Shakeel v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1937

1. On 3 August 2017, the applicant's representative provided further submissions in response to the NOICC including a copy of email correspondence between the College and the applicant's representative.
2. On 23 August 2017, the Delegate cancelled the Visa on the basis that the Delegate was satisfied that the grounds for cancellation of the Visa were satisfied due to non-compliance with condition 8202, pursuant to s 116(1)(b) of the Act (Delegate's Decision).
3. On 29 August 2017, the applicant applied to the Tribunal for review of the Delegate's Decision.
4. On 12 March 2019, the applicant obtained new legal representation.
5. On 13 March 2019, the Tribunal invited the applicant to attend the hearing listed for 1 April 2019 at 12.00pm.
6. On 1 April 2019, the applicant appeared before the Tribunal with the assistance of his representative and an interpreter in the Urdu and English languages and gave evidence.
7. On 5 June 2019, the Tribunal affirmed the decision of the Delegate to cancel the Visa.

1. Section 41(1) of the Act provides for the imposition of conditions on visas:

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

1. Regulation 2.05(1) of the Migration Regulations 1994 (Cth) (Regulations) provides that visa conditions are to be specified with respect to each visa subclass in sch 2 to the Regulations:

(1) For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).

1. As at 11 December 2015, when the applicant applied for the visa, the conditions to which the holder of a subclass 573 visa was subject were set out in cl 573.611 of sch 2 to the Regulations. Relevantly, cl 573.611(1)(a) provided that a subclass 573 visa was subject to condition 8202:

Clause 573.611

If the applicant satisfies the primary criteria:

(a) in all cases, conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533; ...

1. Visa conditions, while specified in sch 2 to the Regulations, are detailed in sch 8 to the Regulations, pursuant to the definition of 'condition' in reg 1.03:

"condition " means a condition set out in a clause of Schedule 8, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule.

1. Condition 8202 is set out in sch 8 to the Regulations. When the applicant was granted the visa, condition 8202 was as follows:

(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2) A holder meets the requirements of this subclause if:

(a) the holder is enrolled in a registered course; or

(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student - the holder is enrolled in a full-time course of study or training.

(3) A holder meets the requirements of this subclause if neither of the following applies:

(a) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i) section 19 of the Education Services for Overseas Students Act 2000; and

(ii) standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i) section 19 of the Education Services for Overseas Students Act 2000; and

(ii) standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

(4) In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa - the holder is enrolled in a full-time course of study or training.

1. Section 116(1)(b) of the Act gives the Minister the discretionary power to cancel a person's visa in circumstances where the visa holder has not complied with a condition of the visa:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(b) its holder has not complied with a condition of the visa; ...

1. In exercising the discretionary power in s 116(1)(b) of the Act, the Department's Procedures Advice Manual 3, General visa cancellation powers (PAM3) provides for the matters which delegates of the Minister and the Tribunal should take into account, if relevant, in deciding whether to cancel a visa.
2. Item 32 of sch 4 of the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 (Cth) (Amending Regulation), abolished the subclass 573 visa. Regulation 5404(1) of sch 5 of the Amending Regulation provided that the amendments made by item 32 of sch 4 apply in relation to an application for a visa made on or after 1 July 2016.

