Vo v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 447
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 447
File number: MLG 314 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 20 May 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – application for an extension of time – lengthy delay – no prejudice – inadequate explanation provided – no arguable case of jurisdictional error – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 36, 357A, 359, 359A, 359AA, 359B, 359C, 360, 363, 363A, 379A, 379C, 477 & 494C and Division 5 of Part 5
Migration Regulations 1994 (Cth), regs 1.03 & 4.17 and cll 500.111, 500.211-500.218 & 500.311
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gallo v Dawson [1990] HCA 30
Haque v Minister for Immigration and Citizenship [2010] FCA
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
Kajal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 280
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
Manna v Minister for Immigration and Citizenship [2013] FCA 400
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v Kim [2014] FCA 390
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZABP v Minister for Immigration & Border Protection [2015] FCA 1392
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZNZL v Minister for Immigration and Citizenship [2010] FCA 621
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 134 Date of hearing: 1 May 2024 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Ms P Nirmaleswaran Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 314 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DO KIM NGAN VO
First Applicant
TRUC QUYNH NGUYEN
Second Applicant
QUYNH HAN DI VO
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The application for an order pursuant to s 477(2) of the Migration Act 1958 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The first and second applicants are citizens of Vietnam (Court Book (“CB”) 2-5). They are husband and wife respectively (CB 3-5 & 25). The first and second applicants “arrived in Australia in 2016 or earlier” (CB 64).
The third applicant is (minor) daughter of the first and second applicants. She was born in Victoria in October 2017 (CB 5-6 & 29).
On 24 April 2019, the first applicant applied for the Student (Temporary) (Class TU) (Subclass 500) visa (the “visa”) the subject of this proceeding (CB 1-24). The second and third applicants were included in that visa application as part of the first applicant’s family unit (CB 4-6).
Following the lodgement of his visa application, the first applicant provided a statement of purpose (CB 34-35) in which he explained that he had decided to “expand [his] knowledge of leadership and management by enroll[ing in] Diploma and Advanced Diploma of Leadership and Management courses at Brighton Institute of Technology” (CB 34).
A statement of purpose from the second applicant and other supporting documents were also provided to the Department of Home Affairs (the “Department”) (CB 36-42).
On 24 June 2019, the Department asked the first applicant to provide more information for himself and his family in support of his visa application (CB 44-54).
No response was provided by or on behalf of the applicants (CB 65).
On 9 September 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 62-68). The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily as required by cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 66). The delegate was also not satisfied that the second and third applicants satisfied cl 500.311 in Schedule 2 of the Regulations (requiring them to be members of the family unit of a person who had been granted a student visa) (CB 67-68).
On 16 September 2019, the applicants sought review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 69-71). In that review application, the applicants did not appoint a migration agent or an authorised recipient to assist them. Instead, the applicants requested that all correspondence be sent to the first applicant and provided an email address so that that could occur (CB 70-71).
On 4 February 2021, the Tribunal invited the applicants to provide information in relation to their review application (pursuant to s 359 of the Migration Act 1958 (Cth)) (the “Act”) (CB 79-86). In particular, the Tribunal correspondence stated (CB 80-81):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
Accordingly, you will need to provide sufficient information to satisfy us that you meet both of these visa requirements and you are now invited to give, in writing, all relevant information about the course(s) of study the main applicant is undertaking and their entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information form which you can access by clicking on the link below. The information requested may be given by completing the online form and clicking ‘Submit’ on the Declaration page.
…
The written information requested in the Request for Student Visa Information form should be received by 18 February 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 18 February 2021, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 18 February 2021 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
No response was provided by or on behalf of the applicants (CB 94).
On 28 May 2021, the Tribunal undertook a search of the Provider Registration and International Student Management System (“PRISMS”) records relating to the first applicant (CB 87).
On 31 May 2021, the Tribunal invited the applicants (pursuant to s 359A of the Act) to comment on or respond to the information contained in the PRISMS records (CB 88-90). In particular, that invitation stated (CB 89-90):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that the main applicant, Mr Do Kim Ngan Vo, does not hold a current Confirmation of Enrolment in a course of study.
