Thapa v Minister for Immigration and Border Protection
[2018] FCA 1027
•6 July 2018
FEDERAL COURT OF AUSTRALIA
Thapa v Minister for Immigration and Border Protection [2018] FCA 1027
Appeal from: Application for extension of time: Thapa & Anor v Minister for Immigration and Border Protection & Anor [2017] FCCA 2707 File number: NSD 2142 of 2017 Judge: YATES J Date of judgment: 6 July 2018 Catchwords: MIGRATION – application for extension of time to appeal – whether proposed appeal meritorious Legislation: Migration Act 1958 (Cth) ss 116, 140
Migration Regulations 1994 (Cth) reg 2.43 (repealed), Sch 8 cl 8202
Date of hearing: 15 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 66 Counsel for the Applicants: The applicants appeared in person Solicitor for the First Respondent: Mr L Dennis of Minter Ellison Counsel for the Second Respondent: The second respondent appeared in person ORDERS
NSD 2142 of 2017 BETWEEN: GANESH THAPA
First Applicant
SHARMILA THAPA
Second Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
6 JULY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 5 December 2017 be dismissed.
2.The applicants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
The applicants seek an extension of time within which to file a notice of appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 10 November 2017: Thapa v Minister for Immigration and Border Protection [2017] FCCA 2707. This judgment dismissed the applicants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister) to cancel the first applicant’s Class TU (subclass 572) visa. This is a temporary student visa.
The applicants are husband and wife. They are citizens of Nepal. The first applicant was granted his student visa on 16 July 2013. The second applicant was also granted a student visa, but only as a member of the first applicant’s family unit.
The first applicant’s student visa was subject to cl 8202(2)(a) of Sch 8 of the Migration Regulations 1994 (Cth) (the Migration Regulations). The clause required the holder of the visa to be enrolled in a full-time registered course.
On 16 October 2015, a delegate of the Minister gave the first applicant a notice of intention to consider the cancellation of his visa on the ground that it appeared that he had not been enrolled in a registered course of study since 29 July 2014 (the notice of intention). The delegate invited the first applicant to inform the delegate whether he believed there were no grounds for cancellation of the visa and why the visa should not be cancelled.
The first applicant responded to the delegate’s invitation. In its Decision Record, the Tribunal summarised the first applicant’s response as follows:
10.The applicant responded by email dated 24 October 2015 to the notice. In summary in that response the applicant briefly referred to his previous education and for his reasons to come to Australia to study. He referred to having completed three diploma courses without breaching any conditions of his Visa. He referred to having married in April 2012. He said his wife arrived in Australia in September 2013. He claimed his studies were still “on track until July 2014” but after that he could not continue his studies because he had a “big fight with my wife and I had police matter and court matter”. He claimed he could not concentrate on his studies because of these problems. He referred to his education provider having cancelled his confirmation of enrolment. He claimed that his problems were sorted out and he was again able to study and went back to re enroll in his course. He claimed that in 2015 he again had a fight with his wife and again had to attend court and he was denied re-enrolment. He claimed that “now everything is on the track but I lost the immigration status has before”. He referred to having been in Australia 8 years and that he did not have sufficient money to look after himself and his family. He claimed he could not return because of a “huge earthquake happened in April 2015”. He claimed the earthquake it also affected him. He claimed that if he got the opportunity to continue his studies that he would do so and said “getting 4 to 5 years Visa will erase all my problem”.
The delegate considered these matters but, in the event, cancelled the first applicant’s visa under s 116 of the Migration Act 1958 (Cth) (the Migration Act).
THE TRIBUNAL
The applicants sought review of the delegate’s decision. The first applicant appeared at a hearing on 11 August 2016 to give evidence and present arguments. The hearing was conducted in the English language. The second applicant did not appear. The first applicant informed the Tribunal that the second applicant was at work and would not be giving evidence.
