FEDERAL COURT OF AUSTRALIA

Aslam v Minister for Home Affairs [2019] FCA 383

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 25 May 2018 be dismissed.

2.    The applicant pay the first respondent’s costs of the application as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1    This is an application for an extension of time to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) on 16 April 2018 refusing the applicant leave to amend his application for judicial review in that court and dismissing the applicant’s application for review of a decision of the second respondent (Tribunal), with costs: see Aslam v Minister for Immigration [2018] FCCA 1764. The Tribunal had affirmed the decision of a delegate of the first respondent, now the Minister for Home Affairs (Minister), not to grant the applicant a Student (Temporary) (Class TU) visa (Visa).

background

2    The following background, which I do not understand to be in issue between the parties, is extracted from the Minister’s submissions.

3    On 19 May 2016 the applicant applied for the Visa to enable him to complete an Advanced Diploma of Business in Australia.

4    On 18 August 2016 a delegate of the Minister refused to grant the applicant the Visa under s 65 of the Migration Act 1958 (Cth) (Act).

5    On 7 September 2016 the applicant applied to the Tribunal for review of the delegate’s decision.

6    On 5 December 2016 the Tribunal sent the applicant a letter advising that it was unable to resolve the matter favourably on the papers and inviting him to attend a hearing scheduled for 21 February 2017.

7    On 9 February 2017 the applicant sought an adjournment from the Tribunal on the basis that he wished to visit his mother in Pakistan who was suffering from late stage ovarian cancer.

8    On 13 February 2017 the Tribunal granted the adjournment and informed the applicant by email sent to his authorised representative that the hearing had been relisted to 8 March 2017 at midday (Second Hearing Notice).

9    At the hearing on 8 March 2017, the applicant did not appear before the Tribunal. At 2.00 pm on 8 March 2017 the applicant contacted the Tribunal to provide a copy of a medical certificate.

tribunal decision

10    The Tribunal proceeded in the applicant’s absence without taking any further action to allow the applicant to appear before it, and on 13 March 2017 it affirmed the delegate’s decision. I note that in so proceeding it referred to s 426A of the Act. That section, which permits the tribunal to proceed to make a decision on a review without taking any further action to allow or enable an applicant to appear before it, in circumstances where an applicant has been invited to appear in accordance with the provisions of the Act but does not do so, applies to Pt 7 reviewable decisions. The equivalent provision, which applies to the delegate’s decision in this case, being a Pt 5 reviewable decision, is s 362B of the Act which is in relevantly identical terms to s 426A. The Tribunal’s reference to s 426A of the Act, to which no issue was or is raised by the applicant, was clearly a typographical error that would not constitute jurisdictional error: see S14/2002 v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35].

11    The Tribunal noted that the delegate had refused to grant the Visa because the applicant had not provided an explanation as to the value of the courses he chose to study and therefore did not satisfy the requirements of Sch 2 cl 572.223 of the Migration Regulations 1994 (Cth) (Regulations). It further noted that, having regard to the applicant’s current proposed course of study, the relevant Visa subclass was subclass 572. The decision criterion applicable to subclass 572 is in cl 572.223 of the Regulations, however the Tribunal identified that the issue was whether the applicant met the time of decision criterion in cl 573.223, rather than cl 572.223, and set out the requirements of the former clause. Given that the requirements in cl 572.223(1)(a) are the same as those in cl 573.223(1)(a) this error is of no consequence. The Tribunal also referred to Direction No. 53 made under s 499 of the Act.

12    The Tribunal noted that the applicant had not submitted any information since the delegate’s decision to explain the value of the courses he had chosen and that in the absence of such information it could not determine and had no information before it to assess whether, in the particular circumstances of the applicant, the courses he had chosen had any value to him at all. On that basis and having considered the applicant’s circumstances, immigration history, and other matters it considered relevant, the Tribunal concluded that it was not satisfied that the applicant intended genuinely to stay in Australia temporarily.

federal circuit COURT proceeding

13    On 13 April 2017 the applicant lodged an application for judicial review with the Federal Circuit Court. In that application the applicant raised two grounds of review as follows:

1.    the tribunal erred in law and in its jurisdiction when it failed to exercise procedural fairness by overriding a medical certificate declaring that the applicant was unwell on the day of the hearing; and

2.    the tribunal erred in law and in its jurisdiction when it referred to cl 573.223(1)(a) but did not state clearly what breach the applicant was found to have made.

