was no sufficiently arguable merit to the substantive application, it will not be necessary in the interests of the administration of justice to exercise the power to grant an extension of time.
Although the amended application raised 3 Grounds of review, Ground 1 was abandoned. Consideration of whether it is necessary in the interests of the administration of justice to grant the extension requires an evaluation of the merits of the proposed application. In the present case, I am not satisfied that the proposed Grounds of review are of sufficient merit as to warrant the grant of an extension of time.
As the authorities confirm, if an extension of time is to be granted, the court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[13] MZABP v Minister for Immigration and Border Protection.[14] Whether an extension of time should be granted will depend upon the particular circumstances of each case: Mentink v Minister for Home Affairs.[15]
[13][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[14][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
[15] [2013] FCAFC 113, [32]-[38] (Edmunds, Griffiths, Pagone JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary examination of the merits of the substantive application necessarily involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive:[16]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[17]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
The Full Court’s endorsement of Her Honour’s use of the criterion ‘reasonable prospects of success’ is apparent. This criterion is akin to that employed in an application for summary judgment where the court is authorised to dismiss a claim or defence where it is considered to have no reasonable prospects of success.[18] It is a criterion which is long accepted as posing a lower threshold than that which is applied on the final determination of the issues in a proceeding.
[16][2015] FCA 1391, [62]-[63].
[17](1998) 195 CLR 516 [7]-[9].
[18] cfSpencer v Commonwealth (2010) 241 CLR 118.
The trend of authority favours an approach to the determination of whether it is necessary in the interests of the administration of justice to grant an extension of time that the merits of the application should be evaluated at a reasonably impressionistic level such that the court is satisfied to a degree of confidence whether the grounds of review are arguable, reasonably arguable, sufficiently arguable or plainly hopeless. Further, in the consideration of whether the grounds of an application are sufficiently arguable, the court is not confined to a consideration of the proposed grounds of review but must also engage with the reasons of the Tribunal to consider whether the grounds are of any substance: see SZSZW v Minister for Immigration and Border Protection at first instance[19] and on appeal;[20] Kio v Minister for Home Affairs.[21] Those authorities confirm that the discretion is deliberately broad.
[19][2017] FCA 1544, [14]-[17] (Perry J) citing MZABP; DMI16 v Minister for Immigration and Border Protection [2017] FCA 1179, [33]-[36] (Robertson J).
[20] [2018] FCAFC 82, [26]-[27] (The Court).
[21] [2019] FCA 579, [4], [10].
Ground 2: refusal of adjournment
Ground 2 reads:
The refusal of the request for an adjournment is affected by legal unreasonableness in that:
a) The purpose of the adjournment request was to allow the applicant to recover from the “tension and depression” he was experiencing associated with his mother’s ill-health so that he could prepare for his review hearing. The adjournment was not sought because the applicant claimed that he was “unfit” to attend the hearing.
b) The Tribunal’s sole reason for refusing the request was that there was no evidence that he was “unfit to attend”, which indicates that the Tribunal misconstrued the nature of the applicant’s request, and constructively, did not consider the applicant’s actual request for an adjournment.
c) In the premise, constructively, the Tribunal did not consider the request for an adjournment and/or gave no reason for refusing to adjourn the review, and the refusal was legally unreasonable.
In substance, the applicant claims that the Tribunal misconstrued the nature of his request being that he be allowed further time because he had been unable to prepare adequately for the hearing and that he had been disabled from doing so by reason of his concern about his mother’s illness and his claim of her impending surgery. In particular, the applicant contended that he had not sought an adjournment because he had been unfit to attend the scheduled hearing.
The Minister correctly accepted that in appropriate circumstances, the Tribunal may commit jurisdictional error by acting in a way that was legally unreasonable in refusing an application for an adjournment: Minister for Immigration and Citizenship v Li.[22] It was also put that an administrative decision-maker was to be allowed an area of decisional freedom in procedural decisions such as an adjournment and that the question of importance was why the Tribunal had come to the decision to refuse the request for an adjournment.[23]
[22] (2013) 249 CLR 332.
[23](2013) 249 CLR 332, [21], [28] (French CJ), [66], [82] (Hayne, Kiefel and Bell J), [122] (Gageler J); cfMinister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [11] (Kiefel CJ), [65]-[67] (Gageler J), [84], [97] (Nettle and Gordon JJ), [140] (Edelman J).