The Tribunal noted that the only “decision” before it was the delegate’s decision with respect to the first applicant’s student visa. The second applicant’s student visa was cancelled automatically as a result of the operation of s 140(1) of the Migration Act, which provides:
If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
In short, in relation to the cancellation of the second applicant’s visa, no “decision” was involved, with the consequence that the Tribunal’s jurisdiction was not invoked in respect of that cancellation.
The Tribunal’s Decision Record shows that it asked the first applicant about his attendance at courses. The first applicant was enrolled in a Diploma of Tourism course—a registered course of study—but his enrolment was cancelled by the education provider (Australian Institute of Professional Education) (AIPE) on 29 July 2014. The first applicant had been given warning letters by the education provider in December 2013 and in June 2014, apparently on the basis of his unsatisfactory progress. The letters were provided by email. The second warning letter offered the first applicant a mandatory meeting to discuss his study difficulties. The notice of cancellation given to the first applicant by the education provider recorded that its notifications to him had not been answered.
The first applicant informed the Tribunal that he did not recall getting correspondence from the education provider. He said that he had had difficulties accessing emails in that regard. The Tribunal found this evidence to be vague. The Tribunal also noted that, even though in its notice of cancellation the education provider had told the first applicant to contact the Department of Immigration and Border Protection (the Department) to discuss and check his visa status, the first applicant had not done so until he received the Department’s notice of intention.
The Tribunal also asked the first applicant why he had not approached the education provider or the Department about his claimed study difficulties: see [10] of the Decision Record quoted above. The Tribunal recorded the first applicant’s response, as follows:
18.The Tribunal asked the applicant why he had not approached the education provider or the Department about his study difficulties. He said that he had not contacted the education provider because he had a busy schedule in terms of his work and his domestic problems and that stress had also affected him in terms of not attending classes. He really did not provide a reason as to why he had not contacted the Department as he was advised to do by the education provider upon the cancellation of his enrolment in the tourism course. He told the Tribunal he had not sought medical assistance in relation to his stress issues. He also told the Tribunal in relation to not attending classes that apart from the stress arising out of domestic issues he also had to work.
The first applicant claimed that in February 2015 he tried to re-enrol in the tourism course, but the education provider declined to accept the enrolment. The first applicant provided no documents in relation to this claim, and the Tribunal found that the first applicant was vague when discussing this matter with it.
The Tribunal’s Decision Record also records that, after the first applicant received the Department’s notice of intention, he enrolled in an advanced diploma of accountancy course in November 2015. However, the first applicant did not attend any classes in that course, and his enrolment was cancelled in February 2016.
The first applicant told the Tribunal that he needed more time to provide it with details about events in relation to his studies. The Tribunal did not accept that the first applicant needed more time. At [26] of its Decision Record, the Tribunal said:
26.He told the Tribunal that he needed more time to provide the Tribunal with details about events in relation to studies. The Tribunal in response noted the applicant’s evidence was that he had not been enrolled in a registered course of study since 29 July 2014 up until he enrolled in the advanced diploma of accounting in November 2015 and that he had last attended classes in the tourism course (he claimed) in April 2014. The Tribunal in those circumstances did not understand why the applicant required more time to provide further information about dates in relation to courses. The applicant was unable to tell the Tribunal how much time he was seeking and unable to provide any more details as to why the Tribunal should allow additional time. He also told the Tribunal that he was seeking extra time to allow his wife to get more qualifications. The Tribunal told the applicant that was not a relevant consideration for the Tribunal. The Tribunal told the applicant that on the basis of the evidence and information before the Tribunal that he had not been enrolled in a registered course of study since 29 July 2014 (up until he enrolled into the advanced diploma of accounting in November 2015 but he had not attended any classes) and the Tribunal would have to consider discretionary factors in relation to the cancellation of his student Visa.
On the evidence before it, the Tribunal concluded that the first applicant was not enrolled in a registered course of study and, consequently had not complied with the condition imposed by cl 8202(2)(a).