14    At the commencement of the hearing before the primary judge, the applicant informed the court that he no longer wished to rely on the grounds in his application for review and proposed instead to rely on the following ground:

Contrary to the Tribunal’s assertion that it had looked (as it was required to do) for evidence of the applicant’s circumstance in their own country, it did not do so as evidenced by a suite of medical documents concerning the applicant’s mother (in his own country) having been submitted earlier by the applicant and having been totally ignored.

15    The primary judge set out the background to the proceeding. Relevantly, the primary judge referred to the applicant’s request for an adjournment of the Tribunal hearing scheduled for 21 February 2017, that the Tribunal acceded to that request and scheduled a new hearing for 8 March 2017 and informed the applicant of that fact by letter dated 13 February 2017. The primary judge noted that the applicant did not respond to the Second Hearing Notice and did not appear at the time and date of the rescheduled hearing. His Honour relevantly said:

After the time of the hearing, at 2.00 pm on 8 March 2017, the applicant sent the Tribunal a medical certificate in which it was stated that the applicant was:

... unfit to engage in his/her regular study/employment between Wednesday, 8 March 2017 to Friday, 10 March 2017 inclusive.

16    After setting out this background, the primary judge turned to consider whether the applicant should be granted leave to amend his application to rely on the new ground. His Honour had regard to the applicant’s explanation for his delay in raising the new ground of review and the merits of the ground. In relation to delay, his Honour observed that, having been granted leave to amend his application in May 2017, the applicant had failed to do so. His Honour found that it was not satisfactory for the applicant to have been given leave in May 2017 to amend his application and for him not to have given sufficient thought to the grounds in his application so as to have been able to amend or to raise the new point within the time allowed by the court’s orders.

17    The primary judge considered the strength of the proposed ground and found that it was not a strong argument that the Tribunal was obliged to consider the circumstances of the applicant’s mother in determining the applicant’s circumstances as they might relate to cl 572.223 of the Regulations. His Honour found that this was so because:

    first, it is well accepted that in order to complete a review of a delegate’s decision, a tribunal must consider the material before it and the case that is raised either expressly by the applicant or implicitly by the material. His Honour noted that how far a tribunal has to go in determining what case might arise from the material depends on all of the circumstances and, in particular, the strength of the case that is said to arise from the material;

    secondly, the applicant never sought to make a case that his mother’s illness supported the conclusion that he genuinely intended to stay in Australia temporarily and that he thus satisfied cl 572.223(1)(a) of the Regulations; and

    thirdly, the applicant put forward the material relating to his mother solely to obtain a brief adjournment of the hearing.

18    The primary judge went on to find that, in any event, there was not a sufficiently strong argument that the Tribunal overlooked the material concerning the applicant’s mother in assessing all of the applicant’s circumstances. His Honour found that in response to the applicant’s request for an adjournment on 8 March 2017, the Tribunal expressly said that it had considered the applicant’s request, which included all of the material and the circumstances of the applicant’s mother. From that, his Honour inferred that the Tribunal was well aware of the circumstances affecting the applicant’s mother and the way in which it affected the applicant at the time of the adjournment. His Honour found that, given that the Tribunal made its decision on 13 March 2017, which was a short time after it had acceded to the first adjournment application on 13 February 2017, it was unlikely that it would simply have overlooked that material, particularly in circumstances where there was little or nothing else before the Tribunal from the applicant.

19    The primary judge thus concluded that, when the Tribunal said that it had considered the applicant’s circumstances, it was likely that those circumstances included the applicant’s mother’s illness.

