Shahid v Minister for Immigration and Multicultural Affairs

1. The name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.
2. The application for an extension of time and leave to appeal be dismissed.
3. The applicant is to pay the costs of the first respondent in an amount to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCELWAINE J 1 This proceeding is about a failed application by Mr Shahid (the applicant) to obtain a student visa. The applicant is a citizen of Pakistan and is married. On 10 July 2017, he commenced a course of study with a private educational provider known as Holmes College. He did not complete the course. There is evidence that he was dissatisfied with the standard of teaching provided in the course. For that purpose, he was granted a Student (subclass 500) visa (student visa) with an expiry date of 15 March 2020. 2 On 14 March 2020, the day prior to the expiry of his student visa, the applicant applied for a further student visa. The history of what then occurred is correctly summarised in the Minister's submissions from paragraph 8 through to paragraph 12, which submissions I gratefully adopt and repeat as follows: 8. On 3 June 2020, the Department invited the applicant to comment on adverse information obtained from the Provider Registration and International Student Management System (PRISMS) that indicated the applicant's enrolment at the time of application had been cancelled by the education provider and therefore the applicant did not have a current enrolment. 9. In response, the applicant provided a statement, a new Confirmation of Enrolment (CoE) for a Bachelor of Accounting at Kent Institute and appointment details with Sonic HealthPlus. 10. On 3 July 2020, the Department requested further information from the applicant about his overseas student health cover within 28 days, i.e., by 31 July 2020. The applicant did not provide a response. 11. On 6 August 2020, the Department made a second request for further information from the applicant about his overseas student health cover within 28 days, i.e., by 3 September 2020. The applicant did not provide a response. 12. On 26 May 2022, the delegate refused to grant the applicant a student visa. The delegate was not satisfied the applicant had adequate arrangements in Australia for health insurance during the period of his intended stay as required by clause 500.215 of Schedule 2 to the Regulations. 3 On 3 June 2020, the Department of Home Affairs (the Department) invited the applicant to comment on adverse information obtained from the Provider Registration and International Student Management System (PRISMS) that indicated the applicant's enrolment at the time of application had been cancelled by the education provider and therefore the applicant did not have a current enrolment. In response, the applicant provided a statement, a new confirmation of enrolment for a Bachelor of Accounting at the Kent Institute and appointment details with Sonic HealthPlus. On 3 July 2020, the Department requested further information from the applicant about his overseas student health cover within 28 days, that is, by 31 July 2020. The applicant did not respond. 4 On 6 August 2020, the Department made a second request for further information from the applicant about his overseas student health cover within 28 days, that is, by 3 September 2020. No satisfactory response was received. On 26 May 2022, a delegate refused to grant the applicant a student visa. The delegate was not satisfied that the applicant had adequate arrangements in Australia for health insurance during the period of his intended stay, as required by clause 500.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 5 The applicant was dissatisfied with the decision of the delegate and on 14 June 2022, applied for review to the Administrative Appeals Tribunal (Tribunal). The Tribunal scheduled a hearing for 22 August 2022 at 9.30 am AEST. At 9.01 am AEST on the day of the hearing, the applicant requested an adjournment by reason of contended ill health. The Tribunal declined to postpone the hearing on the basis that the applicant had not provided supporting medical evidence. Initially, and by further email correspondence, the applicant continued to assert that his ill health prevented his attendance at the hearing. 6 However, to his credit and despite those assertions, he attended the hearing by telephone. The decision, which was ultimately published on 28 September 2022, relevantly records that at the hearing the applicant did not raise the adjournment issue and that he participated by giving evidence without any difficulty. The sworn evidence that he gave is summarised at [15] of the Tribunal decision. That is, first, he stated the reason his health insurance was delayed was due to his cancelled certificate of enrolment. Second, he stated that his last certificate of enrolment was cancelled because he did not have, or had not achieved, the required English test. Thirdly, he stated he had no health insurance, despite trying to obtain such insurance due to an illness that he suffered, partly caused by the COVID-19 pandemic and its consequences. Despite that evidence, the Tribunal was satisfied on the merits review that the applicant had been afforded sufficient time to procure a certificate of enrolment and health insurance. 7 The Tribunal was not satisfied that the applicant was afflicted with a medical condition that prevented him from obtaining his certificate of enrolment and health insurance. Based on those findings, the Tribunal concluded that at the time of its decision, the applicant had still not provided evidence of adequate arrangements for health insurance during the period of his intended stay in Australia, and accordingly cl 500.215 of the Regulations had not been met. The Tribunal therefore affirmed the decision not to grant to the applicant a student visa. 8 On 29 October 2022, the applicant applied for judicial review to the Federal Circuit and Family Court of Australia. At that time, he stated relevantly in his grounds: I was not granted procedural fairness as I was not able to attend the hearing due to ill health and informed tribunal about that before hearing, but they still denied me an extension due to absence of medical evidence. How can someone who developed medical condition last night provide medical evidence? And still I went to GP and provided my medical evidence to the tribunal after the hearing. I believe this is a jurisdictional error. I was not given a fair trial. 