1. The Tribunal issued its statement of decision and reasons on 6 June 2019 (Tribunal Decision).
2. At paragraphs [1] - [2] of the Tribunal Decision, the Tribunal noted the application before it and identified that the issue before it was whether the grounds for cancellation of the visa were made out and if so, whether the visa should be cancelled.
3. At paragraphs [4] - [8] of the Tribunal Decision, the Tribunal summarised matters to do with the applicant's legal representative. The Tribunal noted that at the commencement of the hearing, the applicant's legal representative sought to provide a number of cases to the Tribunal as "a point of reference", but informed the Tribunal that he did want to make any submissions about the cases at that time. The Tribunal records that at the end of the hearing the applicant's legal representative requested the Tribunal to consider one of the cases, saying it was "all about reasonableness", indicating that the Delegate had made an unreasonable decision and failed to make relevant enquiries of the applicant. The decision further records that in response to questions from the member, the applicant's legal representative indicated that the were no further questions the Tribunal needed to put to the applicant and that the Tribunal had not made any legal error during the course of the hearing.
4. At paragraphs [9] - [11] of the Tribunal Decision, the Tribunal noted a number of procedural matters including that the applicant's representative indicated that he was only recently retained to represent the applicant and as such has not had a sufficient opportunity to prepare for the hearing. The Tribunal confirmed that the applicant's new representative had been appointed on 12 March 2019 and that the Tribunal granted him an adjournment, listing a new hearing date for 1 April 2019. As such, the Tribunal considered the representative had been given a sufficient opportunity to prepare for the hearing.
5. At paragraphs [13] - [17] of the Tribunal Decision, the Tribunal considered whether the applicant complied with condition 8202 of sch 8 to the Regulations. The Tribunal found that the applicant was not enrolled in a registered course and noted that it was the applicant's own evidence that he had not been enrolled in a registered course of study at the relevant time (being between 25 November 2016 and 6 June 2017). Consequently, the Tribunal found that the applicant did not comply with condition 8202(2)(a) and the ground for cancellation pursuant to s 116(1)(b) of the Act was established.
6. At paragraph [18] of the Tribunal Decision, the Tribunal noted that having found that the applicant did not comply with a condition of his visa, it must have regard to the circumstances raised by the applicant, in addition to the matters contained in PAM3.
7. At paragraphs [19] - [27] of the Tribunal Decision, the Tribunal detailed the discussions it had with the applicant during the hearing in relation to the circumstances in which the Visa was cancelled.
8. At paragraphs [27] - [54] of the Tribunal Decision, the Tribunal went on to further consider the applicant's submissions in relation to the circumstances in which the Visa was cancelled and made a number of findings in relation to both the circumstances raised by the applicant and the factors contained in PAM3, including, in summary that:

(1) it accepted that the applicant had some personal difficulties that impacted him as a new student and placed some weight on these circumstances in the applicant's favour. However, it found that the applicant was reasonably aware of his poor English skills, which was a significant contributing factor for the reason he ceased his course enrolment in 2016, the applicant had not taken reasonable steps to improve his English skills since that time and even if the applicant did have a student visa, his current English skills would not enable him to successfully undertake and complete a tertiary course of study in Australia. The Tribunal placed significant weight on those factors which it found weighed against the applicant;

(2) it accepted that the applicant's intention was to study in Australia and found that the applicant had no compelling need to travel or remain in Australia and gave this consideration low weight in the applicant's favour;

(3) it could not accept that the applicant's period of enrolment of seven months was a relatively minor breach and while it placed some weight on the applicant's re-enrolment prior to receiving the NOICC, it gave low wight in the applicant's favour overall in relation to this;

(4) it accepted that the applicant would face hardships, including disappointing his family, if his Visa was to remain cancelled and overall gave it low weight in the applicant's favour;

(5) it accepted that the applicant would be subject to a three-year exclusion period as a consequence of his student Visa cancellation and that as a result he will have limited options to apply for further visas in Australia, but ultimately placed low weight on this information in the applicant's favour; and

(6) there would be no breach of international obligation should the applicant's Visa be cancelled and placed no weight on this information in the applicant's favour.

1. At paragraphs [55] - [57] of the Tribunal Decision, the Tribunal ultimately found that the applicant was not enrolled in a registered course of study between 25 November 2016 and 6 June 2017 and consequently did not comply with condition 8202(2)(a). The Tribunal further found that the circumstances in which the applicant's course enrolment was cancelled did not amount to exceptional circumstances.
2. Accordingly, the Tribunal affirmed the decision of the Delegate to cancel the applicant's Visa.

1. Section 477(1) of the Act requires that an application to this Court be made within 35 days of the date of the migration decision.
2. The Tribunal Decision was made on 5 June 2019. An application for judicial review of that decision in this Court was therefore required to be filed by 11 July 2019. The Application for judicial review was filed on 12 July 2019 and was therefore filed 1 day after the expiry of the statutory timeframe.

Should the Court be satisfied to make an order extending time?

1. Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if the Court is satisfied that it is necessary in the interests of the administration of justice to make such an order.
2. The Act does not specify any criteria which must be satisfied to establish that it is in "the interests of the administration of justice" to grant an extension.
3. The principles regarding an application under s 477(2) were considered in BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49. In that decision, Jagot and Halley JJ found that the Court has an obligation "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice". Further, they identified that whilst the matters to which regard may be had are not expressly confined by the Act, the following are usually relevant when considering an extension of time - although it is noted that this list is not exhaustive:

(1) the extent of the delay and the explanation for it;

(2) any prejudice to the respondent if an extension were granted;

(3) the impact on the applicant if the time was not extended;

(4) the interests of the public at large; and

(5) the merits of the substantive application.