In this application, the Reasons disclose that when the applicant had been invited to the hearing, he had been warned that if he did not attend, it may decide the application without further notice.
The Reasons confirm the Tribunal understood that the applicant had requested a postponement and that he had done so “on the basis that he could not prepare for the hearing on account of the tension and depression.” The Reasons further confirm the Tribunal also understood that the applicant claimed the reason he had been unable to prepare for the hearing had been because of his mother’s illness and her pending surgery. The Tribunal recorded that before the hearing the applicant had been advised the Tribunal would not postpone that hearing based on the lack of evidence that he was unfit to attend the hearing: [4]. Read fairly and without an eye keenly attuned to error, that reasoning discloses that the Tribunal declined the request for a postponement because it considered the applicant had adduced no evidence that he had been unable to prepare for the hearing by reason of those matters.
Beyond his email, the applicant had not provided supporting medical or other evidence to substantiate that he had been so disabled or unfit as to be able to prepare for the scheduled hearing. He did not attend that hearing (as he had said he would do) or subsequently contact the Tribunal to explain his non-attendance. The Tribunal then decided, pursuant to s 362B of the Act, to make its decision without taking any action to enable the applicant to appear before it: [5].
Contrary to particulars of this Ground, when the applicant requested that the Tribunal postpone the hearing, he stated that he would attend it. He did not do so. The applicant was entitled to an opportunity to present evidence and arguments on the merits review.
I do not consider as sufficiently arguable the applicant’s claim to have suffered, as a result of his mother’s supposed illness and pending surgery, a condition of such a kind as to disable him from having a meaningful opportunity to prepare for the hearing. Reading the Reasons fairly and as a whole, although the Tribunal had advised the applicant that it would not postpone the hearing as he had produced insufficient evidence that he was ‘unfit to attend the hearing’, the Reasons at [4]-[5] make plain that it understood the substantive basis for the applicant’s request was that he had been unable to prepare for the hearing. The Tribunal rejected the request for a postponement because the applicant had supplied no evidence to support claims that his mother had been unwell or that she was to undergo surgery or that he had been suffering tension or depression as a result or that he had been so disabled that he could not prepare for or attend the hearing.
The applicants supposed unfitness was a derivative claim, the foundation for which he had not established. As stated, the applicant had produced no evidence of his own disablement or unfitness such as to be unable to prepare for the hearing (notwithstanding that he said he would attend the hearing to produce evidence). Further, the Tribunal noted that the applicant had not contacted it after the scheduled hearing date so as to explain his non-attendance. It was in those circumstances that the Tribunal proceeded to decide the application in his absence.
The Tribunal was not obliged to press the applicant to call further evidence of his psychological issues or to expand on his arguments relating to his claim to be disabled from preparing adequately for the hearing because of his underlying concern about his mother’s claimed medical issues and pending surgery: cf Minister for Immigration and Border Protection v SZNVW.[24]
[24](2010) 183 FCR 575, [20], [22] (Keane CJ, Emmett J agreeing).
I do not consider that it is sufficiently arguable that it had not been open to the Tribunal to find that there was a lack of evidence before it supporting a conclusion that the applicant had been so afflicted by a condition as to disable him from exercising an opportunity to prepare for, or to attend and give evidence or present arguments in support of, his application: cf SZNVW.[25] Accordingly, I do not accept that it is sufficiently arguable that the decision to refuse the application to postpone the hearing was legally unreasonable. Nor can I conclude that it is sufficiently arguable that the Tribunal’s invitation to the applicant to present arguments or adduce evidence was subverted[26], or that the Tribunal’s function of review had been stultified or frustrated.[27]
[25](2010) 183 FCR 575, [15], (Keane CJ, Emmett J agreeing), [74], (Perram J).
[26] SZNVW, [75], [83], (Perram J).
[27] SZNVW, [87], (Perram J).
The Full Court’s reasoning in SZNVW has been followed on frequent occasions. In particular, in Minister for Immigration and Citizenship v SZNCR,[28] Tracey J said:
Following SZNVW an applicant who has a diagnosed mental impairment which does not render him or her 'entirely unfit' to attend a Tribunal hearing and answer questions cannot be held to have been denied a 'real and meaningful' opportunity to participate in the appeal hearing. It must be demonstrated that the applicant was unfit (in the sense of being unable) to give evidence, present arguments and answer questions in the course of the hearing. (emphasis added)
Tracey J held that:
. . . [the] mere possibility that the Tribunal, had it been aware of an applicant's mental state, may have formed a different conclusion about the applicant's credibility is not sufficient to establish a contravention of s 425(1).
