Raza v Minister for Home Affairs

Before the Circuit Court 9 On 25 February 2016, the Applicant filed an application in the Circuit Court for judicial review and sought an extension of time pursuant to s 477(2) of the Migration Act 1958 (Cth) to file the application. His application was 15 months out of time. 10 The Applicant was represented by legal counsel in the Circuit Court. 11 On 5 June 2019, the primary judge refused the application for an extension of time on the bases that the delay was significant, the Applicant provided no adequate explanation for the delay, no medical evidence to support his claimed inability to function, and no evidence in relation to any condition disabling him from filing the application for the 15 month period. The primary judge further concluded that there was insufficient merit in the proposed grounds of review to warrant an extension of time. Accordingly, the primary judge was not satisfied that it was necessary in the interests of the administration of justice to grant the application for an extension of time in which to apply for judicial review, or that it was otherwise appropriate in the exercise of his discretion to do so pursuant to s 477(2) of the Act.

Present application 12 On 3 July 2019, the Applicant filed an application in this Court with an accompanying affidavit setting out two grounds of review as follows: 1. The decision of the FCC is affected by jurisdictional error because the FCC erred in finding that it was not reasonably arguable that the Second Respondent had failed to consider important evidence, being the Applicant's grandfather's affidavit. 2. The FCC took into account prohibited irrelevant considerations, being the underlying merits of the case before the Tribunal at [75]-[76]. 13 On 23 April 2020, the Applicant filed written submissions that were drafted by a solicitor. However, the Applicant appeared before me at the hearing on 5 May 2020 without any legal representation. He was assisted by an interpreter.

Grounds contained in the Applicant's written submissions 14 The written submissions raise four grounds of review that differ from the grounds set out in the originating application: (1) Grounds 1 and 4 in the written submissions concern the Tribunal's refusal to adjourn the hearing (this was ground 2 in the application before the Circuit Court); (2) Ground 2 relates to evidence in the Applicant's grandfather's affidavit (ground 3 in the Circuit Court, and ground 1 in the originating application in this Court); and (3) Ground 3 alleges that the Tribunal failed to comply with Direction No 53. 15 The Minister filed written submissions on 28 April 2020 addressing the grounds of review raised in the Applicant's written submissions. At the hearing on 5 May 2020, counsel for the Minister did not object to reliance on the four grounds set out in the Applicant's written submissions in addition to the grounds in the originating application. The application was therefore argued on the basis of the grounds articulated in the Applicant's written submissions and the two grounds raised in the originating application. I will address each of those grounds in my reasons below.

Ground 1 of the originating application - the Tribunal's consideration of the grandfather's affidavit (Ground 2 of the written submissions) 16 Ground 1 of the originating application in this Court is the same as ground 2 in the Applicant's written submissions. This ground was raised in the Circuit Court as ground 3. 17 The Applicant claims that the primary judge erred in finding that it was not reasonably arguable that the Tribunal had failed to consider important evidence, being the Applicant's grandfather's affidavit. 18 The Applicant's long study gap, between August 2012 and October 2013, was a significant matter considered by the Tribunal in assessing whether the Applicant was a genuine applicant for entry and stay in Australia as a student: cl. 572.223(2) of the Regulations. Before the Circuit Court, the Applicant claimed that the Tribunal failed to consider important supporting evidence about the reason for his study gap, namely that his father had withdrawn financial support. He submitted that his grandfather's affidavit supported his claim that his father had withdrawn financial support. 19 The primary judge considered this ground in detail from paragraphs [59] to [74] of his reasons. His Honour observed that the Tribunal had effectively rejected the Applicant's assertion that his father had withdrawn financial support and that was the reason why the Applicant had a long study gap period. The primary judge also observed that the delegate had clearly considered the grandfather's affidavit, and that the Tribunal had in turn clearly considered the delegate's decision and the grandfather's evidence. The primary judge held that the grandfather's affidavit was, in effect, forward-looking - it provided assurance that the Applicant would be provided with financial support in the future, but did not support a finding that the Applicant's father had earlier withdrawn financial support. At [69] of his reasons, the primary judge held: I do not accept that it is reasonably arguable that the grandfather's affidavit was highly corroborative of the issue whether the father had withdrawn his financial support or of the explanation for the applicant's extended period of absence from study. The affidavit addresses the grandfather's willingness to provide financial support in the future. It did not speak to past events but to the future. 20 At [72] of his reasons, the primary judge held that the grandfather's evidence was not of fundamental importance to the Tribunal's consideration of whether the Applicant had provided an adequate explanation for the extended period of his non-enrolment in his course of study, and reiterated that the delegate had considered the grandfather's affidavit and, in turn, the Tribunal clearly considered both the delegate's decision and the grandfather's evidence. At [73], his Honour concluded that the Tribunal engaged in an active intellectual process in the assessment of whether it should be satisfied that the Applicant was a genuine applicant for entry and stay in Australia as a student. 21 The primary judge correctly held that the Tribunal did not fail to consider the Applicant's grandfather's affidavit. 22 In my view, ground 1, properly understood, is a contention that the primary judge should have come to a different view of the facts. I disagree. Were the primary judge to have done so, that would have been an impermissible review of the merits of the Tribunal's decision. In judicial review proceedings, an applicant must demonstrate that the primary judge exceeded or failed to exercise jurisdiction: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [163] (Hayne J); House v The King [1936] HCA 40; 55 CLR 499. The Applicant has failed to demonstrate any error in the primary judge's reasons in that regard.

