Thompson v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 346
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Thompson v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 346
File number(s): PEG 479 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 25 February 2021 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant needs an extension of time – short delay and reasonable explanation – lack of arguable merit – extension of time refused. Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.05
Migration Act 1958 (Cth), ss.359A, 359B, 363, 476, 477
Migration Regulations 1994 (Cth), cll 500.211, 500.212 of Schedule 2
Cases cited: Bala v Minister for Immigration and Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Minister for Immigration & Border Protection v Pandey [2014] FCA 640
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 102 Date of hearing: 24 February 2021 Place: Perth 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 Lawyers ORDERS
PEG 479 of 2019 BETWEEN: FABIAN STEPHEN DANIEL THOMPSON
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
25 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) is refused.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of India. He arrived in Australia on 26 July 2013 as the holder of a student visa. That visa was valid until 30 August 2016 (Court Book (“CB”) 53). The applicant was then granted a visitor visa that was valid until 31 January 2017 (CB 53).
On 14 December 2016, the applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa (the “visa”) (CB 1-32). The applicant was enrolled in a Certificate III/IV in Fitness, followed by a Diploma of Sport and Recreation Management. The materials provided to the then Department of Immigration & Border Protection included a letter of offer of employment at the “Indian Sports Promotion Academy” (CB 46).
On 20 April 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-55). The delegate was not satisfied that the applicant was a genuine temporary entrant. As such, the delegate determined, the applicant did not meet the requirements of cl 500.212(a) of the Migration Regulations 1994 (Cth) (the “Regulations”).
On 9 May 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 56-57).
On 24 January 2019, the Tribunal invited the applicant to provide further information in relation to his current enrolment and the genuine temporary entrant criterion (CB 63-66).
On 6 and 7 March 2019, the applicant provided further information to the Tribunal (CB 74-110). This information included a confirmation of enrolment which indicated that the applicant was enrolled in a Bachelor of Exercise and Sport Science.
On 21 May 2019, the applicant’s migration agent forwarded a written submission to the Tribunal (CB 126-134).
On 22 May 2019, the applicant attended a hearing before the Tribunal (CB 135-137). The applicant provided two documents to the Tribunal at the hearing: a letter of reference from an Australian business and an offer of employment at the India Sports Promotion Academy (CB 138-139)
On 19 September 2019, the Tribunal invited the applicant to comment on the following information that it considered would be a reason for affirming the delegate’s decision (CB 141-143):
The particulars of the information are:
•Recent checks of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment.
This information is relevant to the review because you have applied for a Student visa and the PRISMS record indicates that you are not currently studying and do not have an enrolment to study in the future.
The applicant was asked to provide any comments by 3 October 2019.
The applicant’s migration agent requested an extension until 18 October 2019 to provide a response (CB 144-145).
The Tribunal granted an extension until 9 October 2019.
On 9 October 2019, the applicant’s migration agent responded as follows (CB 150):
To the complete shock of the applicant he has found that he has been suspended from the education institute, Notre Dame University, in which he was enrolled since July 2018.The applicant was sent Termination Notice on 10th July 2019 by post ONLY. The University had his e-mail address also which was used by them to communicate with him.
The University did not use this e-mail address to notify him. The applicant has paid the fee to the University for this semester and has also been attending classes till second week of September 2019 till the time he received a letter from AAT inquiring about his CoE status.
The student is in the process of appealing against this termination to the The University of Notre Dame. The University normally takes 10 working days to respond to this appeal.
Kindly grant an extension of 15 working days to enable the applicant to hear back from the University regarding his appeal and respond to your request. I would really appreciate if the request of extension is granted and the applicant is given a fair chance to respond with the entire information that will be available to him. This would also be according to principle of natural justice
On 11 October 2019 at 12.46pm, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 161-164). (As noted below, the Tribunal’s decision was not actually sent to the applicant until 14 October 2019).
On 11 October 2019 at 1.32pm, the Tribunal sent the following email to the applicant’s migration agent in relation to his request for an extension of time dated 9 October 2019. That email provided (CB 154):
The Member has considered your request for a further extension of time, and notes that the Tribunal’s letter was not, as you have suggested, an inquiry as to your Confirmation of Enrolment (CoE) status. It put you on notice that the Tribunal had received information that your CoE had been cancelled (not, as you have put it, that your enrolment has been suspended), and sought your comments or response. You have had ample time to seek information from your University, and to comment or respond. Your latest request for an extension of time Is not in substance a request for time in which to comment or respond on the information before the Tribunal. It is, rather, a request for time in which to rectify your CoE status. The Tribunal’s role in this matter is not to facilitate your enrolment - it is to conduct a merits review of the Delegate’s decision.