The High Court refused special leave to appeal.[29]
[28] [2011] FCA 369, [30].
[29]SZNCR v Minister for Immigration and Citizenship [2012] HCASL 26.
If the principles stated in SZNVW are to be applied in cases where an applicant has a diagnosed impairment of which a Tribunal is unaware, in my opinion it is no less incumbent upon an applicant who seeks an adjournment on the basis of suggested incapacity to demonstrate the unfitness for which they contend. And that is so whether the unfitness goes to the applicant’s ability to prepare for, or to attend, a hearing.
The test of legal unreasonableness is stringent and the cases in which it will be established are rare.[30] For the reasons above, I do not accept that it was unreasonable in the requisite sense, for the Tribunal to decline the request to postpone the hearing. Despite the suggested infelicity in the Reasons, I consider that the Reasons demonstrate an intelligible justification for deciding to refuse to do so.
[30]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [11] (Kiefel CJ), [84], (Nettle and Gordon JJ).
In my opinion, Ground 2 does not raise matters that are sufficiently arguable as to merit the grant of an extension of time.
Ground 3: failure to consider grandfather’s affidavit
Ground 3 reads:
The Tribunal constructively failed to perform a review in that it failed to have regard to the affidavit of the applicant’s grandfather, which was important corroborative evidence tending to confirm the applicant’s claims and tending against the Tribunal’s inability to reach a state of satisfaction that the applicant’s “father withdrew his financial support and this led to the applicant not studying for the 14-month period” (Reasons [12]).
The applicant advanced Ground 3 as involving a failure to consider the Grandfather’s affidavit as supporting the applicant’s explanation for the father’s withdrawal of financial support and why he had not been engaged in study in the period August 2012 – October 2013.
Contextually, the Tribunal was concerned to evaluate whether the applicant was a genuine applicant for entry and stay in Australia as a student: cl 572.223(2). Its consideration of whether the applicant was a genuine applicant for entry as a student called attention to his historical record as a student under the condition of his prior visas. One of those conditions[31] required that the applicant be, in effect, continuously enrolled to study in Australia during the period of his student visa.
[31] Condition 8202.
The Tribunal rejected the applicant’s assertion that his father had withdrawn financial support and that this had been the reason why he had not been engaged in study in the period in question: [12]. It was in this context that the applicant submitted the Tribunal had erroneously ignored the grandfather’s affidavit in making the finding that it did not accept the applicant had provided an acceptable explanation for his breach of condition 8202 respecting the admittedly extended period for which he had not studied or been enrolled to do so.
It may be accepted that a failure to consider evidence that was central to the issues in the review may amount to a constructive failure to exercise jurisdiction.[32] Equally, it is settled that merely to ignore relevant material relevant only to fact finding does not of itself suffice to demonstrate jurisdictional error.[33]
[32]Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [95]-[115] (Robertson J) and cases cited.
[33] Ibid.
The applicant complained of the statement that he had “not provided any supporting evidence regarding the claimed agreement with his grandfather” and pointed to the grandfather’s affidavit as evidence of that agreement.
At the outset, I note that the delegate clearly considered the grandfather’s evidence and in turn, the Tribunal clearly considered both the delegate’s decision and the grandfather’s evidence.
The Tribunal correctly recognised the applicant’s claim that his father had discovered he was not studying civil engineering and had stopped providing financial support. The Tribunal further stated at [11]:
The applicant claimed that he contacted his grandfather who agreed to support him on the condition that he should do a diploma and certificate in marketing and that he should come back and take over his business.
The sequence of events for which the applicant contended thus involved: (1) his decision not to pursue study in civil engineering while holding an earlier Student visa; (2) the discovery of that fact by his father; (3) the cessation of financial support by his father; (4) the applicant having then contacted his grandfather; (5) the grandfather’s agreement to support the applicant on stipulated conditions.
The Tribunal’s Reasons at [12] then stated:
The applicant did not attend the scheduled Tribunal hearing; nor has he provided any form of evidence as to how he was supporting himself during the 14 month study gap where his father stopped supporting him. The Tribunal is not satisfied on the limited evidence before it that his explanation adequately explains the long gap in his studies. On the very limited evidence before it, the Tribunal is not satisfied that his father withdrew his financial support and this led to the applicant not studying for a 14 month period.