…
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 15 June 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
Again, no response was provided by or on behalf of the applicants (CB 94).
On 19 June 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 93-97).
On 10 February 2022, the applicants applied to this Court for judicial review of the Tribunal’s decision.
Unfortunately, that application was filed 199 days outside of the 35-day time limit specified in s 477 of the Act.
In the circumstances, the applicants require an extension of time to pursue the substantive proceeding.
This judgment addresses whether an extension of time should be granted. For the reasons that follow, the Court has concluded that an extension of time should not be granted.
CONSIDERATION
The materials before the Court include the application for judicial review (including the application for an extension of time within which to make that application) and supporting affidavit filed by the applicants on 10 February 2022, a court book numbering 100 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 17 April 2024.
The Court notes that on 10 May 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The first applicant appeared before this Court (via video link) on 1 May 2024 without legal representation. He was assisted at the hearing by a Vietnamese interpreter. The Court confirmed with the first applicant that he had received a copy of the Minister’s material outlined above.
The Court also confirmed with the first applicant that he would be speaking on behalf of his wife and child. Noting that the child was a minor, the Court made an order appointing him as litigation guardian for the third applicant (the minor child).
Noting that the first applicant was not legally represented, the Court explained to him that the statutory timeframe within which an applicant can seek judicial review in this Court is 35 days from the date of the relevant decision.
The decision in this matter was made on a Saturday. The 35-day time period would otherwise have ended on Saturday, 24 July 2021. In the circumstances, the substantive application is deemed to have been due to be filed by “the next day that is not a … Saturday …” (being Monday, 26 July 2021): s 36(2)(b) of the Acts Interpretation Act 1901 (Cth). The application was not filed within that time period.
As noted above, the application in this matter was filed 199 days outside of the requisite time period.
The Court explained to the first applicant that, despite the late filing of a substantive application for judicial review, an applicant can ask the Court for an extension of time within which to file his or her substantive application.
In this regard, the Court notes that, pursuant to s 477(2) of the Act:
(a)an applicant must make an application for an extension of time in writing, detailing why the extension should be granted; and
(b)the Court may extend the time in which to file the application where the Court considers that it is in the interests of the administration of justice to do so.
Here, the applicants requested an extension of time in writing and provided “grounds” explaining why they believe that the extension should be granted. Section 477(2)(a) of the Act is thus satisfied.
In relation to s 477(2)(b) of the Act, the Court must consider whether it is in the interests of the administration of justice to grant an extension of time.
Noting that the first applicant appeared without any legal assistance, the Court explained to him that the factors which may be considered in this regard are not limited. However, as per the reasoning in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (and confirmed in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Tu’uta Katoa”) at [12]), the most common factors considered by the Court in matters of this sort include:
(a)the length of delay;
(b)whether the respondent (or any third parties) would suffer any prejudice due to the delay;
(c)whether the explanation for the delay is adequate; and
(d)whether the proposed substantive application for judicial review has “merit”.
In relation to (d) above, it was further explained that when determining if a proposed application has “merit”, the Court will do so at a “reasonably impressionistic level” only: MZABP v Minister for Immigration & Border Protection [2015] FCA 1392. Importantly, an applicant need only identify an “arguable case” (which may not yet be fully developed) that the Tribunal fell into jurisdictional error. In this regard, the Court will itself remain astute and alert to the possibility of a reasonably arguable error which may warrant an extension being granted: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1391 (“MZAIB”).
The Court invited the first applicant to highlight anything he considered relevant to the applicants’ request for an extension of time. The first applicant’s responses are discussed in the consideration that follows.
Length of delay
The Court notes that an extension of time is not granted as a right: Gallo v Dawson [1990] HCA 30 at [2] per McHugh J. Further, the limitation periods specified in the Act are the “general rule” and any grant of an extension of time is an exception to that rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553.
As outlined above, the delay in this matter is 199 days.
This delay is lengthy (being six and a half months) and weighs against granting an extension of time.
Prejudice
In written submissions filed in this Court, the Minister conceded that there is no prejudice to the Minister (other than the issue of costs).