Ground 2 of the originating application - the Circuit Court took into account irrelevant considerations 23 Ground 2 is an allegation that the Circuit Court took into account irrelevant considerations, namely the underlying merits of the case before the Tribunal. The Applicant refers particularly to paragraphs [75] and [76] of the primary judge's reasons. 24 Paragraphs [75] and [76] of the primary judge's reasons are as follows: Other matters The deliberately broad discretion conferred by s 477(2) recognises that it may be applied in relation to a wide variety of visa applications. The present is not an application for an extension of time respecting the proposed judicial review of a Protection visa. In such cases, the nature of the visa applicant's claims to protection may require close consideration of the basis on which he or she might hold a well-founded fear of persecution or a real risk of significant harm. Contrastingly, the present application is for a Student visa and arises in circumstances where the applicant: (a) has being [sic] enrolled in a series of courses since 2011; (b) has completed one short course; (c) has had his enrolment in a number of other courses cancelled; (d) acknowledged that he had been in breach of a condition of an earlier visa, and (e) can apply from outside Australia to obtain a further student visa. 25 In summary, the primary judge refers at paragraphs [75] to [76] to the broad discretion to extend time conferred by s 477(2) of the Act and its application to a wide variety of visa applications, observing that the present matter is not a protection visa application where consideration about an applicant's fear of persecution or harm may be taken into account; but a student visa. His Honour also noted the Applicant's circumstances, including his enrolment in courses, his completion of one short course, his un-enrolment in other courses, and his breach of a previous visa condition. 26 It is an established principle that if undue weight is given to an irrelevant consideration that may render a decision unreasonable. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [15], Mason J held: …in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. Of particular relevance, Mason J held, also at [15]: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. 27 In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349, Wilcox J distilled from the authorities several principles which may provide guidance to the court in exercising its discretion to extend time. These include a positive satisfaction that it is proper to extend time; whether there is an acceptable explanation for the delay; any prejudice to the respondent; and the merits of the substantive application. In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585, Mortimer J held that the words contained in s 477(2), "in the interests of the administration of justice", should not be constrained to the principles set out in Hunter Valley Developments, as the discretion is broad enough to encompass other factors. At [58], her Honour held: The presence of that phrase in the context of the Migration Act may afford a basis for other factors to be taken into account - such as the nature of the visa decision sought to be reviewed. It is a phrase broad enough to encompass factors such as the fact that without a favourable exercise of discretion, a litigant is deprived of an appeal as of right to this Court from any substantive decision made by the Federal Circuit Court. Other factors, such as case management considerations in busy jurisdictions such as the Federal Circuit Court where the interests of other litigants in the efficient and orderly progress of their own proceedings may be affected by the extension of time, may also be comprehended. What factors are taken into account, and how they are weighed, must be the subject of individual consideration in each case. 28 Ground 2 was not addressed or particularised in the Applicant's written or oral submissions. The Applicant has failed to explain why the "Other matters" referred to by the primary judge in paragraphs [75] and [76] of the reasons are irrelevant. They are referred to under a heading "Other matters" and, in my view, they are incidental observations about the application and do not appear to be factors critical to the path of reasoning of the primary judge. 29 In any event, the matters are not irrelevant considerations in the context of the primary judge's discretion pursuant to s 477(2) of the Act. Indeed, they were matters plainly relevant to the substantive merits of the application, a consideration deemed relevant to the exercise of the discretion to extend time in Hunter Valley Developments.