I do not accept that it is reasonably or sufficiently arguable that the grandfather’s affidavit lent any support for the applicant’s explanation for his period of non-study or the decision of the father to withdraw financial support. Viewed objectively, the grandfather’s affidavit looked to the future and proffered a measure of assurance as to the financial support that he would provide if the applicant was to engage in a further course of study. The grandfather’s affidavit stated:
1.I have my own business with title name of Growing [illegible] tax paying, number is 3281264-7.
2.That Mr Ahmad Raza is my real grandson and his [illegible] passport # ER9893481
3.That my grandson wants to extend his study visa to studies in Australia.
4.That I have sufficient funds to support my grandson Australia. I am taking responsibility to bear every [illegible] stay in Australia like, tuition fee, accommodation, [illegible] travel etc.
5.That I have attached my personal bank statement documents.
I do not accept that it is reasonably arguable that the grandfather’s affidavit was highly corroborative of the issue whether the father had withdrawn his financial support or of the explanation for the applicant’s extended period of absence from study. The affidavit addresses the grandfather’s willingness to provide financial support in the future. It did not speak to past events but to the future.
The Tribunal was not required to refer to every single aspect of the evidence in stating its reasons for finding that it did not accept the applicant’s explanation for why he had not been engaged in a course of study for an extended period. The court should not too readily infer that an administrative decision-maker has failed to consider evidence where its reasons are otherwise comprehensive and the issue has been at least identified at some point.[34]
[34] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630, [47].
The Tribunal was obliged to provide the reasons for its decision, the findings on material questions of fact and the evidence on which its findings were made.[35] Relevantly, this required the Tribunal to provide a finding whether the applicant was a genuine applicant for entry and stay in Australia for study. Part of the evidence on which it proceeded was its consideration of the adequacy of the explanation for the extended period of non-enrolment in a course of study. It was not required to address every item of evidence and the grandfather’s affidavit was not relevant or probative of that issue.
[35] Act, s 368(1).
Further, the grandfather’s evidence was not, contrary to the applicant’s submission, of fundamental importance to the Tribunal’s consideration of whether the applicant had provided an adequate explanation for the extended period of his non-enrolment in a course of study. However, the applicant complains that the grandfather’s affidavit was itself evidence of an agreement to provide financial support to the applicant in the future. Read fairly, the Reasons may be understood as meaning that, quite apart from that affidavit, there was no other contemporaneous record of such an agreement to furnish financial support. If there was error in the Tribunal’s decision by reason of a failure to deal with the grandfather’s evidence in greater deal, it was not error of a kind that I would characterise as being jurisdictional in nature.[36] As stated above, the delegate clearly considered the grandfather’s evidence and in turn, the Tribunal clearly considered both the delegate’s decision and the grandfather’s evidence.
[36] Cf SZRKT (2013) 212 FCR 99, [98], [111], [114] (Robertson J).
In my opinion, the Tribunal engaged in an active intellectual process in its assessment of whether it should be satisfied that the criteria in cl 572.223 were met. In finding that it was not satisfied that the applicant was a genuine applicant for entry and stay in Australia as a student, the Tribunal had regard to such material as was before it.
In my opinion, Ground 3 also does not raise matters that are sufficiently arguable as to merit the grant of an extension of time.
Other matters
The deliberately broad discretion conferred by s 477(2) recognises that it may be applied in relation to a wide variety of visa applications. The present is not an application for an extension of time respecting the proposed judicial review of a Protection visa. In such cases, the nature of the visa applicant’s claims to protection may require close consideration of the basis on which he or she might hold a well-founded fear of persecution or a real risk of significant harm.[37]
[37] Act, ss 36(2)(a), 36(2)(aa).
Contrastingly, the present application is for a Student visa and arises in circumstances where the applicant: (a) has being enrolled in a series of courses since 2011; (b) has completed one short course; (c) has had his enrolment in a number of other courses cancelled; (d) acknowledged that he had been in breach of a condition of an earlier visa, and (e) can apply from outside Australia to obtain a further student visa.
Conclusion
The determination whether it is necessary in the interests of the administration of justice to grant an extension of time requires that the delay, explanation for delay, prejudice, the relative merits of the proposed grounds and the other matters that I have considered above be considered both individually and cumulatively. For the reasons above, I am not satisfied that it is necessary in the interests of the administration of justice to grant the application for an extension of time in which to apply for judicial review. Nor, in my opinion, would it otherwise be appropriate in the exercise of discretion to do so. The application is refused with costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 5 June 2019
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