The Court agrees.
This weighs in favour of granting the extension of time.
Explanation
The Court notes that the longer the delay, the more satisfactory the explanation for that delay needs to be: Jess v Scott (1986) 12 FCR 187 at 195, per Lockhart, Sheppard and Burchett JJ; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [14], per Farrell J and Tran v Minister for Immigration & Border Protection [2014] FCA 533 at [38], per Wigney J.
In their judicial review application, the applicants provide nine “grounds” for the extension of time which, relevantly, provide as follows (without alteration):
1.I have been depressed and so stressed because of the Covid-19 situation due to living in the city that went through the longest lockdown in the world and I was not paying attention to anything else.
2.I found out about the decision recently after I was able to access the email account that the Tribunal had been sending their correspondence to. I was not able to access my emails for some time.
3.The Tribunal did not contact me via telephone, text message or via post. I feel disadvantaged because further effort to contact me was not made by the Tribunal.
4.I was already overwhelmed by the process since my visa was refused.
5.Due to this visa refusal, I feel like I have very much let down my wife and my daughter.
6.The Minister would not be prejudiced if an extension of time were granted and there are no public interest considerations which weigh against the grant of an extension of time.
7.The Tribunal has committed a jurisdictional error and thus it would be against the interests of the administration of justice to deny me an application for an extension of time for the Court to review my matter.
8.It is currently impossible for me to lodge an application where I can layout all of my arguments, however, I do believe that my case has merit which is arguable, and it is not necessary for me at this stage to positively establish that my application will succeed at the final hearing.
9.The Court should use its discretion with regard to all the circumstances.
The first applicant raised similar concerns in the affidavit filed with the judicial review application, essentially identifying that he had not been able to access his email address, that he had been overwhelmed by the visa refusal process and that he had been stressed because of the COVID-19 situation and lockdowns.
In oral submissions before this Court, however, the first applicant stated that he had “used a migration agent to handle all the paperwork” and had “paid them money to do it all”. The first applicant said that he had assumed that the agent would also make the application for him. He also said that he had “not checked [his] email for a really long time” and did not know that this had not been done.
To the extent that the first applicant claims that he had been “overwhelmed” by or otherwise had “little knowledge of the application process” and was unaware of the timeframe within which such an application must be made, the Court sympathises. However, ignorance is no excuse in matters of this sort. In this regard, the Court references comments made by the Federal Court in SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, as follows:
38.In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay. Accordingly, in the present case, it is fair to say that there is no satisfactory explanation for the delay of almost eight months.
Applicants seeking review of a decision made by the Tribunal must take all necessary steps to ensure that they do what is required of them. The applicants in this matter does not appear to have done so. There is no evidence, for example, that the applicants sought assistance from the Court or the Tribunal in relation to what was required of them.
The first applicant also claimed (in oral submissions to this Court) that he had used a migration agent to “handle all of the paperwork” and had assumed that the agent would submit the application to this Court on his behalf.
The Court notes that there is no evidence in the Court Book (or otherwise before this Court) which indicates that the applicants were assisted with the Tribunal review by a migration agent. In particular, it is noted that the applicants requested that all Tribunal correspondence be sent “to the review applicant” and they referenced the first applicant’s contact details in their Tribunal review application (including an email address which seemingly belonged to the first applicant) (CB 70-71).
The Tribunal notified the applicants of its decision on 21 June 2021 by sending a letter and a copy of its decision to the first applicant by email using the email address provided in the applicants’ Tribunal review application (CB 91-100).
Further, the Court notes that the Tribunal provided the applicants with an information sheet when notifying them of its decision (CB 98-100). This was sent to the applicants via email (using the email address provided by the applicants in their Tribunal review application) on 21 June 2021 and relevantly provided (CB 99):
Review of decisions
Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.
The applicants were on notice that that an application for review would need to be filed in the then Federal Circuit Court of Australia within 35 days of the Tribunal’s decision.
For the reasons outlined above, the Court does not consider that the explanation provided by the applicants is satisfactory to justify such a lengthy delay.
This weighs against granting an extension of time.
