Zheng v Minister for Immigration and Border Protection

Introduction 1 The applicant has applied for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules). The applicant wishes to appeal a decision of a Judge of the Federal Circuit Court delivered on 17 April 2015: see Zheng v Minister for Immigration & Anor (No 2) [2015] FCCA 972 (Zheng). 2 Under r 36.03(a)(i) of the Rules, the applicant was required to file and serve his notice of appeal within 21 days after the decision of the Federal Circuit Court was pronounced. Accordingly, his notice of appeal should have been filed by 8 May 2015. Since it was not filed until 18 May 2015, he was 10 days late.

The grounds of this application 3 In an affidavit filed in support of his application, the applicant has set out three reasons why he was delayed in filing a notice of appeal. They are expressed as follows: First, my grasp of English is not very good. Therefore, I struggled to understand the decision and had to seek assistance to understand it. I only learnt that I could appeal the decision after having the chance to speak with my migration agent about two and a half weeks after the date of the decision's making. Secondly, after learning that I could appeal the decision I had to consider the amount of money involved in making an appeal. I only decided to go ahead with making an appeal and to prepare the notice of appeal around 7 May 2015. Thirdly, upon deciding to go ahead with the preparation of the notice of appeal, I made enquiries with the Court's registry and was told that I only had 21 days to file my notice of appeal. It was only at that point in time that I knew I may be out of time for filing my notice of appeal. Therefore, for the above reasons, the filing of my notice of appeal was delayed and was not filed within 21 days after the making of the decision. 4 The applicant's draft notice of appeal sets out one proposed ground of appeal, as follows: By email dated 30 July 2014, the appellant requested the Migration Review Tribunal to re-schedule his hearing before the Migration Review Tribunal. Despite this request, by email dated 13 August 2014, the Migration Review Tribunal refused to re-schedule the hearing on the basis that no reasonable reason was given for the appellant's request to re-schedule his hearing. In the circumstances of the appellant's case, the Migration Review Tribunal's refusal to re-schedule the hearing involved a denial of procedural fairness and constituted a jurisdictional error by the Tribunal. Consequently, the Federal Circuit Court erred in finding that there was no jurisdictional error on the part of the Migration Review Tribunal.

The factual background 5 The applicant, Mr Zheng, is a citizen of the People's Republic of China. At the time of his application to the Tribunal, he was 22 years old. 6 In February 2013, the applicant applied to the Minister for a temporary student visa to undertake study in Australia. At the time his visa application was lodged, the temporary student visa (Class TU) contained a number of subclasses. Generally, the relevant subclass depends upon the type of course in which the applicant is enrolled, or has an offer of enrolment. 7 In April 2013, the Minister refused to grant the applicant a student visa. Prior to his refusal, the Minister wrote to the applicant, pointing out certain deficiencies in his application and asking for further information to address them. The applicant failed to respond to that letter. The applicant then applied to the Tribunal for a merits review of the Minister's decision.

The proceeding before the Tribunal 8 The Tribunal invited the applicant to attend a hearing before it in September 2014 to give evidence and present arguments. On 30 July 2014, the applicant communicated with the Tribunal by email requesting an adjournment of that hearing. His email was worded as follows (see Zheng at [13]): I have received the letter that inviting me to a appear before the tribunal. Maybe I have no time to return to the NSW in September. I am very sorry with this, could I apply for modify the date to attend the hearing please. (Errors in original) 9 On 13 August 2014, the Tribunal sent an email to the applicant refusing to adjourn the hearing (see Zheng at [14]). Its email stated: The tribunal has considered your request to postpone the hearing, received on 30 July 2014. You have given no reasonable reason for an inability to attend. In the circumstances the request is refused, and the hearing will proceed as scheduled on 2 September 2014 at 9.30 am. 10 The applicant did not appear at the hearing on 2 September 2014 and he did not contact the Tribunal before or after the hearing to explain his absence. 11 The Tribunal subsequently affirmed the Minister's decision, on the grounds that: (a) there was no evidence before it that, at the time of the decision, the applicant was enrolled in, or had a current offer of enrolment in, any applicable course of study and therefore he did not meet the requirements of clauses 570.232, 571.231, 573.231, 574.231 and 575.231 of the Migration Regulations 1994 (Cth), as required for the grant of a student visa; and (b) there was no evidence before it that the applicant met the criteria for either a subclass 576 (AusAid or Defence Sector) visa or a subclass 580 (Student Guardian) visa, which were the remaining subclasses possibly available to him.

The decision of the Federal Circuit Court 12 In October 2014, the applicant sought a judicial review of the Tribunal's decision. The applicant did not specify any grounds of review in his application to the Federal Circuit Court, however, he claimed in a supporting affidavit that the Tribunal's decision to proceed in his absence was wrong, and that the Tribunal did not consider the documents that he lodged with his visa application and for his review application. 13 In April 2015, a Federal Circuit Court judge dismissed the applicant's application, finding that the Tribunal's decision was not attended by any jurisdictional error: see Zheng at [3]. His Honour set out in extensive detail the procedural background to the hearing before the Tribunal, including how and when the applicant was contacted about the hearing: see Zheng at [6]-[16]. His Honour also considered all the matters raised by the applicant before him and concluded that none of them demonstrated any jurisdictional error, or any error at all, on the part of the Tribunal: see Zheng at [25]-[26]. 14 While his Honour identified one error that the Tribunal had made, he found that error was not an error that went to the Tribunal's jurisdiction. Rather, it was "an error of fact only which was of little consequence to the Tribunal's determination": see Zheng at [29].

