consideration
20 The Court's power to grant an extension of time is discretionary. In considering whether leave should be granted, the Court will usually consider whether the delay has been adequately explained; whether there would be any prejudice to the respondent in defending the proceeding caused by the delay, although the mere absence of prejudice to a respondent is not enough to justify the grant of an extension; and the merits of the substantive application: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J).
21 I turn now to consider the matters raised by the applicant in support of her application. The applicant's delay in filing her application is 11 days. While that period is relatively brief, in my opinion, her evidence does not adequately explain the delay. She says that it was caused by the health of her children and her own pregnancy. However, save for the two invoices referred to below, the medical evidence provided does not correspond with the period between 11 November 2016 and 5 December 2016, being the 21 day period during which a notice of appeal should have been filed, nor does it provide any reasons for the applicant having been precluded from filing her appeal within the required period. The evidence shows that her children were suffering from eczema prior to 11 November 2016 and that as at late September 2016 the applicant was pregnant, but that there were no abnormalities with her pregnancy at that time.
22 There are two invoices that indicate that the applicant's children each attended a homeopath in the period during which she was required to file her appeal. The applicant submitted from the bar table that those visits were for treatment for her children's eczema as they were not responding to "western treatments". However, it is unclear how those attendances would have precluded her from filing her appeal within time based on the evidence that is before me.
23 Even if I were to accept the applicant's reasons for the delay, I am not satisfied that there is any merit in any proposed appeal.
24 The applicant's draft notice of appeal identifies two proposed grounds of appeal. In the first ground the applicant says that she disagrees with the primary judge's judgment, that the Department failed to put to her the "exceptional circumstances" and that the Tribunal misunderstood her "exceptional circumstances". The primary judge found at [26] of his reasons that the Department was not bound or required to advise an applicant in connection with the relevant criteria applicable to the grant of a visa or advise on the evidence appropriate to satisfy those criteria. The applicant's ground of appeal does no more than to disagree with that finding, which was open to the primary judge.
25 The applicant's second ground of appeal states that the Tribunal and the primary judge were aware that she did not have "independent enquiries" or a lawyer or a migration agent to provide her with advice and that she believes that it was the Department's duty to reply to her email and provide an explanation because she was not represented. This is not a proper ground of appeal. It does not identify an alleged error in the judgment of the primary judge. The fact that the Tribunal and the primary judge may have been aware or were aware that the applicant did not have a lawyer or migration agent to advise her does not identify any appellable error in the judgment of the primary judge or provide a proper basis for a ground of appeal. While the applicant believed that it was the duty of the Department to reply to her email, as the primary judge found at [26] and as I have already observed, that was not the case.
26 In her oral submissions the applicant also referred to the primary judge's reference at [23] of his Honour's reasons that she was an intelligent, articulate and educated person and that, despite that, she did not know what was meant by "exceptional reasons". It is the case that at [23] of his reasons the primary judge said:
As I have said above, the Applicant is an intelligent, articulate and educated person and is quite able herself to understand the expression "exceptional reasons".
27 However, as the Minister submitted, the primary judge's conclusion that there was no jurisdictional error in the Tribunal's decision was not based on this observation. Rather, the primary judge came to that view for other reasons to which I have already referred, including that the applicant knew by the time of the Tribunal hearing that the delegate had refused her application for a visa because she had not provided "exceptional reasons"; that the transcript of the Tribunal hearing established that the applicant agreed with the Tribunal member that she understood that she was required to show "exceptional reasons"; and that, in any event, the Department was not bound or required to advise the applicant in relation to the criteria for the visa, including what was required by "exceptional reasons".
28 In oral submissions the applicant also referred to her pregnancy at the time of filing the visa application, said that that had affected her mental state and said that she would have hoped that the Department would take that into account as "exceptional reasons". Based on the Tribunal's decision, evidence of that nature does not appear to have been before the Tribunal or the Department. In its decision record the Tribunal referred to the submissions that had been made by the applicant at [4]-[5]. Those submissions related to the course that the applicant intended to undertake, her family history, the history of her own studies, her current life in Australia and her intention to return to Uzbekistan after completion of her studies and contribute to her country's health system. There is no reference to the applicant's pregnancy at the time of the filing of the application.
29 The applicant has not identified any arguable grounds of appeal. Accordingly, there is no utility in granting an extension of time and the application for an extension of time should be dismissed.