Merits
Arguably, the most critical factor for consideration when determining if an extension of time ought to be granted is generally whether the proposed substantive application, viewed at an impressionistic level only, has any “arguable prospect of success”.
In this regard, the Court references the High Court’s decision in Tu’uta Katoa as follows (citations excluded):
17.French J’s observation in Seiler cannot be applied to the operation of s 477A(2) without regard to the important fact that the power considered by his Honour did not require the state of satisfaction set out in s 477A(2)(b). Even so, it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
18.However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.
Noting that the first applicant in this matter was unrepresented, the Court gave him an opportunity to outline any concerns that he might have in relation to the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court is whether there is an arguable case that the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining whether there is an “arguable case”, viewed at an impressionistic level, that the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that he was wrong to not respond to the Tribunal’s emails. However, the first applicant told the Court that he was concerned that he did not have an opportunity to appear in front of the Tribunal and they simply “cancelled” the visa application. When asked by the Court why he did not respond to the Tribunal’s emails, the first applicant explained again that he had paid a migration agent and had assumed that they would handle all of the communications on his behalf.
At the conclusion of the hearing, the first applicant asked the Court if he was able to provide “some information about [his] family that [he] was not able to present to the Tribunal before”. The Court explained to the first applicant that the Court is not able to have regard to material of that sort if it was not before the Tribunal.
The first applicant’s oral submissions, to the extent that they address an arguable case of error, will be considered by the Court below.
The Tribunal’s decision
In determining whether there is an arguable case of error, it is useful to first detail the Tribunal’s decision.
The Tribunal’s decision is six pages in length and spans 33 paragraphs.
The Tribunal began by outlining that the applicants had applied for the visas on 24 May 2019 and that a delegate of the Minister had refused to grant the applicants those visas on 9 September 2019 (at [1]-[2]).
The Tribunal explained that it wrote to the first applicant (pursuant to s 359(2) of the Act) and invited him to provide information to the Tribunal (including information regarding enrolment). The Tribunal noted that no response had been received and confirmed that it was satisfied that the invitation had been properly sent to the first applicant at his nominated address. The Tribunal also noted that, because the first applicant had failed to respond within the requisite time period, the applicants were not entitled to appear at a hearing before the Tribunal and the Tribunal had no power to permit them to do so (at [3]-[6]).
The Tribunal went on to consider whether information that the first applicant met the requirements of the Act and Regulations was likely to be forthcoming, whether the first applicant had had a fair opportunity to provide that information and whether it should adjourn the review (pursuant to s 363(1)(b) of the Act) to allow the first applicant additional time to provide further information (considering relevant case law in that regard) (at [7]-[8]).
The Tribunal then explained that it had also written to the first applicant regarding adverse information and asked that he “provide further information as to current enrolment in a course of study by 15 June 2021”. The Tribunal noted that the first applicant did not respond to that request and the Tribunal considered that the first applicant had had a “fair opportunity to provide relevant information”. Accordingly, the Tribunal decided not to exercise its discretion to adjourn the review (pursuant to s 363(1)(b) of the Act) and proceeded to make a decision “having regard to the information it ha[d] before it” (including information provided by the applicants to the Department). In doing so, the Tribunal also explained that it was not for the Tribunal to make an applicant’s case and that an applicant must satisfy the Tribunal that the requirements of the Act and Regulations have been met (at [9]-[11]).
The Tribunal explained the criteria for the grant of the visa and noted that the primary criteria (as set out in cll 500.211 to 500.218 in Schedule 2 of the Regulations) must be satisfied by at least one applicant. The Tribunal outlined that the determinative issue before the Department was whether the first applicant met the genuine temporary entrant criteria but noted that the evidence before the Tribunal indicated that the first applicant was not currently registered in a course of study (as required by cl 500.211 in Schedule 2 of the Regulations). The Tribunal detailed the relevant definitions of “course of study” (as set out in cl 500.111 in Schedule 2 of the Regulations) and “registered course” in reg 1.03 of the Regulations. The Tribunal also explained the significance of the enrolment criterion and noted that relevant evidence must be provided to demonstrate that cl 500.211 in Schedule 2 of the Regulations had been met (setting out the legislative provisions in that regard) (at [13]-[20]).