Grounds 1 and 4 of the Applicant's written submissions - the Tribunal's failure to adjourn the hearing 30 By grounds 1 and 4, the Applicant submits that the Tribunal misconstrued the nature of his request for an adjournment. This was argued as ground 2 in the application before the Circuit Court. 31 The Applicant submitted that his request for an adjournment of the Tribunal hearing was a request that he be given more time to prepare, because he had been unable to prepare for the hearing due to stress and concern about his mother's illness and impending surgery. He had not sought an adjournment because he had been unfit to attend the scheduled hearing. According to the Applicant, the Tribunal erroneously rejected his adjournment request on a false premise. For these reasons, the Applicant submitted that the decision to refuse his application was illogical and therefore tainted by legal unreasonableness. 32 The primary judge was satisfied that the Tribunal's reasons as a whole make it plain that it had understood the substantive basis for the Applicant's request was that he had been unable to prepare for the hearing, even though the reasons state that the Applicant had not produced evidence that he was "unfit to attend the hearing" (at [47]). The primary judge found that the Tribunal rejected the request for a postponement because the Applicant had not supplied evidence to support his claims that his mother had been unwell, that she was to undergo surgery, that he had been suffering tension or depression as a result, or that he had been so disabled that he could not prepare for or attend the hearing (at [50]). The primary judge further noted that the Applicant had not contacted the Tribunal following the scheduled hearing date to explain his non-attendance (at [51]). 33 The primary judge observed that the Tribunal was not obliged to press the Applicant to call further evidence about his psychological conditions or inability to prepare for the hearing: at [52], referring to Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575. His Honour found that it was not sufficiently arguable that the decision to refuse the application to postpone the hearing was legally unreasonable: at [53] to [56], referring to Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30] (Tracey J). The primary judge held at [55] to [56] of his reasons: If the principles stated in SZNVW are to be applied in cases where an applicant has a diagnosed impairment of which a Tribunal is unaware, in my opinion it is no less incumbent upon an applicant who seeks an adjournment on the basis of suggested incapacity to demonstrate the unfitness for which they contend. And that is so whether the unfitness goes to the applicant's ability to prepare for, or to attend, a hearing. The test of legal unreasonableness is stringent and the cases in which it will be established are rare. For the reasons above, I do not accept that it was unreasonable in the requisite sense, for the Tribunal to decline the request to postpone the hearing. Despite the suggested infelicity in the Reasons, I consider that the Reasons demonstrate an intelligible justification for deciding to refuse to do so. 34 I am satisfied that the primary judge's reasons disclose a thorough analysis of the Tribunal's decision not to adjourn the hearing, including the Tribunal's manifest understanding of the basis of the Applicant's request. The standard for impugning reasoning as illogical or irrational is a high one: see, eg, DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85] (Beach, O'Callaghan and Anastassiou JJ) and I am not satisfied that the primary judge's reasons reveal any illogicality, irrationality or unreasonableness in relation to these grounds.

Ground 3 of the Applicant's written submissions - Direction No 53 35 Ground 3 of the Applicant's written submissions contends that the Tribunal was bound by reason of s 499 of the Act to comply with Direction No 53, but failed to do so, and that constituted a jurisdictional error. Direction No 53 requires the Tribunal to have regard to certain matters when reviewing the decisions of primary decision-makers in relation to assessing the genuine temporary entrant criterion at cl 572.223 of the Regulations. 36 This ground of review was abandoned in the application for review in the Circuit Court (at [39]). Accordingly, it has no bearing on a contention that the primary judge erred in the exercise of his discretion not to extend time under s 477 of the Act.

disposition 37 For the reasons given above, I have concluded that there is no basis for overturning the decision of the primary judge to refuse the application for an extension of time. The primary judge's thorough and detailed analysis of the Applicant's application provides no basis upon which to conclude that there was any legal error in the exercise of his discretion that would allow this Court to interfere with it consistently with the principles in House v The King. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.