For these reasons, the Member has decided to refuse your request.
The applicant’s migration agent responded to that email on 11 October 2019 at 4.04pm as follows (CB 155) (without alteration):
This is to state that the Invitation to comment e-mail received on 19th September was regarding the following information
Recent check of the Provider Registration and International Student Management System (PRISMS) indicate that you do not hold a current Confirmation of Enrolment
I wish to point out that the applicant was not informed by the University regarding any cancellation of his CoE and has not received any notification to date. The AAT expects the applicant to comment on something about which he has no information.
I wish to point out that it is difficult and unfair to expect the applicant to comment on any information about which he has no knowledge. The applicant has not been communicated anything regarding his CoE status from the University. The applicant cannot check PRISMS himself as that is not accessible to him.
The applicant has been visiting the University admin office for the last few days .It was here that he was handed over the Termination notice .He was advised to contact the Dean to confirm his CoE status and termination.
This is what the applicant has done and is awaiting response from the University regarding his CoE status.
Kindly allow this extension so that the applicant can respond regarding his CoE status after getting complete information from his university .If it has been a mistake on part of the University his CoE could reinstated.
I again request the member to kindly grant an extension so that the applicant gets a fair chance to respond to the quesry regarding the CoE status. This is also according to principal of natural justice and will also ensure that the applicant has provided all information before the decision is taken on his application.
I would really appreciate if the member can kindly look into the exceptional circumstances of the applicant on compassionate grounds and according to natural justice and grant an extension of time to respond.
On 14 October 2019, the Tribunal sent the applicant its decision/written reasons.
On 4 December 2019, the applicant filed an application for judicial review application in this Court. That application was lodged outside of the 35 day time period specified in s 477(1) of the Migration Act 1958 (Cth) (the “Act”). It was filed 19 days late. Accordingly, in order to pursue his substantive application in this Court, the applicant must first obtain an order extending the time within which to do so.
PROCEEDINGS IN THIS COURT
The applicant appeared before the Court without legal assistance.
The materials before the Court include the application for judicial review dated 4 December 2019, a Court Book numbering 167 pages (marked as Exhibit 1), an affidavit of the applicant dated 28 February 2020, a document titled “Policy – Student Appeals” from the University of Notre Dame (marked as Exhibit 2), an affidavit of Thomas Morgan Lettenmaier affirmed 24 February 2020, an outline of written submissions filed by the Minister on 20 January 2021 and an outline of written submissions filed by the applicant on 22 February 2021.
The Court notes that Exhibit 2 and the applicant’s written submissions were not filed in accordance with the orders made by a Registrar on 15 January 2020. Nonetheless, the Court has taken them into consideration.
This matter was heard on 24 February 2021. Following the hearing of the matter and after judgment had been reserved, the applicant sought to file further documents in the Court Registry. He also provided those documents to Chambers. The Court notes that this matter has been on foot for over one year. The applicant has had ample opportunity to file further documents. He did not do so until after judgment had been reserved. The applicant did not indicate at the conclusion of the hearing that he had further materials to rely upon. This is despite being asked if there was anything further he wished to say to the Court. In these circumstances, the applicant was advised that no leave had been granted to file any further materials and that the Court would not consider any further documents.
As noted, the applicant requires an extension of time within which to commence his judicial review application.
In his judicial review application filed on 4 December 2019, the applicant requested (in writing) more time. The applicant’s “ground” for requesting an extension was as follows:
I have been unwell for a considerable period of time and under tremendous stress. Evidence of medical visits to the GP are attached. I have not been able to get legal assistance. Kindly condone the delay
On the basis of the above, it is clear that s 477(2)(a) of the Act has been satisfied.
In an affidavit affirmed 28 February 2020, the applicant provided a written statement, various medical certificates and medications scripts. This affidavit satisfies r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth).
What remains is for the applicant to satisfy the Court that it is “in the interests of the administration of justice” for an extension of time to be granted.
Noting that the applicant was unrepresented, the Court explained to him that, when considering whether to grant an extension of time, the Court generally looks at, but is not restricted to assessing, the following factors:
(a)length of delay and prejudice;
(b)whether the explanation for the delay is adequate; and
(c)whether the proposed substantive application for judicial review has merit.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344)
The applicant was asked to address these three factors. His oral submissions and the Minister’s submissions in response are discussed below.