The Tribunal again confirmed that it had written to the applicants (on 4 February 2021 and pursuant to s 359(2) of the Act) and asked the first applicant to provide sufficient information to satisfy the Tribunal that he was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student. The Tribunal noted that that correspondence informed the first applicant that “not being enrolled in a registered course of study may be a reason, or part of a reason, for the Tribunal affirming the decision under review”. On that basis, the Tribunal was satisfied that the first applicant had been given written notice that the determinative issue before it was “proof of enrolment in an approved course of study”. The Tribunal also noted that the applicants did not respond to the request for information (at [21]-[25])
The Tribunal confirmed again that it had provided the first applicant with adverse information (on 31 May 2021 and pursuant to s 359A of the Act) in the form of information from a search of the first applicant’s PRISMS records which indicated that he did not hold a current confirmation of enrolment (“COE”) in a course of study. The Tribunal noted that the first applicant did not provide a current COE to the Tribunal or otherwise respond to the request (at [26]-[28]).
The Tribunal found that, “despite multiple requests”, the first applicant had not provided a current COE or proof of enrolment in an approved course of study and there was no evidence before it that the first applicant was so enrolled. On that basis, the Tribunal was not satisfied that the first applicant met requirements of cl 500.211 in Schedule 2 of the Regulations. The Tribunal was also not satisfied that the second or third applicants met the requirements set out in cl 500.311 in Schedule 2 of the Regulations (at [29]-[30] & [32]).
On the basis of the above, the Tribunal affirmed the decision refusing to grant the applicants the visas (at [31] & [33]).
Proposed application for judicial review
The application for judicial review (filed by the applicants on 10 February 2022) contains two proposed “grounds of review” as follows (without alteration):
1.The failure of the Tribunal to provide me with an opportunity to be heard deprived my family and I of the benefit of an essential step in proceedings thus, leading to a failure of natural justice.
a.The Tribunal had my telephone number and my postal address on record.
b.During a pandemic it is reasonable that the Tribunal ought to have made further inquiries into whether I had received the emails.
c. The Tribunal should have adjourned its decision.
d.The Tribunal erred by failing to consider whether I had received the correspondence it has alleged were sent to me.
e.The Tribunal failed to acknowledge or consider that I was an unrepresented litigant, and I did not know that my matter was proceeding at the time.
f.The Tribunal proceeded to make a decision without considering whether I had received any of its correspondence and without affording me an opportunity to attend a hearing.
2.The Tribunal failed to afford procedural fairness and failed to consider the consequences of the decision.
a. The Tribunal erred by failing to properly review the matter.
b. The Tribunal failed to carry out a meaningful review.
c.A pandemic is exceptional and compelling circumstances outside of my control.
d. The Tribunal’s decision was otherwise unreasonable.
The affidavit (affirmed by the first applicant on 7 February 2022 and filed in this Court on 10 February 2022) essentially reiterates the concerns outlined above and also states as follows (without alteration):
35.I should have been able to provide submissions or attend the hearing, the Tribunal erred by failing to properly review to marry and thus failed to carry out a meaningful review.
…
41.Since I did not provide the Tribunal with further information, the Tribunal conducted their review without me present. It is unfair and unjust for the decision to be made without me being present, especially because I do not believe the Tribunal properly assessed my matter.
42.I believe that the Tribunal should have at least considered the merits of my case. It is unfair to decide on my application without properly assessing the information in the Department’s file as well as my own submissions.
Having considered all of the materials before the Court (including the applicants’ proposed grounds of review, the information contained in the first applicant’s affidavit and the first applicant’s oral submissions before this Court) and noting that the applicants were not represented in this matter, the Court has interpreted the applicants’ concerns as broadly as possible (as per the principles in MZAIB).
On that basis, the Court considers the applicants to raise the following concerns:
(a)whether the Tribunal failed to provide the applicants an opportunity to be heard;
(b)whether the Tribunal erred by failing to invite the applicants to attend a hearing before it;
(c)whether the Tribunal failed to consider material contained in the Department’s files;
(d)whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information; and
(e)whether the Tribunal failed to afford the applicants procedural fairness or natural justice.
