THIS COURT
11 Mr Patel now proceeds by way of an extension of time for leave to appeal supported by an accompanying affidavit and a draft notice of appeal.
12 On the application before me this morning, after some confusion on his part as to whether or not there was an affidavit in support, Mr Patel accepted that he did rely on the affidavit in support. The terms of the affidavit really go to the question of being mistaken as to the belief that similar rules apply in this Court to the Federal Circuit Court in relation to the amount of time required for an extension. Mr Patel thought that he had 28 days and his affidavit makes the point that there is no prejudice to the Minister. He contacted the Federal Circuit Court after the decision was made asking for a copy of the reasons of the primary judge and was delayed in filing the materials by circumstances beyond his control. He sought an opportunity to engage counsel which, of course, he has had since 4 October 2016, and an opportunity to present his case by giving oral testimony.
13 The relevant principles in relation to an extension of time are well recognised. It is necessary to take into account whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal and any prejudice to the respondent as well as the merits of the proposed appeal. The decisions dealing with those principles are well recognised, such as Hunter Valley Developments Proprietary Limited v Cohen (1984) 3 FCR 344 (at 348-349).
14 The Minister opposes the application. The circumstances are that the appeal would only be six days out of time if an extension were granted and the Minister accepts, as I think must be the case, that that in itself is not a significant time. The Minister contends that the explanation by Mr Patel for the delay is not adequate. That can be put to one side for the moment. Clearly, there is no express prejudice to the Minister, other than the general prejudice of delay and administrative process and the prejudice to the public in that delay.
15 As to the merits of any appeal, the grounds are really grounds of the application but are designed to reflect what would be the grounds of appeal:
1. That pending the preparing of Reasons of Judgement by the [primary judge] [Mr Patel] be granted leave to appeal.
2. That leave be granted to amend the Application for leave filed herein once the reasons of judgement of the learned Judge are made available to [Mr Patel].
3. That Her Honour the [primary judge] erred in not holding that the Tribunal made jurisdictional error as it failed to consider clause 572.223(1)(a) Migration Regulations 1994
Particulars
a. The Tribunal erred in not considering cl 572.223(a)
b. The Tribunal erred in not applying the facts when considering the cl 572.223
c. The Tribunal erred in concluding that [Mr Patel] was "circumventing the migration program" without any basis in law and fact.
4. Her Honour the [primary judge] erred in not holding that the Tribunal made jurisdictional error as it failed to consider all the criteria mentioned in Direction 53 made under Section 499 of the Migration Act.
5. Her Honour the [primary judge] erred in not looking closely at the structure of Tribunal's reasons in order to assess whether it truly has had regard to all the mandatory criteria applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.
6. The appellant's application clearly raises an arguable case.
16 The first two grounds are procedural. Ground 3 contends a jurisdictional error in failing to consider cl 572.223(1)(a) of the Regulations, in not applying the facts when considering the Regulation and in erring in concluding that Mr Patel was circumventing the migration program without any basis in law and fact.
17 Ground 4 is that the primary judge erred in not holding that the Tribunal made jurisdictional error as it failed to consider all the criteria mentioned in the Ministerial Direction made under s 499 of the Act.
18 Ground 5 is that the primary judge erred in not looking closely at the structure of the Tribunal's reasons in order to assess whether it had truly had regard to all the mandatory criteria, applying Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140. Ground 6 is a submission.
19 Ground 3 and ground 4 are the substantive grounds and they challenge the conclusions reached by the primary judge in the application made to that Court. Ground 5, in not looking closely at the structure of the Tribunal's reasons, is a new ground. Although there is no explanation for raising the ground now, given that Mr Patel is unrepresented, I would permit that new ground to be raised if leave is granted and note that there is no objection by the Minister to that ground being raised.
20 There is no material filed in support of any of these grounds and no oral or written submissions have been made in support of the grounds. No attempts have been made to expand or develop upon any of the substantive grounds of appeal, notwithstanding orders to that effect. I have, nonetheless, considered the grounds in the context of the decision of the primary judge. In my view, there is no error demonstrated in the way the primary judge addressed the Tribunal's decision.
21 Her Honour was correct to conclude that there was nothing in the reasons which would suggest the Tribunal failed to consider all claims and evidence advanced by Mr Patel. There is no apparent basis advanced today or otherwise for concluding that the finding that Mr Patel was circumventing the migration program was not a finding of fact open to the Tribunal. Additionally, there is no basis to conclude that her Honour was in error in deciding that the Tribunal had appropriately considered the relevant Ministerial Direction and the Regulations. The Tribunal's decision demonstrates that this is so in assessing the claims of whether Mr Patel was a genuine student and determining whether he could satisfy the requirements of cl 572.223. As to the proposed new ground 5, there is no merit in the suggestion as to the failure to closely examine the Tribunal's reasons. The Tribunal gave adequate and proper consideration to all those matters.
22 The substantive grounds of appeal Mr Patel would advance have no merit. There was no error in the reasoning of the primary judge in finding that the decision of the Tribunal was not infected by jurisdictional error. On that basis, the application for an extension of time must be dismissed with costs and I so order.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.