CONSIDERATION – SHOULD AN EXTENSION OF TIME BE GRANTED?
Delay and Explanation
The delay in this matter is 19 days. The Court does not consider this to be a significant amount of time.
In the applicant’s affidavit, he provides a statement which provides:
I was granted Initial Student (Class TU subclass 573) visa offshore on 16 July 2013, which was valid until 30 August 2016. I enrolled at Murdoch University to pursue an undergraduate degree course in Cyber Forensics. I found the course very difficult and could not progress well. I then changed the course to Network Security. However the progress was not adequate.
I am keen basketball player and had represented the Murdoch University in the sport and had, received accolades for the same. It seemed to me that my real interest was in this field and requested the Murdoch University to change my course which they refused and instead cancelled my CoE.
At this point of time I was very depressed regarding the outcome of this course. However due to my interest in the field of Sports, I decided to study a course in Sports and applied for Student (Temporary) (Class TU) Student {subclass 500} visa on 14 December 2016. This visa was refused on GTE grounds and was appealed at AAT.
During this time I continued studying at Notre Dame and had completed semester one and had started semester two. When I was informed by AAT that my enrolment had been cancelled by the University I was shocked. The cancellation was not communicated to me by the University by anymeans. For me to know about the cancellation from AAT was a big shock.
I was very sick at that time and could not visit the university personally .They did not respond to my e-mails and did not give me explanation of the reason for cancellation of CoE without any warning. I still do not understand the reason of cancellation. I went into psychological depression and could not think straight. I wrote to the University and appealed the decision to revoke the cancellation of my CoE. I also wrote to AAT to provide me time to get response from the University but the AAT did not give me sufficient time and affirmed the decision.
After that I went into feelings of helplessness and did not know what to do. I was suffering from symptoms of severe flu which exacerbated and I went into a state of depression. I was ashamed to tell even my family. The thought of going back to my home country without completing my education was very depressing for me.
I did not know the next step of applying to FCC or who could assist me. I was waiting for the reply from the University of Notre Dame and attach it to my court application, which I did not receive, during which the time period of applying lapsed. Finally I applied to FCC by getting some information from the internet and asking some friends.
Kindly accept my application at the FCC and exempt the time lapsed due to my health circumstances and the fact that I did not have legal representation. I would much appreciate if I can get the time extension to represent the case to FCC due to jurisdictional error by the AAT.
The applicant’s explanation appears to be that:
(a)he suffered mental health difficulties after the Tribunal refused his visa;
(b)he was unable to get legal assistance and did not know how to apply to the Court; and
(c)he was waiting for documents from the university to attach to his application.
At the hearing, the applicant explained that he was representing himself and he was unclear about what was required of him.
The annexures to the applicant’s affidavit indicate that between 8 May 2019 and 31 October 2019 the applicant was certified as unfit for work or study on a number of occasions for short periods of time. One certificate indicates that the applicant has been “struggling with low mood… is currently finding it difficult to concentrate”. The medication scripts (both dated October 2019 and November 2019) appear to be “mood based prescriptions”.
On the evidence before the Court, the Court accepts that the applicant was suffering from mental health issues in the period immediately prior to his visa being refused by the Tribunal and after. The Court accepts that this provides an adequate explanation for the applicant’s delay in filing his application for judicial review in this Court.
The applicant also indicates that he did not have legal assistance. The Court is sympathetic. Unfortunately, there is no right to legal assistance in judicial review proceedings: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4].
The applicant also states he did not know “how to apply” to this Court for review and only did so after getting “information from the internet and asking some friends”.
The applicant was represented by a migration agent in the proceedings before the Tribunal. It is unclear why the applicant did not seek information from that agent about his rights of review. It is also unclear why the applicant did not “search the internet or ask friends” immediately after receiving the Tribunal’s decision.
Despite the above, and bearing in mind the applicant’s mental health issues at the relevant time, the Court considers the applicant’s ignorance about what his options were to be entirely credible. Some weight in the applicant’s favour is thus attached to the explanation provided.
Finally, the applicant states that he was waiting for documents from the university. This arguably contradicts his statement that he did not know how to lodge an application or what to do next. Placing that aside, there was nothing to prevent the applicant from lodging his application within the relevant time period and then providing documents at a later date. The application did not require the applicant to provide anything beyond the Tribunal’s decision.