1. In the Application filed 30 March 2022, the applicant specified the following grounds as to why it is necessary in the interests of the administration of justice to extent time, in the following terms (without amendment):
   1. I state that there exist issues that prevented me from filing my appeal within time and request that the Authorities to consider the following issues when determining my request for an extension of time with a good cause which existed included, but are not limited to, the below situations, for failing to file an appeal request timely.

2. Circumstances impeded my efforts to pursue my claim or appeal another issue.

1. I was diligently seeking evidence to support my claim, but did not finish before the time period expired.
2. I had compelling circumstances for not filing on time but due to the length of process of determining the fate of this review, I decided to lodge my application with Federal Circuit Court (FCC) as I had been informed of the negative outcome y the AAT.
3. An agency representative of Administrative Appeals Tribunal (AAT) gave me confusing, misleading, incorrect or incomplete information about when and how to being a judicial review process which was out of time.
4. I did not engage the services of any registered migration agent or solicitor as I had financial difficulty in engaging their services.
5. I tried my level best to file an appeal by myself but did not understand the requirements of the Federal Circuit Court, resulting from lack of information provided on the Decision Records.
6. My physical, mental, educational, or linguistic limitations (including lack of facility with the English language/accent) prevented me from timely filing an appeal request.
7. I was distraught and was prevented from contacting the Authorities in person, in writing, or through a friend, relative or other person.
8. Physical limitations, medical complications and other issues definitely interfered with an ability to file a timely disability appeal.
9. The date of Decision is 05.06.201 where as the date of Notification of Decision is 06.6.2019. This has cause great confusion and the wrong computation of time considering my mental state at the time.
10. I did not understand the requirement to file timely, nor was I able to appreciate the repercussions and legal impediments of not filing out of tine.

1. The delay is in filing is very short, being a period of only 1 day.
2. At the hearing the applicant's explanation for the delay was that his lawyer did not attend to filing the Application on time. The applicant said that he did not prepare the Application or the above grounds. When asked by the bench whether the reasons for the delay contained in the Application were therefore true, the applicant maintained they were, whilst also maintaining that the delay was occasioned by his lawyer's conduct and that was the reason for the delay.
3. For the following reasons I do not consider that the applicant has provided an adequate or satisfactory explanation for the delay.
4. Firstly, there is no evidence before the Court that the applicant was represented by a lawyer before the Court at any time.
5. Secondly, I consider there to be some considerable doubt as to the veracity of the matters contained in the Application in light of the applicant's submissions at the hearing as to the explanation for the delay.
6. Thirdly, even if the matters contained in the Application as to the explanation for the delay are truthful:

(a) the applicant has not provided any probative, objective evidence to support his claims that he was seeking further evidence to support his claim or suffering from any physical, mental or medical complications or conditions or how those matters prevented him from filing on time;

(b) it is well established the impecuniosity is not an adequate explanation for delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38], and there is no entitlement to legal representation WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [37]. Indeed, the vast majority of litigants in this Court's migration jurisdiction are unrepresented;

(c) ignorance of procedure and time limits does not provide an adequate explanation for a delay in filing: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]- [9];

(d) whilst I accept that the Notification of Decision is dated 6 June 2019, the Decision Record clearly states that it is made on 5 June 2019 both in the heading of the Decision Record and beneath the member certification;

(e) attached to the Notification of Decision is a factsheet entitled "Information about decisions - MR Division". That document contains the following statement:

Review of decisions

Applicants can apply to the Federal Circuit Court of Australia (the Court) for judicial review of our decisions. The Court will consider whether we made a jurisdictional error. If you wish to apply for review, you must do so within 35 days of the date of our decision. If you require an extension of time, you must ask for it in the application and explain why. The Court will decide whether or not to grant an extension of time.

1. In addition, the factsheet also contains the following:

Immigration assistance

Our website (www.aat.gov.au) provides a list of organisations that may be able to provide immigration assistance or referrals to other services.