Having concluded that the first applicant had not complied with this condition of his visa, the Tribunal turned to consider whether it should exercise its discretion to cancel the visa. The first applicant had informed the Tribunal that, aside from himself, only his wife in Australia would be affected if the visa were to be cancelled.
The Tribunal took into account that cancellation of the visa could cause “some financial hardship” for the first applicant. However, the first applicant had completed some courses in Australia and the Tribunal considered that these may be of assistance to him in seeking employment in Nepal if he were required to return. The first applicant had informed the Tribunal that he had not experienced difficulties with authorities in Nepal, and the Tribunal was satisfied that Australia’s international obligations would not be engaged if the visa were to be cancelled.
The Tribunal found that the first applicant’s failure to approach the Department when his enrolment in the tourism course was cancelled in July 2014 suggested that he was not cooperating with the Department in relation to the conditions of his visa.
The Tribunal also took into account the first applicant’s evidence about his domestic problems and disputes with the second applicant. The Tribunal accepted that the first applicant’s domestic situation, and related court proceedings, caused the first applicant some stress and may have had some impact on his studies. However, his stress was not such that he was minded to seek medical assistance. Further, the first applicant had not responded to the education provider’s warning letters about his unsatisfactory progress in the tourism course, and he had not approached the Department about study difficulties.
The Tribunal also took into account the first applicant’s evidence about his intended further studies, if allowed to remain. However, the Tribunal considered that the first applicant’s reasons for wanting to remain in Australia showed that he was as concerned about earning an income as he was about study, so that he could assist his family in Nepal. In this connection, the first applicant had also referred to the second applicant earning an income and being able to save while the first applicant remained in Australia.
The Tribunal concluded that, considering the circumstances as a whole, the first applicant’s student visa should be cancelled.
THE FEDERAL CIRCUIT COURT
The application for judicial review in the Federal Circuit Court contained three grounds.
The first ground was expressed as follows:
The Second Respondent erred in the identification and/or application of the operative law and regulations applicable to the review of the applicant’s application and thereby proceeded having asked itself the wrong question, failed to take into account relevant considerations, took into account irrelevant considerations, and constructively failed to exercise its jurisdiction.
This ground was supported by particulars which raised two matters. The first was that the Tribunal failed to consider whether the first applicant’s non-satisfaction of cl 8202(2)(a) was a result of exceptional circumstances beyond the first applicant’s control as required by reg 2.43(2)(b)(ii)(B) of the Migration Regulations. However, this regulation had been repealed on 13 April 2013 and had no application to the cancellation of the first applicant’s student visa.
The second matter was that, when exercising its discretion, the Tribunal had regard to guidelines in the Department’s Procedures Advice Manual (PAM3). The primary judge was not persuaded that the Tribunal’s reference to and consideration of PAM3 meant that the Tribunal took into account irrelevant considerations. The primary judge found that the Tribunal did not consider PAM3 to bind it to exercise its discretion in a particular way. Further, the first applicant did not point to any matter in PAM3 that was foreign to the subject matter, scope and purpose of s 116 of the Migration Act. The primary judge therefore rejected this ground.
The second ground was expressed as follows:
The First and Second Respondent failed to provide procedural fairness on the determination of the Applicants (jointly and severally) at first instance and then at the Administrative Appeals Tribunal.
This ground was supported by particulars which also raised two matters. The first was that the Tribunal did not take into account:
…the actual events, consequences and subsequent aftermath of the domestic issues which resulted in the non-attendance/non-enrolment at the study college and hence the subsequent cancellation of the student visas.
The primary judge found that this matter was not made out. The Tribunal acknowledged and considered the first applicant’s submissions based on his domestic difficulties and conflict with the second applicant, and had accepted that these difficulties may have caused some stress and may have had some impact on the first applicant’s studies.
The second matter was that the second applicant was denied procedural fairness. The primary judge found that this matter was not made out because the Tribunal was correctly of the view that the cancellation of the second applicant’s student visa was not a “decision” that was amenable to review by the Tribunal. The primary judge therefore rejected this ground.