Accordingly, the Court does not consider any need to “wait” for documents from the university to be a satisfactory explanation.
While the Court does not accept parts of the applicant’s explanation, it considers that the applicant’s mental health were and are such that some weight in his favour should be attached to his explanation for filing his substantive application 19 days late.
Accordingly, the short length of the delay and the provision of an adequate explanation for that delay weigh in favour of granting an extension of time.
Prejudice
The Minister does not claim any prejudice if the extension of time is granted.
While the absence of prejudice does not require that an extension be granted, it does weigh in favour of doing so.
Merits
It will rarely be appropriate or in the interests of the administration of justice to grant an extension of time where there is no reasonable prospects of the substantive application succeeding. Whether there is a reasonable prospect of success is to be determined at a reasonably impressionistic level: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391. The applicant need only present a reasonably arguable case of error.
In order to determine whether any reasonably arguable error arises, it is necessary to provide a summary of the Tribunal’s decision.
The Tribunal’s decision is four pages long and spans 19 paragraphs.
The Tribunal began by identifying the type of visa the applicant had applied for (at [1]-[2]). It then noted that the delegate had refused the visa on the basis that cl 500.212 of the Regulations had not been met and confirmed that the applicant had attended a hearing on 22 May 2019 (at [3]-[5]).
The Tribunal then explained that the criteria for the visa were set out in Part 500 of schedule 2 of the Regulations (at [7]). It continued:
8. The issue before the delegate in the present case was whether the applicant was a genuine temporary entrant for the purposes of cl.500.212. At the date of hearing, the applicant was enrolled in a Bachelor of Exercise and Sport Science at the University of Notre Dame Australia (the University). That course is a registered course of study of the purposes of cl.500.211 (a) of Schedule 2 to the Regulations. However, following hearing it came to the Tribunal’s attention that the applicant had ceased to be enrolled in that course, and was not enrolled in any registered course of study at al I. The Tribunal confirmed this by obtaining a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). As a result, the issue before the Tribunal became whether, at the time of decision, the applicant met the enrolment requirement for a student visa provided in cl.500.211(a) of Schedule 2 of the Regulations.
The Tribunal then summarised the requirements of cl 500.211 of the Regulations and noted that cl 500.211 required the applicant to be enrolled in a course of study at the time of the Tribunal’s decision (at [9]-[10]).
The Tribunal then detailed the contents of the s 359A invitation that was sent to the applicant (at [11]-[12]).
The Tribunal continued:
13. On 2 October 2019 at 10.06 p.m. the Tribunal received an email message from the applicant’s representative seeking an extension of time in which to respond to or comment on the information contained in the Tribunal’s letter dated 19 September 2019 until 18 October 2019. That email submitted that “the applicant has been unwell for the last few days and has not been able to go to his education institution to study and find out about his CoE status.” It also submitted that the applicant had sent the University “an email asking for clarification regarding his CoE status”, but that he had not received any communication from the University regarding cancellation, nor any answer to his email. Copies of a medical certificate and the applicant’s email to the University were provided. However, the email was undated and the medical certificate only stated that the applicant was unfit for work from 2 October 2019 to 3 October 2019 inclusive. The Tribunal took the view that no sufficient justification for an extension of time of such length had been provided, and that the nature of the enquiry in question did not appear to require it. The Tribunal extended the date for the applicant’s response to 9 October 2019.
14. On 9 October 2019 the applicant’s representative sent the Tribunal a further email message, in which she stated (amongst other things) that the applicant was appealing to the University against the termination of his enrolment, and that he sought an extension of time of 15 working days to allow that appeal to be dealt with. The Tribunal declined to grant any further extension, on the basis that the applicant had had ample time to seek information from the University and to respond to or comment on the information contained in the Tribunal’s letter, and that in substance his request for a further extension was a request for time to rectify his enrolment status and not a request for further time in which to comment or respond
15. Under cl. 500.211 of Schedule 2 to the Regulations, an applicant for a student visa who is neither a Foreign Affairs student, nor a Defence student (as those terms are defined in r.1.03 of the Regulations), nor seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis, must be enrolled in a registered course of study as a condition for the grant of a student visa: cl. 500.211 (a). This criterion must be met at the date of decision. The regulation is couched in mandatory language, and does not give any decision maker, including the Tribunal, power or a discretion to dispense with the requirement.