Consideration 15 This Court has a discretion to grant an extension of time to file a notice of appeal. The following considerations have been applied consistently in considering such an application: (a) the length of the delay; (b) whether the applicant has provided an adequate explanation for the delay; (c) any prejudice the respondent might suffer because of the delay; and (d) the merits of the proposed appeal. See, for example, Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [15]-[19]; SZQEH v Minister for Immigration and Citizenship [2012] FCA 127 at [16]-[17]; SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [45]; and Mohammed v Minister for Immigration and Border Protection (2015) 145 ALD 684; [2015] FCA 184 at [15]. 16 In his contentions, the Minister accepted that the period of the applicant's delay was "not substantial" and that he had not suffered any prejudice as a result of it. However, he contended that the applicant's explanation for his delay was not plausible and, in any event, the merits of the proposed appeal did not justify the grant of an extension of time because "no appealable error is apparent in [Zheng]". 17 I agree with the Minister's contention that the period of the delay is not substantial and I note that he does not claim to have suffered any prejudice as a result of the delay. That leaves for consideration the matters in (b) and (d) above: whether the explanation the applicant has provided for his delay in filing a notice of appeal is adequate; and whether the proposed appeal has any merit. 18 The applicant's explanation for his delay is set out at [3] above. There is a number of observations to be made about it. 19 First, the applicant has not stated why it took him two and a half weeks to discuss the Federal Circuit Court decision with his migration agent, or otherwise seek assistance to understand the decision. While the Court generally permits some latitude to self-represented litigants, "the lack of legal advice alone is an insufficient excuse for failure to lodge a notice of appeal within the time prescribed": see Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17], citing SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 (SZNYE) at [8] and SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 (SZJRV) at [6]. 20 Secondly, I agree with the Minister's contention that it is implausible that the applicant's migration agent would inform him of his right to appeal the Court's decision, but not inform him of the time limits that applied to the filing of such an appeal. In this respect, it is well-established that ignorance of an applicable time limit does not ordinarily constitute a satisfactory explanation: see, for example, SZNYE at [8] and SZJRV at [6]. 21 Thirdly, the applicant said in his affidavit that he decided to file a notice of appeal on or about 7 May 2015. He said he then enquired of the Court Registry as to how he should go about filing a notice of appeal, at which time he learned of the time limit. However, he has not stated when it was that he discussed the filing of his appeal with the Court Registry, nor why it took him a further 11 days, after he decided to file an appeal, to file his application for an extension of time. 22 I do not therefore consider the applicant has provided an adequate explanation for his delay such that I should exercise my discretion to extend time for filing a notice of appeal. 23 In any event, I do not consider the applicant's proposed appeal has any merits. The draft notice of appeal contains a single ground of appeal: see at [4] above. This ground essentially contends that by refusing to grant the applicant's request to reschedule his hearing, the Tribunal denied him procedural fairness and thereby fell into jurisdictional error. It also contends that the Federal Circuit Court erred in finding that the Tribunal did not commit any jurisdictional error. 24 For the reasons set out below, I consider that the Federal Circuit Court judge correctly decided that the Tribunal did not commit any jurisdictional error. There is, therefore, no reason to doubt the correctness of the decision in Zheng. 25 The Tribunal considered whether to adjourn the hearing under the discretionary statutory power conferred on it by s 363(1)(b) of the Migration Act 1958 (Cth) (the Act). That discretion must be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [63]. In Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41], Wigney J provided a useful summary of the relevant principles relating to legal unreasonableness in decisions to refuse adjournment applications, having regard to the decisions in Li and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, as follows: (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43]. (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44]. (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or "plainly unjust": Li at [28], [110]; Singh at [44]. (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47]. (e) Regard can also be given to the outcome of the decision: whether the "decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law": Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45]. (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49]. (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52]. (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102]. (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that "enough is enough": Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102]. (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113]. 26 In his email, the applicant requested the hearing be rescheduled because: "maybe I have no time to return to the NSW …". He did not state where he expected to be at the time of the hearing, why he might not be in New South Wales at that time, or how likely it was he would not be in New South Wales. Significantly, the address the applicant provided to the Tribunal was located in New South Wales. 27 Since the applicant provided no reason why he may not be able to be in New South Wales at the nominated time, I do not consider it unreasonable, in the sense illuminated in the observations set out at [25] above, for the Tribunal to find that the applicant had not provided a "reasonable reason" for his inability to attend. Accordingly, the Tribunal's reason for refusing the adjournment of the hearing did not involve any jurisdictional error. Moreover, the Tribunal's reason is quite consistent with the scope, subject and purpose of the relevant statutory provisions in issue, including the requirement that the Tribunal act according to substantial justice and the merits of the case, and carry out its functions in a way that was fair, just, economical, informal and quick: see s 353 of the Act. 28 The Federal Circuit Court judge did not therefore err in reaching his conclusion: see Zheng at [30]-[33].

Conclusion 29 For these reasons, the applicant's application for an extension of time to file a notice of appeal is dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.