5.2 Disposition of the application
37 In relation to the length and explanation of the delay, I accept the Minister's submission that the delay of 35 days was not insignificant and that the applicant has not provided any sufficient explanation for the delay. While there was a delay in the publication of the primary judge's written reasons which may be relevant to an applicant's delay in some cases, I accept the Minister's submission that it does not provide an adequate reason in this proceeding. This is because the application was filed before written reasons were published and once the written reasons were published, the applicant did not seek leave to file an amended draft notice of appeal.
38 As to prejudice to the Minister, the Minister accepts that the grant of an extension of time would not cause the Minister any prejudice. However, that factor is essentially neutral given that a lack of prejudice to the first respondent alone is not a sufficient reason to grant the application.
39 I now turn to the merits of the draft notice of appeal. In the draft notice of appeal, the applicant raises one ground of appeal, being that the primary judge erred in exercise of his discretion in refusing the applicant's adjournment application and in failing to give sufficient weight to relevant considerations. The applicant further pleads by way of particulars that:
(a) he had not been provided a copy of the reasons for the judgment as at the time of filing;
(b) his "explanation for not being able to proceed with the hearing because his health suffering from was refused without any consideration";
(c) the grounds in his application for judicial review before the FCC could only be argued/presented through the assistance of a lawyer;
(d) the primary judge failed to appreciate that "Grounds 1 - 2 raised the Substantive Ground of Review and instead treated Grounds 1 - 2 separately"; and
(e) he was "unwell at the date of hearing and [i]n the absence of the legal representation through which the [applicant] could have presented legal arguments in support of his two grounds, the learned judge finding that no jurisdictional error is made out by the application is per se an error".
40 In addition, the applicant submits the Tribunal erred in finding that he was not enrolled in a course at the relevant time. This was because the applicant claims that he had paid the relevant college fees and had been attending classes at that time.
41 The Minister filed written submissions, prior to being served with the draft notice of appeal, and made oral submissions in response to the draft notice of appeal.
42 As a preliminary issue, the Minister submits that the application should be characterised as an application for an extension of time to seek leave to appeal from an interlocutory decision of the FCC, being the primary judge's decision to refuse to grant an adjournment. However, I consider that the application should be properly understood as an application for an extension of time to appeal from the final orders of the primary judge which the applicant contends were affected by appealable error because the primary judge, in failing to grant the adjournment, failed to accord procedural fairness to the applicant.
43 I do not consider that the draft ground of appeal has sufficient prospects of success to justify the granting of an extension of time for the following reasons.
44 First, in relation to the primary judge's refusal to grant an adjournment, the application challenges the exercise of a judicial discretion. The question is therefore whether an error of the kind identified in House v The King has been established, such as whether the primary judge acted "upon a wrong principle" or whether there has been a failure to properly exercise the discretion inferred from a decision which was "unreasonable or plainly unjust": House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). I do not accept the contention in particular (b) that the primary judge did not consider the applicant's claim that his mental health meant that he could not proceed with the hearing. The primary judge considered the request for the adjournment at [21]-[25] of his reasons. The adjournment was refused because there was no medical evidence to support the applicant's claims about his mental health, the applicant's submission that he was unable to meaningfully participate in the hearing was regarded by the primary judge as inconsistent with the applicant's conduct, and the merits of the substantive application did not in the view of the primary judge warrant the granting of an adjournment: PJ at [24]-[30]. I do not consider that the primary judge's decision was unreasonable or unjust in the relevant sense, or otherwise raised any error of a kind referred to in House v The King.
45 Second, in relation to particular (a), I do not consider the delay by the primary judge in providing written reasons, in itself, amounts to an appealable error: ELR18 v Minister for Home Affairs [2019] FCA 1583 at [45] (Snaden J). Further, there is no prejudice to the applicant in this proceeding as the primary judge's written reasons were published on 16 September 2020, over two years before the hearing of this application.
46 Third, in relation to particular (c), while the applicant claimed that he was not capable of "defending" his case by himself (affidavit of Georgina Ellis affirmed on 22 March 2023 p 4), the applicant did not seek an adjournment because he lacked legal representation. As such, the primary judge was not required to consider this issue. Further, the applicant did not have a right to legal representation in the FCC.
47 Fourth, in relation to particular (d), I accept the Minister's submissions that the primary judge recognised there was an overlap between grounds 1 and 2 of review below. Ground 1 alleged that the Tribunal erred in affirming the delegate's decision "which was itself affected by jurisdictional error and accordingly of no effect in law" while ground 2 alleged that the Tribunal "failed to accord procedural fairness". The primary judge at [32] considered ground 1 of the review and found that "[o]n the face of the material before the Court, the Tribunal complied with its statutory obligations in conducting the review and the applicant had a real and meaningful hearing before the Tribunal". The primary judge then considered ground 2 at [33] and found "on the face of the material before the Court, as referred to above, the Tribunal complied with its statutory obligations in the conduct of the review" (emphasis added). Therefore, the primary judge was cognisant of the relationship between the grounds of review.
48 Fifth, the Tribunal considered the applicant's claim that he continued to attend classes between June 2016 and June 2017 (the relevant period) at [17]-[21] of its decision. In summary, the Tribunal did not find the applicant's evidence in support of his claim that he continued to attend classes over the relevant period to be plausible and did not consider that it supported a finding that the applicant was a genuine student. In reaching that view, the matters taken into account by the Tribunal included the following: the applicant's response to an email from the World College Group evidenced that the applicant was aware his enrolment was cancelled; the applicant enrolled in alternative courses between April and September 2016 which it was unlikely he would have done if he had been attending classes for the Advanced Diploma of Business until October 2016; and the letter which the applicant provided from the Perth College of Business and Technology in relation to his enrolment in an Advanced Diploma of Hospitality Management was ambiguous and inconsistent with the Provider Registration and International Student Management System (PRISMS) records, which the Tribunal preferred. On the basis of these reasons, the Minister submits and I accept that the Tribunal's finding that the applicant had not been attending classes during the relevant period was open to the Tribunal and was not illogical or irrational.
49 It follows that the proposed appeal lacks sufficient prospects of success to warrant the grant of an extension of time. It would not therefore be in the interests of justice to grant the extension of time and the application must, therefore, be dismissed.