The third ground was expressed as follows:
Tribunal fell into error having established that the Act at section 116(1) enlivens a discretion in the Tribunal, it failed to consider the hardship caused to the dependent student visa holder. The hardship alleged is the “lost opportunity” to apply for a student visa or such other in her own right during the currency of her existing visa.
The primary judge reasoned that this ground was a complaint that the Tribunal ought reasonably to have understood the first applicant to have claimed that the second applicant would suffer hardship because she desired to apply for a student visa but that this opportunity would be denied to her if the first applicant’s visa was cancelled.
In relation to this ground, the primary judge noted that there was nothing in the Tribunal’s Decision Record which suggested that any such claim had been made expressly. The primary judge considered whether this claim might have been made implicitly by the first applicant informing the Tribunal that he was “seeking extra time to allow his wife to get more qualifications”: see [26] of the Tribunal’s Decision Record quoted above. However, the primary judge rejected this possibility. He interpreted the first applicant’s submission to the Tribunal as merely one that it should reverse the delegate’s cancellation of the student visa so as to provide the second applicant time to obtain more qualifications.
Further, the primary judge reasoned that the first applicant’s submission to the Tribunal could not be a claim of hardship suffered by the second applicant because it was not apparent that maintaining cancellation of the first applicant’s visa could deny the second applicant the opportunity to obtain more qualifications or to apply for a student visa. The primary judge therefore rejected this ground.
The primary judge noted that the first applicant had raised additional matters in an affidavit he had filed and in a document dated 18 October 2017.
The primary judge said that, although the affidavit canvassed matters already covered by the application for judicial review, it also raised two additional matters. The first was that the first applicant did not have legal representation before the Tribunal. The primary judge held that this did not disclose any jurisdictional error. The second matter was that the first applicant claimed that the Tribunal failed to evaluate his arguments or weigh and balance the evidence, and otherwise failed to engage with his claims. The primary judge did not accept this contention. He found that the Tribunal had identified the issues before it; had asked the first applicant questions that were relevant to the matters on which the first applicant had relied; and had considered all the evidence that was before it in making its decision.
The primary judge found that the 18 October 2017 document made a number of claims. The first was that the Tribunal did not consider that the second applicant might wish to study in Australia. As I have noted, the primary judge was not satisfied that any such claim had been made to the Tribunal. Rather, his Honour found that the first applicant had merely informed the Tribunal that he wanted more time to enable the second applicant to obtain more qualifications.
In the 18 October 2017 document, the first applicant also claimed that he was unable to attend college because the second applicant had destroyed his assignment book and all the assignments he had used for the course. The primary judge was not satisfied that this claim (apparently made for the first time) disclosed any jurisdictional error by the Tribunal. There was nothing in the Tribunal’s reasons or in the material before the primary judge that indicated that the first applicant had informed the Tribunal of any such matter.
In submissions, the first applicant complained that the Tribunal erred by not granting him an adjournment. He claimed he was not given an opportunity to explain the reasons why he was not enrolled in a registered course of study and that he had asked the Tribunal for time to enable the second applicant to attend to give evidence. The primary judge considered this claim to be inconsistent with the matters recorded by the Tribunal in its Decision Record dealing with this matter: see [26] of the Tribunal’s Decision Record quoted above. The primary judge found that it was apparent from the Tribunal’s Decision Record that the first applicant hAd not advanceD his desire that the second applicant give evidence as a reason for an adjournment. The primary judge said:
41.The reasonableness of the Tribunal’s decision not to grant the first applicant’s adjournment must be assessed by reference to the reason or reasons for which the first applicant sought the adjournment, and the reasons the Tribunal gave for not granting it. The reason the first applicant gave, as recorded in the passage from the Tribunal’s reasons I have set out above, was to obtain “details about events in relation to studies”. After the Tribunal informed the first applicant that that did not afford an adequate reason, given the Tribunal had before it the relevant dates on which, and the periods for which the first applicant was or claimed he was enrolled in a registered course of study, the first applicant could give no other reason for an adjournment other than that he wished further time to enable the second applicant to obtain more qualifications. The Tribunal considered this to be irrelevant to the task it had to undertake. In these circumstances, the Tribunal gave an “evident and intelligible justification” for not granting the first applicant an adjournment; and its decision not to grant the first applicant an adjournment was not ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””. The Tribunal made no jurisdictional error by considering irrelevant the first applicant’s statement to the Tribunal that he wanted further time to enable the second applicant to obtain more qualifications. That the second applicant may have wanted time to obtain more qualifications cannot reasonably be considered to have been relevant to whether the Tribunal should grant the first applicant further time.