9 In response to that application, on 18 November 2022, the Minister applied for summary dismissal. On 23 June 2022, the Minister succeeded upon that application before Judicial Registrar Cummings. The judicial registrar concluded that the applicant had no reasonable prospect of success for the relatively comprehensive reasons as published on 23 June 2023, see Shahid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 544. 10 I note that one matter that the judicial registrar specifically addressed in those reasons was the inadequacy of the medical certificate in somewhat common form provided by the applicant's medical practitioner, that is, that he was "suffering from a medical condition and will be unfit for work/school" on what was the date of the hearing, see the reasons at [23]. Ultimately, the judicial registrar concluded that it was not legally unreasonable for the Tribunal not to give the applicant further time to obtain health insurance, and no reviewable legal error had been made in refusing the adjournment application. 11 The applicant was discontent with that decision and applied out of time for de novo review to a judge of the Federal Circuit and Family Court of Australia. That application was heard and determined by Judge Young, see Shahid v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 703. In that decision, her Honour comprehensively set out the background from [5]-[30]. I note that Mr Shahid appeared in person before Judge Young. 12 There were two issues before her Honour. First, whether the applicant should receive an extension of time for the de novo review, it being 14 days late. And secondly, whether in any event the Minister's application for summary dismissal, because the application itself had no reasonable prospects of success, should be upheld. Her Honour granted the extension of time, but otherwise concluded that the application had no reasonable prospect of success. I note that there were three grounds of judicial review pressed before her Honour, which she sets out at [42]. 13 The applicant's grounds were the same as before the judicial registrar. Her Honour, in dealing with those grounds, was not satisfied that the decision of the Tribunal to not grant the adjournment was legally unreasonable. Her Honour applied the correct principles at [49], by reference to Minister for Immigration and Citizenship v Lee (2013) CLR 332; [2013] HCA 18 at 63, and the decision of Wigney J in this Court in Minister for Immigration and Border Protection v Pandey [2014] FCA 640. 14 Her Honour, having referred to the authorities and recited the facts, concluded at [55] that the applicant was on notice that an adjournment on medical grounds must be supported by a doctor's certificate stating that he is not able to attend the scheduled hearing. The applicant did not provide any medical evidence in support of his adjournment request at the time it was made. Further, the applicant's evidence at the hearing was that his health issues had been ongoing for some time; as such the applicant could have sought and provided the necessary medical evidence prior to the hearing. 15 In those circumstances, the decision of the Tribunal not to grant the adjournment request because it was not supported by medical evidence disclosed an evident, transparent and intelligent justification. It was therefore not unreasonable and fell within a range of possible acceptable outcomes which are defensible in fact and law. Accordingly, her Honour concluded that ground 1 had no reasonable prospect of success. Her Honour then turned to ground 2, that is, the contention that the Tribunal's decision not to conduct a further hearing and allow the applicant further time to submit his certificate of enrolment and health insurance documentation was unreasonable. 16 Her Honour considered the evidence that was before the Tribunal from [59] through to [61]. Her Honour reasoned at [62] that the medical evidence provided to the Tribunal by the applicant did not provide that the applicant was suffering from a medical condition that prevented him from attending the hearing by telephone on 22 August 2022. Further he did so attend without any difficulty and did not raise the issue of an adjournment. Having reviewed the balance of the Tribunal's decision, her Honour noted particularly at [66] that the applicant was on notice that his certificate of enrolment and health insurance requirements were in issue for at least two years prior to the hearing on 22 August 2022. 17 Further, the applicant's visa was refused because the delegate was not satisfied that the applicant had adequate health insurance arrangements in Australia. In those circumstances, the Tribunal's conclusion that the applicant had been afforded sufficient time to procure a certificate of enrolment and the necessary insurance documentation disclosed an evident, transparent and intelligible justification. Her Honour therefore concluded that this ground had no prospect of success and upheld the Minister's summary dismissal application. 18 Once again, the applicant was dissatisfied with that decision and on 13 September 2022 applied for an extension of time and for leave to appeal from the decision of Judge Young in this Court. He supports that application with his affidavit made on 13 September 2023. There are three grounds specified in his application as follows: 1. The applicant (sic) had not been given fairness in trial. The judge seems to be biased in decision. As the applicant did provide medical evidence and explained the jurisdictional error by the tribunal but still the judge ignored the evidence. 