Application for an extension of time
12 The applicants seek an extension of time in which to appeal from the decision of the Federal Circuit Court. In an accompanying affidavit, the Applicant complains that judgment was delivered orally on 21 October 2015. The written reasons, dated 6 November 2015, were "recently sent". The draft notice of appeal asserts the following grounds:
(1) The Tribunal failed to understand that my circumstances are exceptional and ignored the important written evidence which was not on file as a result of not being passed on by the Department.
(2) I applied for [a] student visa and my application was valid and I submitted evidence of exceptional circumstances and do believe that the outcome is unreasonable.
(3) His Honour accepted an error by the Department of Immigration in relation to the receipt of submissions and not to take this error as jurisdictional error is indeed an error in itself because if the submission was before the Tribunal at the time it would have made a different view.
13 As the Minister submits, the principles governing the exercise of the Court's discretion to grant an extension of time are well-established. The Court needs to have regard to factors withstanding the length of, and reason(s) for, the delay, the merits, or lack thereof, of the proposed grounds of appeal, and any prejudice to the other party or parties. See e.g. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 - 349. Cases that are weak on the merits ordinarily will not warrant the grant of an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at [3] - [4] per Brennan CJ and McHugh J; [66(4)] per Kirby J.
14 The period in which the applicants are out of time is relatively brief (5 days). The Applicant claims that the delay was caused by his expectation that he would receive written reasons for judgment at the time that the ex tempore judgment was delivered. The written reasons for judgment were subsequently emailed to him after he contacted the Federal Circuit Court. I accept this to be a sufficient explanation for the short delay.
15 However, the proposed grounds of appeal are unmeritorious.
16 The applicant in his short written submissions asserts in effect relevantly that the Submission Document was ignored by the Minister. That the Minister did not consider the Submission Document is accepted. He then submits that the Department and the Tribunal were in error by not concluding that his reasons provided were "exceptional".
17 There is no basis to contend that the Tribunal "failed to understand" the exceptional nature of the Applicant's circumstances, or that its decision was unreasonable. The Applicant's circumstances were, on no view, exceptional as the Tribunal correctly found.
18 The balance of the proposed grounds seek to rely upon the Tribunal's non-consideration of the Submission Document. The proposed grounds are in effect a re-iteration of Ground Four before the Federal Circuit Court.
19 The Minister submits that the applicants cannot persuade the Court that:
(1) in a realistic sense, the Submission Document itself was sufficiently cogent, substantial, consequential, or important so as to have been capable of going to the Tribunal's jurisdiction;
(2) Minister for Immigration and Border Protection v SZRKT (2013) 212 FCR 99 at [99]; [111] - [112]; the Tribunal failed to consider those matters raised in the Submission Document;
(3) any error on the part of the Secretary under s. 418(3) resulted in jurisdictional error on the part of the Tribunal.
20 The first two of these submissions are to some extent interrelated. The Applicant had undertaken part time labouring work in Fiji. Through the Submission Document, he had submitted to the Department that studying English in Australia would assist his employment opportunities in Fiji and whilst he was studying this would benefit the Australian economy.
21 The Tribunal afforded a number of opportunities to expand upon these claims.
22 The Applicant repeated to the Tribunal that studying in Australia would enhance his employment prospects in Fiji. The Tribunal put to him that his reasons did not appear exceptional, and invited further comment. The Applicant additionally submitted that he would contribute to the Australian economy. The Tribunal put to him that the economic benefits would not be sufficiently significant to constitute exceptional reasons.
23 The Applicant was afforded the opportunity to raise, and did raise, the arguments he wished to make before the Tribunal. Those arguments repeated the substance of what was set out in the Submission Document. They were considered by the Tribunal. It cannot be said that the physical Submission Document was sufficiently central, cogent and substantial as to be realistically capable of going to jurisdiction; or that the Tribunal did not consider the substance of the matters raised in the Submission Document.
24 As to the third submission, a failure by the Secretary to provide documents to the Tribunal in accordance with s 418(3) does not result in jurisdictional error on the part of the Tribunal: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103 at [38]-[39] and [64].
25 No appealable error is capable of being established.