1. This weighs against the grant of an extension of time.
2. Notwithstanding the absence of a satisfactory explanation for the delay, given the very short period of the delay, had I been persuaded that the grounds of review were reasonably arguable, I would have granted an extension of time. However, for the reasons set out below, I do not consider the grounds of review to be reasonably arguable.

1. The Minister properly contends that it would not suffer any particular prejudice, other than as to costs, if an extension of time were granted.
2. However, the mere absence of prejudice is not sufficient to justify a finding in favour of an extension of the time for filing: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6].
3. I assess this as a neutral consideration.

1. There is a public interest in ensuring that decisions of the Executive are made lawfully. The merits of the substantive grounds relied upon by the applicant, which are considered below, will of course be relevant to this. However, it has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; 177 ALR 491 at [15] - [17].
2. As to the impact upon the applicant, if the extension of time is refused then the Tribunal's decision will stand. Although an alternative route of review might be available, under s 476A(3)(a) of the Act, the refusal of an explanation for an extension of time forecloses any right of appeal: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [65].
3. I assess this as a neutral consideration.

1. While the discretion of the Court is broad, the Court should not permit an application to proceed if it is bound to fail, and should accordingly decline to extend time.
2. The substantive Application provides 13 grounds for judicial review (without amendment):
   1. The Tribunal fell in error by not considering that I had compelling circumstances and exceptional circumstances that eventuated beyond my control which resulted in my absence in classes and my course;
   2. The Tribunal exercised its decision making power unreasonably and unconscionably;

3. The Delegate failed to exercise its decision-making power reasonably;

1. The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/or refusing to give weight to evidence provided by the applicant and thereby made erroneous findings and mistaken conclusion.

2. Having regard to the entirety of the applicant's circumstances and taking into consideration that the concept of substantial compliance contemplates permissibility of some degree of non-compliance, accordingly, the tribunal should have found that the applicant has complied substantially with the conditions of his/her last held substantive visa and any subsequent bridging visa.

3. In Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 16 Ryan J stated that a condition similar to clause 527.235: "Requires substantial compliance with all of the conditions cumulatively to which an applicant's last visa was subject...".

7. Therefore, the tribunal's decision is internally inconsistent.

1. I submit that there is no logical connection between the Tribunal's line of reasoning concerning the fact that the I was notified of the Tribunal hearing and my failure to seek an offer of enrolment for courses as I was not in a position to know prior to the hearing that the Tribunal would make a decision on that day.
2. In addition, I submit that the Tribunal's finding as to my failure to seek an offer of enrolment to enable me to secure admission was significant and a finding "on the way" to the critical conclusion reached by the Tribunal that the appellant was not a genuine student and therefore, that her visa should be cancelled.
3. I submit that the Tribunal's reasoning demonstrates an absence of a logical connection between the evidence and the conclusions drawn by the Tribunal and that no logical or rational decision-maker could have come to the same conclusion. There was no evidence and no rational grounds to support the Tribunal's findings.
4. I submit that because of the way in which the Tribunal conducted the hearing, the Tribunal was obliged to turn its mind to whether I was, subsequent to my student visa cancellation, in a position to secure an offer of enrolment in circumstances where my student visa had been cancelled and where I currently held a bridging visa.
5. Further, the exchange between the Tribunal and me at the hearing reveals that the Tribunal itself had assumed that I must first have my visa reinstated before I was in a position to enrol in a course.
6. Enquiries of that kind might well be expected to have been made by someone in the appellant's then circumstances. My failure to do so is illogically connected to enrol and undertake studies as I had claimed.

1. At the hearing the applicant was invited to elaborate on each of the above grounds. Where he did so, those oral submissions are addressed below.

1. By Ground 1 the applicant contends that the Tribunal failed to consider compelling and exceptional circumstances that resulted in him failing to maintain enrolment.
2. The Tribunal Decision reveals that with reference to the relevant factors in the PAM3 it considered, in considerable detail, the applicant's reasons for failing to maintain enrolment and whether those circumstances were extenuating.
3. At paragraph [19] - [27] of the Tribunal Decision, the Tribunal records its discussions with the applicant at the hearing as to his study history since arriving in Australia in December 2015, and the circumstances in which the ground for cancellation arose including:

(a) the additional time taken by the applicant to complete the English for Academic Purposes (EAP1) course;

(b) the applicant's subsequent missed enrolment in EAP2 in November 2016;

(c) the then cancellation of the applicant's enrolment on 16 November 2016;

(d) the applicant's discussions with a representative of the College regarding evening classes;

(e) the applicant's later enrolments in an attempt to maintain his student visa; and

(f) other difficulties he experienced in Australia as a result of having to move house twice, being a new student, only having completed intermediate studies in Pakistan and never having travelled to another country before.