16. The latest communication the Tribunal has received from the applicant through his representative confirms that he is not currently enrolled in a registered course of study, as stated in his PRISMS record. There is no evidence to the contrary of any kind before the Tribunal.
17. Therefore, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study. Accordingly, cl.500.211 is not met.
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (at [18]-[19]).
Proposed Grounds of Review
The proposed “grounds of review” in the applicant’s application for judicial review are as follows:
1. The decision of the AAT delegate to affirm the visa refusal by the AAT is affected by jurisdictional error due to breach of principles of procedural fairness.
2. The decision of the Department of home affairs and AAT to refuse applicant visa is affected by jurisdictional error because the procedures that were required by law to be observed in connection with the making of the decision were not observed.
3. Delegate failed to consider relevant factors into consideration while taking the decision. The delegate due to his decision on providing insufficient time for material evidence, has not considered the mental sickness and health circumstances of the applicant in totality.
4. The decision of the AAT delegate to affirm the visa refusal by the Department of Home Affairs is affected by jurisdictional error because breach of principles of natural justice.
5. The delegate failed to observe the procedures required by law in connection with making the decision.
In his written submissions filed 22 February 2021, the applicant states:
I have applied to the FCC for judicial review of the AAT decision primarily on the ground that the AAT had failed to accord me natural justice and procedural fairness when it refused to defer making its decision until after the outcome of my request for a review by the Pro Vice Chancellor Academic of the University for unfair termination from the University impacting my CoE status
Noting the remarks of the Federal Court (in particular in Bala v Minister for Immigration and Border Protection [2019] FCA 600) that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that, in relation to an extension of time request, when determining whether the substantive application has merit, the Court needs to look at whether there is a reasonably arguable case that the Tribunal engaged in jurisdictional error. It was stressed that the Court need not be satisfied that there was, in fact, an error. Rather, it need only be satisfied that there is a reasonable argument that the Tribunal fell into jurisdictional error.
The Court further explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap and that for migration decisions, 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 (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: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“Li”); Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] (“Singh”).
The Court also explained that it cannot undertake a “merits review” of the Tribunal’s decision in assessing whether his substantive application has a reasonable prospect of success: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Against this background the applicant stated that he was given a lack of time to respond and provide the information required. He stressed that it only took ten days for the appeal at the university and the Tribunal should have waited ten days. The Court will address these submissions below.
Consideration
To the extent that the grounds of review refer to the “Department” or the “delegate” (who the Court assumes to be the Minister’s delegate), they have no prospect of success. The delegate’s decision is not within the jurisdiction of this Court: the Act, s 476(2) and (4).
Grounds 1, 2, 4 and 5 of the proposed judicial review application all argue that the applicant was denied procedural fairness (by the delegate or the Tribunal).
Ground 3 of the proposed judicial review application takes issue with the Tribunal not granting an extension of time for the applicant to respond to the invitation – stressing that the Tribunal did not take into account the applicant’s health when determining to proceed to make a decision.
In effect, all of the applicant’s grounds of review take issue with the conduct of the review – more specifically, the Tribunal’s decision to proceed to determine the application without waiting (as the applicant had requested). At the hearing before this Court, the applicant’s oral submissions also focussed on the Tribunal’s failure to wait.
The applicant’s written submissions also make it clear that the applicant’s central complaint is the Tribunal’s failure to adjourn the review. The applicant makes a number of references to the High Court’s case in Li (which, the applicant states, is “similar to his circumstances”) and submits as follows:
It appears from the AAT members email that he feels that there is no general obligation upon the AAT to adjourn a decision because he thought that the applicant for review i.e., me “considers” that the passage of time will allow me to rectify the CoE status and cause a visa criterion to be met. That was not true in this case. There was good reason to expect that the criterion would be met after my appeal was considered by the Pro Vice Chancellor Academic of the University. The AAT denied me what would have been, in the circumstances, a reasonable opportunity to appeal to the Pro Vice Chancellor Academic against Termination from University status and to thus acquire the enrolled status.
My migration agent had explained to the AAT the issues regarding providing a response to their query by me. The main issues were non-communication by the University to me and my inability to check PRISMS as that is only accessible by the University. The migration agent had also explained that I had been attending classes at the University and was unaware of my enrolment status till I received the email from AAT on 19th September regarding my CoE status.