2. The judge already stated in his decision that the applicant has no chances of winning the case if it further proceeds in the court, like the Registrar Cummings also stated in his decision. They both were unfair in trial and were totally biased to protect the decision of immigration and tribunal. 3. Why the appellant application is not heard by an actual judge in the court. Because the appellant is self representative (sic), the appellant is being treated unfair and no justice is provided. 19 In his affidavit in support, which is very short, he contends in the first paragraph that he had not been given fairness in the trial, the judge seemed to be biased and the judge ignored the evidence. In the second paragraph, he contends that he must be given justice, the case should be heard by an actual judge in the Court and the case should proceed further and should be finalised by a judge. In the third paragraph he contends that he was not able to appeal in time because he applied on the wrong form. On realising this error, he is now applying on the correct form and needs an extension of time. Finally, the appellant states he wants his case to proceed in the Court. 20 I heard the applicant this morning, and I have given him an opportunity to tell me about his complaints, which extensively traversed the merits of his claim. I have attempted to explain to him the role that I perform, that is, to determine whether there is a proper basis to grant, first, an extension of time and, secondly, leave to appeal the decision of Judge Young. In doing so, I have attempted to explain the distinction between merits review, which is not for me, and the detection of legal error, which is for me. 21 I appreciate that is a difficult distinction to understand, and one that self-represented applicants in this Court often face. The Minister relies on his comprehensive written submissions for which I am very grateful. The Minister from [31] relevantly summarises the correct principles that apply upon an application for an extension of time in an application for leave to appeal. That is, the Court usually has regard to the length of the delay, the reasons for the delay, any prejudice to the respondent and the merit of the proposed appeal: see BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17], Burley J. 22 The Minister also correctly records that it must be shown that there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration and if the judgment below is assumed to be wrong, substantial injustice would result if leave were refused, see DĂ©cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844, particularly at [2]. The Minister further correctly notes that these considerations are cumulative, such that leave to appeal will not be granted unless both limbs are made out. 23 Dealing with the length of the delay, it is not inordinate. It is 21 days, but as the Minister says, that is not insignificant. The Minister takes issue with the applicant's affidavit, although I note that no application was made to cross-examine the applicant on his affidavit evidence that he applied on the wrong form. The Minister notes there is no evidence of the applicant having attempted to lodge a notice of appeal in this court. The difficulty is that the Minister did not cross-examine the applicant on that assertion, and I am not able to positively make a finding one way or the other about it. 24 I therefore consider this to be a neutral factor in that I am prepared to accept that the applicant had some difficulty in understanding which form to use. Dealing with the question of prejudice, the Minister correctly accepts that there is no specific prejudice beyond the public interest in the finalisation of administrative decisions, but then notes that the mere absence of prejudice by itself is not a sufficient reason to grant an extension. I accept those submissions. What really is an issue in this case is whether there is any merit in the proposed appeal grounds. 25 As to proposed ground 1, that is the contention of bias, the Minister submits that this looks like a submission about actual bias which can only be found if there are strong grounds and there is no evidence in support of that allegation. I accept that. But accepting that the applicant is self-represented and probably does not understand the distinction between actual and apprehended bias, I will read the first ground as embracing apprehended bias. 26 Having done so, I am not satisfied that apprehended bias is made out. I am not satisfied that an informed fair-minded observer of what has happened in this proceeding, might reasonably entertain an apprehension that Judge Young might not be able to impartially determine the application, see Ebner v Official Trustee in Bankruptcy (2000) CLR 205 CLR 337; [2000] HCA 63 at [6]. 27 There is in my view no merit whatsoever in proposed ground 1. Proposed ground 2 contends that the primary judge erred by stating that the applicant had no chance of winning the case. As I pointed out to the applicant in argument, that is not what the primary judge said. The primary judge concluded that there was no reasonable prospect of success, which is the legal test upon the application for summary dismissal. Therefore, there is no merit in proposed ground 2. Proposed ground 3 is a complaint by the applicant that his judicial review application was not heard by an actual judge. 28 That is so in the case of Registrar Cummings, but as the history that I have recited makes plain, the applicant exercised his de novo right to apply for review to a judge which was heard by Judge Young. There is therefore no merit in ground 3. 29 Primarily therefore, because there is no prospect at all that any of these grounds will succeed, I am not satisfied that this is an appropriate case to exercise my discretion to grant leave to appeal out of time. 30 The orders that the Minister seeks are as follows: (1) That he be correctly named as the Minister for Immigration and Multicultural Affairs. (2) The application for the extension of time and leave to appeal be dismissed. (3) The applicant is to pay the Minister's costs in an amount to be agreed or assessed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.