1. Accordingly, the Tribunal was aware of and took into consideration the reasons for the applicant's failure to maintain enrolment. At paragraph [35], the Tribunal placed some weight on the difficulties the applicant experienced, and accepted that he felt alone and was homesick. Ultimately, however, the Tribunal found at paragraph [35], amongst other things, that the applicant had failed to take reasonable steps to engage with his course provider in order to progress his enrolment, that the applicant's poor English language skills significantly contributed to the reasons why his enrolment ceased in 2016 and that the applicant had not taken reasonable steps to improve his English language skills since that time. The Tribunal placed weight on these matters and concluded at paragraph [36] as follows:

In balancing the above findings, the Tribunal places low weight in the applicant's favour in respect to the circumstances in which the ground for cancellation arose, that is, where the applicant was not enrolled in a registered course of study between 25 November 2016 and 6 June 2017.

1. Accordingly, the Tribunal had regard to the circumstances in which the applicant's enrolment ceased and did not find them compelling, exceptional or beyond the applicant's control. I consider this finding was open to the Tribunal on the evidence before it, for the reasons it gave.
2. Ground 1 discloses no reasonably arguable error on the Tribunal's behalf.

1. It is convenient to address Ground 2 and 10 together. By these grounds the applicant contends that the Tribunal exercised it decision making power unreasonably, irrationally, illogically and failed to accord the applicant procedural fairness.
2. Those grounds are entirely unparticularised. At the hearing the applicant submitted, that the member exhibited bias towards him.
3. Firstly, the applicant submitted that at the commencement of the Tribunal hearing the member behaved rudely and unreasonably towards his representative in relation to "papers" the representative sought to hand up to the member. The applicant submitted that there was "harsh language" and an "argument" between the member and his representative. The applicant submitted that as a consequence, the member did not hear his case fairly or with an open mind.
4. In his affidavit the applicant deposes to the member being "very rude" to his representative and "bombarding my representative to a point the interpreter was shocked and I felt intimidated".
5. At paragraph [18] of the affidavit, the applicant deposes as follows:

I want to say that the member was intimidating and rude and had a prejudiced and tainted and apprehension of biasness towards my representative and me.

1. Secondly, the applicant submitted that the member had a prejudiced mind about his English language skills and use of an interpreter. He submitted that the focus of the Tribunal's questioning and its decision is on his English language competency.
2. For the applicant to establish bias or apprehended bias the allegations must be distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 (Jia) at [69]. As submitted by the Minister:

(a) in relation to actual bias, the applicant must clearly prove that the Tribunal's state of mind, in exercising the discretion, was so committed to a conclusion already formed as to be incapable of alteration, regardless of the evidence or arguments presented: Jia at [71] - [72];

(b) in relation to apprehended bias, the applicant must clearly prove that the Tribunal behaved in a way which might lead the hypothetical fair minded lay person to reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [17], [56], [132].