After receiving the invitation to respond from AAT, I sent numerous emails to Notre Dame but did not receive any response. On a personal visit to Notre Dame on 6TH October I was handed over a letter which was dated 10 July 2019 which indicated that my status had been terminated from the University. I informed the university that I had not received any such communication and had been attending classes as usual and that this termination had not followed the due process and was illogical and unjustified.
I was then informed that I had to appeal to the Pro Vice Chancellor Academic against termination from university status. If the appeal was to be accepted I would have been considered enrolled. In any case my enrolment status would be clear only after the appeal process was duly completed and decided by the Pro Vice Chancellor Academic. It was also explained to AAT that the University normally takes 10 days to complete the appeal process as mentioned in their Students Appeal Policy.
The agent had shown the AAT that there was a fair chance of the appeal being accepted. There was no practical countervailing consideration disclosed in the AAT's reasons for refusing to defer its decision and grant extension of time. I was denied procedural fairness by AAT and that denial constituted jurisdictional error.I also submit that the decision of the AAT not to grant extension of time was unreasonable as it was not based on any balancing of the legislative objectives set out in s 353.there was an arbitrariness about it which rendered it unreasonable in the limiting sense explained in the above mentioned case. This decision was fatal to my appeal application to AAT and then grant of visa subsequently.
Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently denied procedural fairness to me.
The question before the Court is whether it is arguable that the applicant was denied procedural fairness or whether it was unreasonable for the Tribunal not to adjourn the review (or provide further time) so that the applicant could respond to the invitation to comment.
This issue arises from the invitation issued pursuant to s 359A of the Act that invited the applicant to comment on information that would be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision.
For completeness, the Court notes that the Tribunal’s invitation to comment complied with all of the procedural requirements in s 359A and s 359B of the Act. It contained clear particulars of the information which, if relied upon, would lead the Tribunal to find that the applicant did not hold a current confirmation of enrolment and thus failed to meet the requirements of cl 500.211. The Tribunal’s invitation also detailed the prescribed period of time within which to comment.
What this matter turns upon is the Tribunal’s refusal to grant the applicant an extension of time to respond to the s 359A invitation and/or to adjourn the review for a period on two separate occasions. The first request was made on 2 October 2019. The second request was made on 9 October 2019. Both requests were refused.
The First Request
The request made on 2 October 2019 was in the following terms (without alteration):
This is with reference to the Invitation to Comment received by the applicant on 19th Sept 2019.The applicant has been unwell for the last few days and has not been able to go to his education institution to study and find out about his CoE status.He has however sent Notre Dame an e-mail asking for clarifcation regarding his CoE status.He has not received any communication from them regarding cancellation nor have they replied to his e-mail yet.We are awaiting a response from them.
It is requested to kindly give us an extension of uptil 18th October to submit a response so that the applicant has sufficient time and is fit enough to find out about hjs CoE status from hjs education institution.Enclosed is the medical certificate of the applicant and the e-mail sent to Notre Dame
Attached was an undated email from the applicant to the university and a medical certificate stating that the applicant was “unfit for work/study” from 2-3 October 2019.
On 7 October 2019, the Tribunal responded:
The Member has considered your request and is not willing to allow an extension of time until 18 October 2019, as no sufficient justification has been provided for an extension of that length and the nature of the enquiry your client wishes to make does appear require it.
The Member is prepared to extend the time for your client's response to Wednesday, 9 October 2019.
In its reasons for decision, the Tribunal explained:
13. On 2 October 2019 at 10.06 p.m. the Tribunal received an email message from the applicant’s representative seeking an extension of time in which to respond to or comment on the information contained in the Tribunal’s letter dated 19 September 2019 until 18 October 2019. That email submitted that “the applicant has been unwell for the last few days and has not been able to go to his education institution to study and find out about his CoE status.” It also submitted that the applicant had sent the University “an email asking for clarification regarding his CoE status”, but that he had not received any communication from the University regarding cancellation, nor any answer to his email. Copies of a medical certificate and the applicant’s email to the University were provided. However, the email was undated and the medical certificate only stated that the applicant was unfit for work from 2 October 2019 to 3 October 2019 inclusive. The Tribunal took the view that no sufficient justification for an extension of time of such length had been provided, and that the nature of the enquiry in question did not appear to require it. The Tribunal extended the date for the applicant’s response to 9 October 2019.
The Tribunal provided 7 additional days (instead of the 16 requested).
On the basis of the information that was before the Tribunal, the Court considers that it was open to the Tribunal to grant the applicant only seven additional days to provide the information (as opposed to the 16 requested).