These issues will be considered below.
Whether the Tribunal failed to provide the applicants an opportunity to be heard
The applicants express concerns that they were not given an opportunity to be heard or to otherwise provide submissions to the Tribunal.
As previously explained by this Court in Kajal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 280, the Tribunal has a discretionary power, pursuant to s 359 of the Act, to seek information that it considers may be relevant to the review, however, there is no duty placed upon the Tribunal (by s 359 of the Act) to do so. That section of the Act relevantly provides as follows:
359 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
As set out above, an invitation sent pursuant to s 359 of the Act must be given to the applicants by one of the methods specified in s 379A of the Act, which relevantly provides as follows:
379A Methods by which Tribunal gives documents to a person other than the Secretary
Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Transmission by fax, email or other electronic means
(5)Another method consists of a member or an officer of the Tribunal transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review; or
(e)if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the member or officer.
…
In this matter, the Tribunal wrote to the applicants on 4 February 2021 and invited them to provide additional information (pursuant to s 359 of the Act) (CB 79-86) confirming the first applicant’s enrolment in a registered course of study and addressing the genuine temporary entrant criterion. That correspondence relevantly stated (CB 80-81):
As you applied for the visas on the basis of undertaking a course of study in Australia, it is a requirement of the visa for one of you (the main applicant) to be:
•enrolled in a registered course of study; and
•a genuine applicant for entry and stay as a student.
…
The written information requested in the Request for Student Visa Information form should be received by 18 February 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you cannot provide the information by 18 February 2021, you may ask us for an extension of time in which to provide the information. If an extension of time request is made, it must be received by us by 18 February 2021 and it must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
That invitation letter was sent to the applicants via email (on 4 February 2021) using the email address provided to the Tribunal by the applicants in their Tribunal review application (dated 16 September 2019) (CB 71 & 79). That nominated email address was the last email address provided by the applicants in connection with the review: s 379A(5)(d) of the Act.
The applicants did not provide any additional information to the Tribunal in response to that request before the 18 February 2021 deadline (or at all). Nor did they request an extension of time within which to do so (CB 94).
Section 359A of the Act requires the Tribunal to put certain adverse information to an applicant for comment or response (subject to the Tribunal’s power to use, as an alternative, s 359AA of the Act). Section 359A of the Act relevantly provides as follows:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
(5)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
In this matter, the Tribunal invited the applicants (on 31 May 2021 and after conducting a search of the PRISMS records relating to the first applicant on 28 May 2021 (CB 87)) to comment on or respond to the information contained in the PRISMS records (pursuant to s 359A of the Act) (CB 88-90). That invitation letter relevantly stated (CB 89-90):
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•A recent check of the Provider Registration and International Student Management System (PRISMS) indicates that the main applicant, Mr Do Kim Ngan Vo, does not hold a current Confirmation of Enrolment in a course of study.
…
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 15 June 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
…
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The letter was sent to the applicants via their nominated email address (on 31 May 2021) (CB 88). As set out above, that nominated email address was the last email address provided by the applicants in connection with their Tribunal review: s 379A(5)(d) of the Act.
Again, the applicants did not respond to that request (CB 94).
The applicants also raise concerns about being unable to access their email account or otherwise not receiving communications sent to them by the Tribunal via email. They also seem to suggest that the Tribunal ought to have posted documents to them or attempted to telephone them.
As set out above, transmission of documents to the applicants via email is a valid method of distribution specified in s 379A of the Act. Whilst the applicants did provide both a postal address and a mobile phone number in their review application (and dispatching documents by prepaid post is another method specified in s 379A of the Act), the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship [2010] FCA at [13] & [62] per Jacobson J.
Further, where a document is provided by electronic means (including by email, as was the case here), the person is taken to have received the document at the end of the day on which the document was transmitted: s 379C(5) of the Act. Hence, the applicants here were taken to have received the Tribunal’s invitation letters at the end of the day on 4 February 2021 and 31 May 2021 respectively. Further, if the document is sent via one of the methods set out in s 379A of the Act, the person is taken to have received that document at the time specified in s 379C of Act, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36] per Barker J (in relation to s 494C of the Act which is in similar terms).