1. As set out in paragraph [28] above, paragraphs [4] - [8] of the Tribunal Decision records the interaction between the applicant's legal representative and the member at the commencement of the hearing. The transcript of the hearing is not before the Court. In my view, there is nothing in the Tribunal Decision in relation to the interaction between the applicant's representative and the member which could clearly prove or indeed, suggest, that the Tribunal's state of mind was committed to a conclusion already formed or which might lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the applicant's case on its merits. I note that the interaction was in relation to cases to be relied upon, and not the merits of the applicant's case, his evidence or claims. Nor does the Tribunal Decision support a conclusion that the member was rude. However, rudeness does not necessarily establish an apprehension of bias: "occasional displays of impatience and irritation, whether justified or not, may not amount to disqualifying bias" (VFAB v Minister for Immigration and Multicultural Affairs [2003] FCA 872; (2003) 131 FCR 102 (VFAB) at [81]) and "momentary outburst and misunderstandings in the often stressful world of adjudication must be tolerated" (Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230 (Kirby J), cited with approval in VFAB at [81] (Kenny J) and AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) 238 FCR 341 at [20] (North, Besanko and Flick JJ)).
2. As to the applicant's allegations regarding the Tribunal's alleged bias based on his use of an interpreter at the hearing and his English competency, the applicant's own evidence before the Tribunal was that he missed enrolment in EAP2 due to his English language skills being poor and necessitating 15 weeks, rather than 10 weeks, to complete EAP1. The applicant's further evidence was that he was informed by the College by email on 16 November 2016 that if he missed enrolment in EAP2 his Confirmation of Enrolment (COE) would be cancelled. His further evidence was that he did not start EAP2 and he was not enrolled in a course of study between 25 November 2016 and 2 June 2017. Accordingly, the applicant's English language ability was clearly germane to the Tribunal's consideration of the circumstances in which the applicant's enrolment was cancelled and the circumstances in which the ground for cancellation arose.
3. At paragraphs [28] - [35] of the Tribunal Decision, the Tribunal addressed the applicant's English language skills as follows:

(a) given the use of an interpreter for the entirety of the hearing, the Tribunal asked the applicant how the Tribunal could be satisfied he had sufficient English language abilities to undertake and complete a higher education course: [28];

(b) the applicant's evidence was that he had come to Australia to improve his English language skills and that he was reasonably aware that as part of gaining a student visa he was required to be able to read, write and speak a reasonable standard of English so as to be able to complete a tertiary course of study in Australia: [29];

(c) the Tribunal put to the applicant that since completing EAP1 in 2016 he had done nothing to improve his English language skills: [31];

(d) the applicant's evidence was that he could completely understand what the Tribunal said to him but used an interpreter so he could explain his position to the Tribunal carefully and ensure nothing was left out and that his English had improved a lot: [32], [33];

(e) the applicant's evidence was that he could understand why the Tribunal had put concerns regarding his English language skills to him: [33]; and

(f) that the Tribunal made it clear to the applicant that the use of an interpreter at the hearing was not problematic, other than the concerns the Tribunal had put to the applicant about his English language ability; [34].

1. At paragraph [35] the Tribunal, relevantly, said:

Based on the above, the Tribunal makes the following findings:

...

• The Tribunal accepts that the applicant had come from a background where English was not his first language and that he had come to Australia to improve his English language skills. However, the Tribunal finds that despite the lengthy period of time the applicant has been in Australia, his English language skills remain poor. The Tribunal finds that applicant was reasonably aware of his poor English language skills and that this issue significantly contributed to the reason why he ceased his course enrolment in late 2016. The Tribunal finds that since the applicant ceased his course enrolment in late 2016, and noting the applicant has not been granted study rights on his Bridging Visa E, the applicant still has not taken reasonable steps in all the circumstances to improve his English language skills since late 2016. Accordingly, the Tribunal finds that even if the applicant were to have a student visa, his English skills are such that it is unlikely he could successfully undertake and complete a tertiary course of study in Australia. The Tribunal places high weight on these facts. I reject the submission that the above demonstrates bias on behalf of the Tribunal in relation to the use of an interpreter by the applicant or his English language skills. The applicant's English language skills were clearly germane to the circumstances in which the ground for cancellation arose. Further, the steps taken by the applicant since 2016 to increase his English language skills were also germane to the broad discretion to be exercised by the Tribunal in determining whether the applicant's visa ought be cancelled.

1. I accept the Minister's submission that the Tribunal considered the legislative criterion, considered and weighed the factors provided for in PAM3, and considered the applicant's claims and evidence before it. The Tribunal prepared a detailed decision engaging with those matters. The Tribunal's findings, and ultimate decision, were open to it for the reasons it gave, with a logical connection between each finding and the Tribunal's ultimate decision. No unreasonableness, irrationality or illogicality is revealed.
2. Grounds 2 and 10 disclose no reasonably arguable error on the Tribunal's behalf.

1. Ground 3 contends that the Delegate's Decision was unreasonable.
2. The Delegate's Decision is a "primary decision" as defined in s 476(4)(b) of the Act. Pursuant to s 476(2)(a) of the Act this Court has no jurisdiction in relation to a primary decision.
3. Ground 3 discloses no reasonably arguable error on the Tribunal's behalf.