Here, the migration agent indicated that the applicant had already sought “clarification” and was awaiting a response. His medical certificate stated that he was unfit for (in effect) only one day (given that the extension request was received at 10.06pm on 2 October 2019). Accordingly, the applicant had six days to receive the response and five days to attend at the university personally to progress his request for “clarification”.
It cannot be said that no reasonable decision-maker would not have considered that seven additional days (as opposed to 16) was sufficient to make inquiries and obtain clarification (as the agent had indicated that that was all that the applicant was seeking to do). In fact, as indicated by the email dated 9 October 2019 (which is considered in further detail below), the additional seven days was sufficient for the applicant to obtain and provide the “clarification” needed about his enrolment status. That is, the agent advised the Tribunal on 9 October 2019 that the applicant’s enrolment had been cancelled and his enrolment status was, therefore, that he did not hold an enrolment.
No arguable case arises from the Tribunal’s decision to grant only seven additional days.
Further, to the extent that ground 3 states that the Tribunal did not consider the applicant’s “health” in totality, this raises no reasonably arguable case. The Tribunal clearly did take into account the applicant’s health issues in considering the first request for an extension. It noted that the medical certificate only stated that the applicant was unfit between 2 and 3 October 2019. Accordingly, the extent of the applicant’s health issues was confined to a finite period and did not justify a longer “extension”.
The Second Request
On 9 October 2019, the applicant requested an additional 15 working days. The applicant’s request stated (without alteration):
Thank you and the member for extending the time to respond to the Request for information.
To the complete shock of the applicant he has found that he has been suspended from the education institute,Notre Dame University, in which he was enrolled since July 2018.The applicant was sent Termination Notice on 10th July 2019 by post ONLY. The University had his e-mail address also which was used by them to communicate with him.
The University did not use this e-mail address to notify him. The applicant has paid the fee to the University for this semester and has also been attending classes till second week of September 2019 till the time he received a letter from AAT inquiring about his CoE status.
The student is in the process of appealing against this termination to the University of Notre Dame. The University normally takes 10 working days to respond to this appeal.
Kindly grant an extension of 15 working days to enable the applicant to hear back from the University regarding his appeal and respond to your request. I would really appreciate if the request of extension is granted and the applicant is given a fair chance to respond with the entire information that will be available to him. This would also be according to principle of natural justice.
It is this request that the applicant refers to in his written submissions to the Court.
The Court notes that Exhibit 2 supports the applicant’s statement in the request above that the university normally takes 10 days to respond to an appeal. While the Court accepts this is the case, Exhibit 2 was not before the Tribunal and, therefore, cannot be used to demonstrate jurisdictional error on the part of the Tribunal. Accordingly, Exhibit 2 is given no weight.
This second request would extend the period for the applicant to respond to the s 359A invitation until 30 October 2019.
The Tribunal explained its reasons for refusing the request in its reasons for decision as follows (without alteration):
14. On 9 October 2019 the applicant’s representative sent the Tribunal a further email message, in which she stated (amongst other things) that the applicant was appealing to the University against the termination of his enrolment, and that he sought an extension of time of 15 working days to allow that appeal to be dealt with. The Tribunal declined to grant any further extension, on the basis that the applicant had had ample time to seek information from the University and to respond to or comment on the information contained in the Tribunal’s letter, and that in substance his request for a further extension was a request for time to rectify his enrolment status and not a request for further time in which to comment or respond
The Tribunal also sent correspondence explaining its reasons which stated as follows (without alteration):
The Member has considered your request for a further extension of time, and notes that the Tribunal’s letter was not, as you have suggested, an inquiry as to your Confirmation of Enrolment (CoE) status. It put you on notice that the Tribunal had received information that your CoE had been cancelled (not, as you have put it, that your enrolment has been suspended), and sought your comments or response. You have had ample time to seek information from your University, and to comment or respond. Your latest request for an extension of time Is not in substance a request for time in which to comment or respond on the information before the Tribunal. It is, rather, a request for time in which to rectify your CoE status. The Tribunal’s role in this matter is not to facilitate your enrolment - it is to conduct a merits review of the Delegate's decision.
For these reasons, the Member has decided to refuse your request.
In essence, the Tribunal refused the adjournment on the basis that the applicant had had ample time to respond to the s 359A invitation. In fact, the applicant was no longer seeking an extension of time to respond to the invitation, but to cure his lack of enrolment. In effect, the Tribunal is saying “enough is enough”.