(footnotes omitted)
In the event, the primary judge dismissed the application for judicial review, with costs.
THE PRESENT APPLICATION
Proposed grounds of appeal and submissions
The applicants’ draft notice of appeal contains five proposed grounds, expressed as follows:
1.The order was given in the first appellants late arrival (10 minutes) as a no appearance by or on behalf of the applicants. The matter would have set a side for few minutes because public transport train sometimes stops in the middle of way and makes late for everyone.
2.Second Respondent has misunderstood my personal circumstances of not attending the AIPE college so that Second respondent misapplied the statute by asking many unnecessary questions.
3.Federal Circuit Court and Second Respondent has failed to take into account relevant factors and factors taken into account is not related to the matter. First appellant’s domestic matter was taken into account but the real reason behind not attending the AIPE college was not taken into account. June 2014 AIPE college where First appellant was studying moved from North Sydney to City. Staff and management was also changed in AIPE at city (160 Sussex Street, Sydney). No opportunities were given to address this grounds.
4.Second Respondent has acted unreasonably because adjournment was not given on the requested date so that first appellant would have collected some evidence from AIPE college.
5.Due to 25 April 2015 Earthquake in Nepal, question was asked whether it had effected the first appellant or not by second respondent. First appellant explained somehow it had affected. At the end of the hearing another question was asked what would first appellant like to do if visa granted. Due to first appellant answer second Respondent judged him wrongly because he replied he would make a house. The answer was not exactly the same which second Respondent wants to hear because second Respondent was expecting answer from him as he would study because he would be on student visa. Student visa holder can work on high pay within work limits where he/she can save money for the purpose to meet course requirement and help overseas. Unreasonable question and inflexible policy made first appellant and second appellant face hard time.
I note that, with some possible exceptions in relation to some aspects, the proposed grounds of appeal do not raise matters that were grounds of judicial review before the Federal Circuit Court.
In an affidavit filed in support of the present application, the first applicant referred to an affidavit dated 2 September 2017 which was filed in the Federal Circuit Court. This appears to be the affidavit which the primary judge considered, and which I have noted above. The affidavit filed in support of the present application also refers, cursorily, to an “application and police fact sheet about having mental difficulties” which the first applicant says was submitted to the Tribunal. Neither the affidavit filed in the Federal Circuit Court nor the documents said to have been submitted to the Tribunal are annexed to the affidavit, and their relevance to the present application and the proposed grounds of appeal is not apparent.
Finally, the affidavit refers to the fact that the Federal Circuit Court dismissed the application for judicial review with costs and that, as at 10 November 2017, when judgment was given, the first applicant had no work rights. I infer that the first applicant contends that, for this reason, no costs order against the applicants should have been made in the Federal Circuit Court.
Noticeably, the affidavit does not provide any explanation for not filing a notice of appeal within time.
On 6 December 2017, the applicants were ordered to file a written outline of submissions at least 10 days before the hearing date of the present application. This order has not been complied with. No outline of submissions was filed.
At the hearing of the present application, the first applicant appeared with the assistance of an interpreter. He made a number of submissions, which I summarise below. The second applicant was also present in Court. When asked, the second applicant said that she did not want to say anything in respect of the application.