1. By Ground 4 the applicant contends that the Tribunal failed to take into account and give weight to relevant evidence. At the hearing the applicant submitted that the Tribunal failed to have regard to:

(a) the fact that the College did not notify him that his COE had been cancelled; and

(b) that he had contacted Jagen Thang Raja (Jagen) from the College multiple times after he missed enrolment for EAP2 to try and make further arrangements. At the hearing before this Court, he said he contacted Jagen six or eight times.

1. Further, in his affidavit the applicant deposes that he told the Tribunal that before completing the EAP1 he had also completed the General Purpose English course (GPE) but the Tribunal Decision fails to mention this.
2. At paragraphs [22] - [24] of its decision the Tribunal said:

He indicated that when he first started studying, he undertook the English for Academic Purposes (EAP1) course but because his English was so weak the course took longer to complete. He indicated the course took 15 weeks to complete rather than 10 weeks.

The applicant indicated that he then missed his enrolment in the English for Academic Purposes (EAP2) course in November 2016. He got an email from his provider saying that if he missed the enrolment his Confirmation of Enrolment (COE) would be cancelled.

The applicant explained that he consulted a person at Cambridge College, named Jagen Thang Raja (Jagen). The applicant explained that Jagen told him he had to take evening classes but that he was not comfortable with evening classes and he said he wanted morning classes.

1. Notwithstanding the above submissions, at the hearing the applicant confirmed that this accurately reflected his evidence to the Tribunal. Accordingly, the applicant's own evidence was that he was notified by the College on 16 November 2016 that his COE would be cancelled and this is referred to in the Tribunal Decision.
2. As to the submission that the applicant contacted Jagen multiple times and the Tribunal failed to take this into consideration, there is no evidence that the applicant gave this evidence to the Tribunal. The transcript of the hearing is not before the Court. The best evidence before the Court of the applicant's evidence is therefore the Tribunal Decision. The applicant does not include this assertion in his affidavit. Further, that the applicant contacted Jagen multiple times is inconsistent with other evidence before the Court. Specifically, the NOICC Response provides as follows:

[3] ... On 16 November 2016 Mr Shakeel received an email from Cambridge, advising that 'you have not arrived for enrolment and have not been enrolled into ... EAP 2 ... Please note that failure to enrol before the required date will result in cancellation of enrolment and CoEs and the information will be reported to the Department of Immigration and Border Protection (DIEP) via PRISMS. Please discard this email if you have already enrolled into the course".

[4] Mr Shakeel was confused about the email sent to Cambridge, and on 21 November 2016 went to speak to the college about his enrolment over this period. He spoke to a college officer but was unable to obtain any further clarification:

After my conversation with Thangaraka Jagen I was still confused about my enrolment, because my English was not good and also because the officer at the College did not explain the procedures very clearly. At this time, I was also having trouble because I felt cheated by the College, who kept extending my course and charging me fees. I felt alone and ve1y homesick. It was the first time I had been away from home and being the eldest son, I am very close to my mother. I missed my family very much.

I did not speak to anyone the College to seek help with my problems because of the language barrier and self-consciousness in my personality. I realise I should have got more help with my enrolment earlier, but I felt very bad after my talk with the College officer, and I really hoped that they could contact me to help sort my problems.

[5] There was no further contact between Mr Shakeel and Cambridge until June 2017...

1. Further, in the applicant's statement attached to the NOICC Response he says:

[10] After I got the email from the College on 16 November I was confused about my enrolment. On 21 November 2016 I went to the College in person and talked to a College officer Thangaraka Jagen. I asked about the email sent on 16 November and why I had been told about this enrolment requirement before this email was sent. I thought the email did not make sense especially because I had completed the prerequisite course and I already had an official enrolment confirmation. The College did not make any further contact with me.

[11] After my conversation with Thangaraka Jagen I was still confused about my enrolment, because my English was not good and also because the officer at the College did not explain the procedures very clearly. At this time, I was also having trouble because I felt cheated by the College, who kept extending my course and charging me fees. I felt alone and very homesick. It was the first time I had been away from home and being the eldest son, I am very close to my mother. I missed my family very much.

[12] I did not speak to anyone the College to seek help with my problems because of the language barrier and self-consciousness in my personality. I realise I should have got more help with my enrolment earlier, but I felt very bad after my talk with the College officer, and I really hoped that they could contact me to help sort my problems.