As noted, the applicant places some reliance on Li. However, Li does not create a “factual checklist” to be applied when determining if the exercise or non-exercise of a discretion is reasonable: Singh at [42]. Whether the Tribunal has acted unreasonably is invariably fact dependent.
The Court is satisfied that the Tribunal’s refusal to provide the applicant an additional 15 days to provide further evidence raises no arguable case of error.
Here, the time periods requested were continually lengthened by not insignificant periods. The applicant first requested an extension until 18 October 2019. He then requested an extension until 30 October 2019. The review had been on foot since May 2017. The applicant had asked for, and been granted, an adjournment of the hearing of the matter. The applicant had also been provided an extension of time to respond to the invitation to provide information (dated 24 January 2019) and the s 359A invitation. The Tribunal had exercised the power under s 363(1)(b) on a number of occasions at the request of, and for the benefit of, the applicant. The applicant had been given multiple indulgences in order to present his case. The Tribunal did not act “unfairly”.
Here, contrary to the applicant’s written submissions, there was nothing before the Tribunal to suggest that the “appeal” the applicant had made to the university about his enrolment was going to be successful. The PRISMS record states that the applicant’s enrolment was cancelled due to “unsatisfactory course progress”. The applicant made no submissions as to why this was incorrect. Beyond an assertion that he attended classes, the applicant did not explain why the reason provided for the cancellation was incorrect. In his written submissions to this Court, again, the applicant gives no explanation as to why his appeal to the university would be successful. Instead, he just stated there was “good reason” and a “fair chance” he would be successful without any explanation as to why.
In Singh, it was explained that unreasonableness requires a careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Here, it is noted that the applicant’s PRISMS record indicated that the applicant’s enrolment had also been cancelled on a previous occasion for “unsatisfactory course progress”. This was not a first time occurrence or something that appeared out of character in relation to this applicant such that there might be some reason to suspect that there might well be an error.
It was also not indicated in the correspondence when the appeal to the university would be resolved. While the agent indicated that the university would “respond” in 10 days, this term is ambiguous. It does not suggest that any further clarification or an “answer” would, in fact, be provided. The use of the term “respond” provided no certainty for the Tribunal. Hence, to the extent that the applicant’s written submissions state that it was explained to the Tribunal that the university normally takes 10 days to complete the appeal process, this is incorrect.
The Court recognises that Exhibit 2 does, in fact, state that the review would be determined in 10 days. However, this material was not before the Tribunal. Accordingly, it can carry no weight.
Further, the purpose for which the extension of time had been granted on the first occasion (in response to the request made on 2 October 2019) had been satisfied (i.e., the applicant had received “clarification” that his enrolment was cancelled – which was all the request on 2 October 2019 sought additional time for).
The request for additional time made on 9 October 2019 related to “a new reason”. It was no longer for the purposes of “obtaining information”. Rather, the Tribunal (correctly, in the Court’s view) considered that any extension was for the purpose of helping the applicant meet the enrolment criteria. The Tribunal is under no obligation to assist the applicant or adjourn the review until such time as the applicant has exhausted all opportunities to meet the relevant criteria: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41.
As noted in Minister for Immigration & Border Protection v Pandey [2014] FCA 640 at [51], while this Court might have approached this matter differently than the Tribunal, this does not indicate that the Tribunal acted unreasonably or unfairly. While a different Tribunal may have provided the applicant an additional 15 days, what this Tribunal did was entirely within its area of decisional freedom. The review had been on foot for two years. The correspondence requesting an adjournment lacked sufficient information about when a decision would be made and what the applicant considered would be the outcome of the university appeal or what reasons he believed would ensure that his appeal was successful.
The judicial review application fails to identify a reasonable prospect of success. The Court has otherwise reviewed the Tribunal’s decision and is not satisfied that an arguable case of error arises.
This weighs against an extension of time being granted.
Conclusion – Extension of Time
While the minimal delay in filing the substantive application, the provision of an adequate explanation for that delay and the lack of any prejudice weigh in the applicant’s favour, the lack of arguable merit in the judicial review application, on balance, requires that the extension of time application be dismissed.
CONCLUSION
The applicant has failed to satisfy the Court that it is in the interests of justice for an order to be made pursuant to s 477(2)(b) of the Act.
Accordingly, the application for an extension of time is refused.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 25 February 2021
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