The Minister filed a written outline of submissions in which he submitted that, while the applicants are only four days out of time and no prejudice would be suffered by him if time were to be extended, the applicants had not provided an explanation for the delay. Further, and perhaps more importantly, the Minister submitted that the proposed grounds in the draft notice of appeal have no reasonable prospect of success. For those reasons, the Minister submitted that the Court should refuse to extend time to enable the applicants to file a notice of appeal.
In an application such as the present one, the Court usually has regard to the following factors when considering whether to grant the extension of time that is sought:
·the extent of the delay;
·the explanation for the delay;
·any prejudice a respondent might suffer because of the delay; and
·the merits of the proposed appeal.
I drew the first applicant’s attention to these matters and to the position adopted by the Minister in his written outline of submissions. I invited the first applicant to address me on them, and on anything else he wanted to raise in support of the application. As I have recorded, the second applicant did not want to say anything.
The first applicant’s submission focused on the Tribunal’s denial of his application for an adjournment of the Tribunal hearing. In summary, the first applicant said that he asked the Tribunal for a two week adjournment so that his wife, the second applicant, could be present at the hearing. However, as the primary judge noted, this is not the reason that the first applicant advanced before the Tribunal for seeking the adjournment.
Analysis
Having considered the proposed grounds of appeal in light of the Tribunal’s Decision Record and the primary judge’s findings, I am not satisfied that they have any reasonable prospect of success, with the consequence that it would be futile to grant the extension of time that is sought.
Ground 1 refers to the fact that the first applicant did not arrive at the Federal Circuit Court on time when judgment was given by the primary judge on 10 November 2017. This circumstance does not give rise to any ground of appeal from the Federal Circuit Court’s judgment given on that day.
Ground 2 appears to be an allegation that the Tribunal misunderstood the first applicant’s personal circumstances for not attending AIPE where he was undertaking the tourism course and, as a consequence, misapplied the relevant legislation. There also seems to be an allegation that the Tribunal misapplied the relevant legislation by “asking many unnecessary questions”.
Ground 2 may be an allegation that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations. If so understood, it seems to be related to the matters raised in the first applicant’s affidavit filed in the Federal Circuit Court in which he claimed that the Tribunal failed to evaluate his arguments and weigh and balance the evidence, and otherwise failed to engage with his claims.
There is nothing in the Tribunal’s Decision Record which indicates that the Tribunal misunderstood the first applicant’s personal circumstances. Certainly, the first applicant did not point to any such matter in his oral submissions before me. Further, there is nothing in the primary judge’s reasons which reveals any appealable error in the primary judge’s rejection of the first applicant’s claim that the Tribunal failed to evaluate the first applicant’s arguments or weigh and balance the evidence, or otherwise failed to engage with his claims.
Apart from these matters, Ground 2 seems to be no more than a disagreement with the Tribunal’s understanding and assessment of the first applicant’s personal circumstances, and the weight it gave to those matters. This does not reveal any jurisdictional error on the part of the Tribunal, still less any appealable error in the judgment of the Federal Circuit Court. Ground 2 has no reasonable prospect of succeeding.
Ground 3 is in a similar vein. It focuses, however, on an explanation given by the first applicant (and repeated in oral submissions before me) that he did not attend AIPE because of its changed location. In this proposed ground, the first applicant complains that he was not given the opportunity to address this matter before the Tribunal. In oral submissions, the first applicant said that there were different front desk staff at AIPE’s new location. He did not like their behaviour. He did not consider them to be helpful.