The Court is satisfied that the applicants were properly invited to provide or comment on information pursuant to s 359 and s 359A of the Act.
There was also no obligation on the Tribunal to attempt to contact the applicants by telephone to ensure that they had received the Tribunal correspondence.
No arguable case of jurisdictional error arises in this regard.
The issue of whether the Tribunal was required to invite the applicants to appear at hearing before it will be addressed by the Court below.
Whether the Tribunal erred by failing to invite the applicants to attend a hearing before it
As outlined above, the applicants take issue with not being able to attend a Tribunal hearing.
As previously explained by this Court in Holkoree v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1152, the Tribunal is required (by s 360(1) of the Act) to invite an applicant to appear before it to give evidence and present arguments. However, there are some exceptions to this requirement, which are set out in ss 360(2) and (3) of the Act, as follows:
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Relevant to this matter is s 360(2)(c) of the Act.
In this regard, s 359C(1) of the Act is of note. That section relevantly provides:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
As outlined above, on 4 February 2021, the Tribunal invited the applicants to provide information to the Tribunal (CB 79-86). That invitation letter:
(a)invited the applicants to give the Tribunal (in writing) information relevant to the first applicant’s current enrolment status and addressing the genuine temporary entrant criterion: ss 359(2) and 359B(1) of the Act;
(b)was sent to the applicants’ via email (being a method specified in s 379A of the Act) at the last known email address provided in connection with the review: s 359(3) of the Act; and
(c)gave the applicants 14 days within which to respond, being the prescribed period set out in reg 4.17(4) of the Regulations: s 359B(2) of the Act.
The invitation complied with the relevant requirements set out in ss 359 and 359B of the Act.
The applicants do not appear to dispute that they did not provide any information as requested in the invitation.
On that basis alone, s 359C(1) of the Act was enlivened. This meant that the Tribunal was not required to invite the applicants to attend a hearing (as the exception in s 360(2)(c) of the Act applied).
Further, because s 360(2) of the Act applied, by virtue of s 360(3) of the Act the applicant was not entitled to appear before the Tribunal. Section 363A of the Act explains what is to occur if an applicant is not “entitled” to appear. Section 363A states:
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person
The operation of ss 359C, 360 and 363A of the Act has been described as having a “cascading effect” which is triggered by an applicant’s failure to provide information in response to a request from the Tribunal (made pursuant to s 359 of the Act).
Put simply, the applicants were not invited to attend a hearing as they were no longer entitled to attend a hearing. The Tribunal had no power to allow the applicants to attend a hearing: Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 (“Hasran”) at [29]. If the Tribunal had invited the applicants to attend a hearing, it would have done so in excess of its power and, accordingly, exceeded its jurisdiction.
This was made clear to the applicants in the invitation to provide information, which relevantly stated (CB 81):
If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
The applicants were, accordingly, on notice of what would occur if they did not provide a response.
The Tribunal did not fall into jurisdictional error by failing to invite the applicants to attend a hearing and give them a chance to present their case. The applicants lost that right.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal failed to consider material contained in the Department’s files
The applicants also raise concerns that the Tribunal failed to consider information in the Department’s files.
This concern fails on a factual level.
The Tribunal, in its written reasons, notes that it had regard to all of the information before it, including materials previously given to the Department. In particular, the Tribunal states:
10.Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the review applicant more time. In these circumstances, the Tribunal has decided to proceed to make a decision having regard to the information it has before it, including the information previously provided by the review applicant to the Department.
The Court also notes that the issue before the Tribunal was whether the first applicant was enrolled in a course of study as required by cl 500.211 in Schedule 2 of the Regulations.
Clause 500.211 in Schedule 2 of the Regulations is one of the “primary criteria” for the grant of the visa and, as such, is a “time of decision” criterion.