1. As to the contention that the applicant told the Tribunal that before completing the EAP1 he had also completed the GPE course and the Tribunal Decision fails to mention this, this is included in the NOICC Response at paragraph [2] and in the applicant's statement attached to the NOICC Response at paragraph [4]. At paragraph [35] of the Tribunal Decision, the Tribunal says:

• The Tribunal accepts that the applicant received the assistance of Carina Ford Immigration Lawyers who assisted him to respond to the Notice of Intent to Consider Cancellation (NOICC) and the Tribunal has considered this response. The Tribunal accepts that the applicant felt alone and homesick and that he was very close to his family. The Tribunal places some weight on these circumstances in the applicant's favour.

1. Accordingly, I reject the contention that because the Tribunal did not refer to the GPE it failed to consider it. Rather, I consider the better inference to be that it did not refer to it as it is not relevant to the circumstances in which the cancellation arose. For the same reason, even if it be that the Tribunal did not consider the GPE, and by failing to do so erred, such an error is not material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. The completion of the GPE had no relevance to the circumstances in which the cancellation arose. As such, despite the low threshold of materiality, in the present circumstances there is no realistic possibility that the outcome could have been different even if the Tribunal had taken this matter into consideration.
2. Finally, the weight to be given to any particular evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
3. Ground 4 discloses no reasonably arguable error on the Tribunal's behalf.

1. Ground 5, 6 and 7 are misconceived.
2. At paragraph [38] of its decision the Tribunal expressly found that the applicant complied with his Visa conditions other than condition 8202. No issue of substantial compliance arose.
3. Grounds 5, 6 and 7 disclose no reasonably arguable error on the Tribunal's behalf.

1. By these grounds the applicant makes allegations centred upon, and in relation to, seeking and securing enrolment and findings by the Tribunal in relation to whether the applicant was a genuine student. It is therefore convenient to address these grounds together.
2. For the reasons that follow, Grounds 8, 9 and 11 - 13 are also misconceived and disclose no reasonably arguable error on the Tribunal's behalf.
3. Firstly, the Tribunal made no reference to, or findings in respect of, the applicant seeking offers of enrolment. The findings made by the Tribunal at paragraph [35] were that:

(a) the applicant failed to take reasonable steps to engage with his course provider to progress his enrolment;

(b) did not contact the Department in an effort to resolve issues with his course enrolment; and

(c) that since his enrolment ceased in late 2016 "and noting that the applicant has not been granted study rights on his Bridging Visa E", the applicant had still not taken reasonable steps to improve his English language skills since late 2016.

1. For completeness at paragraph [38] the Tribunal makes reference to the submission in the NOICC Response that the applicant had re-enrolled prior to the NOICC being issued.
2. Secondly, the Tribunal made no finding as to whether the applicant was a genuine student, nor was it required to. At issue was whether a ground for cancellation had arisen and, if so, whether the Visa should be cancelled.
3. Thirdly, the Tribunal was not required to consider whether the applicant was in a position to secure an offer of enrolment. The Tribunal considered the legislative criterion and the matters in PAM3.
4. Fourthly, the Tribunal Decision does not disclose any assumption by the Tribunal that the applicant would first have to have his Visa reinstated before enrolling in a course.
5. Finally, the Tribunal made no finding that the applicant did not have a genuine intention to enrol and undertake studies. The Tribunal found at paragraph [35] that even if the applicant were to have a student visa, his English skills are such that it is unlikely he could successfully undertake and complete a tertiary course of study in Australia.
6. Accordingly, none of the grounds advanced by the applicant disclose any reasonably arguable error on the Tribunal's behalf.

1. The Application was filed outside the statutory timeframe. The Court may only grant an extension of the time within which the Application was to be made if satisfied such extension is in the interests of the administration of justice.
2. None of the above considerations weigh in favour of the grant of an extension of time. Most significantly, none of the grounds of review advanced by the applicant disclose any reasonably arguable error on the Tribunal's behalf. Accordingly, I am not satisfied it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review.

1. The Application is therefore dismissed.
2. The Minister seeks an order that the applicant pay its costs in the amount of $4,000. I note that this is below the scale in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and also below the scale now contained in sch 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
3. I shall order accordingly.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.