This proposed ground of appeal has no reasonable prospect of succeeding. By letter dated 20 May 2016, the Tribunal invited the first applicant to appear at a hearing to give evidence and present arguments. It is apparent from the Tribunal’s Decision Record that it considered the first applicant’s submissions made to the Minister’s delegate in response to the notice of intention; the evidence provided by the first applicant when he attended the hearing on 11 August 2016; and the submissions that he made at that time. At no relevant stage did the first applicant advance a change in the location of AIPE or the asserted lack of helpfulness of the front desk staff at the new location as a reason or as reasons why his student visa should not be cancelled. No material has been advanced which even suggests that the Tribunal denied the first applicant the opportunity to put these matters or any other matter that he wished to raise as a reason why his student visa should not be cancelled. Had the change of location or the behaviour of AIPE’s front desk staff been a reason for (what AIPE considered to be) the first applicant’s unsatisfactory progress in the tourism course in which he was enrolled, then I can think of no reason why the first applicant could not have, or more importantly would not have, squarely raised these matters with the Tribunal. It was not necessary for the second applicant to be present at the Tribunal hearing for the first applicant to put these matters.
Ground 4, relatedly, alleges that the Tribunal acted unreasonably by not granting the first applicant an adjournment to collect some evidence from AIPE. This matter is dealt with fully at [26] of the Tribunal’s Decision Record, which I have quoted above. As is apparent from the quoted passage, the Tribunal declined to grant an adjournment on this basis because no explanation was provided why the first applicant required additional time to provide further information about dates in relation to courses, and the first applicant was unable to tell the Tribunal how much time he was seeking or to provide any more details as to why the Tribunal should allow additional time. The Tribunal plainly considered the matter and gave intelligible reasons for not granting an adjournment. I am unable to see how that decision, based on the matters put before the Tribunal as recorded by it, manifests unreasonableness in the requisite sense. As the primary judge concluded, the Tribunal’s decision not to grant an adjournment, on the material before it, was not “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” or “obviously disproportionate”. I see no arguable error in the primary judge’s finding such as to give rise to a viable ground of appeal.
As I have already noted, the first applicant’s statements in oral submissions before me as to what he told the Tribunal when making his adjournment application are at significant variance with the way in which he presented his adjournment application to the Tribunal. Further, the first applicant’s statements in oral submissions are not reflected in the submissions recorded by the primary judge, presumably because, similarly, they were not advanced in the judicial review proceeding. I have no reason to go behind the Tribunal’s record of the events at the hearing, and decline to do so. On this basis, Ground 4 has no reasonable prospect of succeeding.
Ground 5 appears to take issue with the Tribunal’s finding that the first applicant’s evidence suggested that his reasons for wishing to remain in Australia were concerned as much about earning an income (so he could assist his family in Nepal), as they were about studying. So understood, this ground simply raises a challenge to the weighing of factors by the Tribunal when considering the exercise of its discretion. The Tribunal’s finding in this regard does not manifest jurisdictional error on its part.
Ground 5 also alleges that the Tribunal asked unreasonable questions and applied an inflexible policy when exercising its discretion to cancel the first applicant’s visa. It is not apparent to me that the Tribunal’s questions (as gleaned from its Decision Record) were unreasonable or that, somehow, asking those questions gave rise to a jurisdictional error. It is also not apparent to me from a consideration of the Tribunal’s Decision Record that, in exercising its discretion, the Tribunal inflexibly applied policy considerations. The primary judge dealt with and rejected a similar contention when dealing with Ground 1 of the application for judicial review. I see no appealable error in the primary judge’s rejection of Ground 1 in the judicial review application. Ground 5 has no reasonable prospect of succeeding.
Although not raised in the draft notice of appeal, the first applicant’s affidavit suggests error in the Federal Circuit Court making a costs order against the applicants when dismissing their judicial review application, based on the fact that the first applicant did not have work rights. There is nothing in the primary judge’s reasons to suggest that any such submission was advanced on the question of costs. In any event, the fact that the first applicant did not have work rights was not a reason for not making the costs order.
Finally, in oral address the first applicant did not advance any explanation for the delay in filing a notice of appeal, even though it was pointed out to him that this was a relevant matter to address.
CONCLUSION AND DISPOSITION
The application to extend time should be dismissed. The applicants should pay the Minister’s costs of an incidental to the application.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 6 July 2018
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