This is clear from the Regulations which, relevantly, provide as follows:
500.2—Primary criteria
Note:The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b)if the application is made in Australia—the applicant is 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;
(c)if the applicant is a Foreign Affairs student—the applicant has the support of the Foreign Minister for the grant of the visa;
(d)if the applicant is a Defence student—the applicant has the support of the Defence Minister for the grant of the visa.
As outlined above, the first applicant was required to be enrolled in a course of study at the time of the Tribunal’s decision.
As outlined above, a search of the PRISMS records relating to the first applicant conducted by the Tribunal on 28 May 2021 indicated that the first applicant was not enrolled in a course of study and that his latest enrolments had been cancelled in June 2019 (CB 87).
Any previous information the applicants may have provided the Department in relation to enrolment would not have assisted them in evidencing that, at the time of the Tribunal’s decision, the first applicant was enrolled in a course of study.
No arguable case of jurisdictional error arises in this regard.
Whether the Tribunal erred by proceeding to make a decision on the review without taking any further action to obtain information
The applicants also seem to suggest that the Tribunal acted “unfairly” in proceeding to make a decision in their case.
The Court disagrees.
As outlined above, the applicants did not respond to the Tribunal’s invitation letters (sent pursuant to s 359 and s 359A of the Act). As a result of the applicants’ failure to respond to the initial letter (sent on 4 February 2021 pursuant to s 359 of the Act), the applicants lost any entitlement they might otherwise have had to appear at a hearing before the Tribunal.
The Court notes the comments made by the Full Court of the Federal Court in Hasran in this regard, as follows:
25.In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M.
26.As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it.
27.Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
28.This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
29.The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
30.As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A.
31.Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.
Whilst Hasran dealt with the failure to respond to a letter sent under s 359A of the Act, the principles apply equally to this case (where the applicants failed to respond to an invitation under s 359 of the Act: see s 360(2)(c) and s 359C(1) of the Act). Further, the applicants in the present matter also subsequently failed to respond to an invitation letter sent pursuant to s 359A of the Act (as was the case in Hasran).
Unfortunately, because the applicants did not respond to the Tribunal’s invitation letter, the applicants were not entitled to appear before the Tribunal and the Tribunal did not have the power to permit the applicants to do so: s 363A of the Act and Hasran at [28]-[29].
On the basis of the legislative provisions and authority above, the Court is satisfied that no arguable case of error arises in relation to the Tribunal proceeding to determine the matter on the materials before it.
Whether the Tribunal failed to afford the applicants procedural fairness or natural justice
To the extent that the applicants suggest that the Tribunal failed to afford them procedural fairness, the Court also disagrees.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters of this sort and the Tribunal is obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal has done so in this case and notes that:
(a)the Tribunal exercised its power under s 359 of the Act (on 4 February 2021) to invite the applicants to provide information (CB 79-86);
(b)the applicants did not respond to that invitation and consequently lost their entitlement to appear at a hearing before the Tribunal (CB 94);
(c)the Tribunal also exercised its power under s 359A of the Act (on 31 May 2021) to invite the applicants to comment on or respond to information (CB 88-90);
(d)the applicants did not respond to that invitation (CB 94);
(e)the Tribunal notified the applicants that, in addition to being satisfied that the first applicant was a genuine applicant for entry and stay as a student (being the issue before the delegate), it also needed to be satisfied that the first applicant was enrolled in a registered course of study (as required by cl 500.211 in Schedule 2 of the Regulations). Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter; and
(f)there is no evidence before this Court to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicants procedural fairness in this matter.
No arguable case of jurisdictional error arises in this regard.
Conclusion regarding merits of the substantive application
The applicants’ proposed grounds of review and the first applicant’s affidavit and oral submissions before this Court, assessed at an impressionistic level, do not identify any arguable case of jurisdictional error on the part of the Tribunal.
This weighs heavily against the granting of an extension of time.
CONCLUSION
The lack of a satisfactory explanation for the lengthy delay and the lack of any arguable case of jurisdictional error on the part of the Tribunal (judged at a reasonably impressionistic level) are such that it is not in the interests of the administration of justice for the Court to grant the applicants an extension of time in this matter.
The application for an extension of time is, accordingly, refused.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 May 2024
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