20    For those reasons, the primary judge refused the application to amend the judicial review application and, as the original grounds had been abandoned, dismissed the application for judicial review.

application for an extension of time AND LEAVE TO RAISE NEW GROUND ON APPEAL

21    On 22 May 2018 the applicant lodged his application for an extension of time to commence an appeal in this Court. In support of that application the applicant relies on an affidavit sworn by his solicitor, Mr Melvin Newman, in which Mr Newman deposes that:

2.    When the matter came on for judgment in the Federal Circuit Court on 16 April 2018, His Honour granted leave to apply to amend the application but at the same time refused leave to amend the application, His Honour delivering judgment instanter. To date the judgment has not been published and only the orders are available which are annexed. and the applicant is hampered in formulating an appeal thereby. Additionally the applicant’s mother is, I am told, suffering with cancer and this has also led to delay in the obtaining of instructions.

3.    Those instructions have finally been completed this afternoon.

22    A draft notice of appeal was also provided with the application for an extension of time. That notice of appeal identifies one ground of appeal as follows:

1.    The Tribunal ignored a report concerning the applicant’s mother’s terminal cancer which at the time of the Tribunal’s hearing caused the applicant to be unable to attend. In the circumstances the Tribunal ought not to have proceeded to hear the matter in absentia but ought instead to have allowed an adjournment for a reasonable period of time inorder that the proceedings be conducted with procedural fairness.

23    It is relevant to note at this stage that the proposed ground of appeal is new. Whilst it bears some resemblance to ground one in the application for judicial review filed with the Federal Circuit Court, it is not the same as that ground and, in any event, the grounds raised in that application were abandoned by the applicant at the hearing before the primary judge. Further, the proposed ground of appeal does not arise from nor does it bear any resemblance to the amended ground which the applicant sought leave to rely on in the Federal Circuit Court.

24    Rule 36.03(a)(ii) of the Federal Court Rules 2011 (Cth) (Rules) requires that an appeal must be filed within 21 days after the date on which the judgment appealed from was pronounced or the order was made. In this case, orders were made by the Federal Circuit Court on 16 April 2018. Any appeal from those orders was therefore to be filed on or before 8 May 2018. The application for an extension of time was filed on 25 May 2018, more than 14 days after the prescribed period had elapsed. Thus the applicant requires an extension of time.

25    The principles applicable to the exercise of the Court’s power to extend time are well established. While a court has a wide discretion to extend time, the considerations to which it has regard ordinarily include:

(1)    the length of the delay;

(2)    the reasons given for the delay and whether any explanation would constitute sufficient grounds for departure from the general rule;

(3)    whether granting the extension would result in any prejudice to the respondent; and

(4)    the applicant's prospects of successfully prosecuting the appeal if the extension of time was to be granted. Those prospects are to be assessed on a reasonably impressionistic basis: see MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] quoting MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62].

See AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 at [10]-[12].

26    It is also necessary to set out the principles applicable to the Court’s exercise of its discretion to grant leave to raise a new ground on appeal. Those principles are also well established. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] a Full Court of this court relevantly said:

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

Consideration

27    I turn then to consider whether an extension of time should be granted to the applicant to appeal the decision of the primary judge.

28    First, insofar as an explanation for the delay is concerned, Mr Newman indicated in his affidavit that the applicant was unable to file a notice of appeal in time because the primary judge gave an ex tempore judgment and, as at the date of swearing the affidavit, his Honour’s reasons had not been published such that the applicant had been hampered in formulating an appeal. Mr Newman also deposed to the fact that the applicant’s mother had cancer which led to a delay in obtaining instructions which had only been received on 21 May 2018. While the Minister indicated that the applicant had provided a cogent explanation for the delay, I note that the applicant’s legal representative was in court when judgment was pronounced on 16 April 2018 such that the applicant was aware of the primary judge’s reasons for decision. He could have filed an appeal from that date.

29    The next question is that of prejudice. The Minister does not point to any relevant prejudice should an extension of time be granted.

30    The final issue to address is the merit of the proposed ground. That is an issue that is common both to a consideration of the application for an extension of the time and consideration of whether, if time was extended, leave would be given to the applicant to raise the new ground on appeal. That issue is, in my opinion, central to this application.

31    The applicant has provided written submissions and today also made oral submissions. In his written submissions, the applicant said that the question of procedural fairness was at the heart of the matter. He said that the fact that his mother was dying and that he was also unwell caused him to miss the Tribunal hearing and that these matters were completely ignored or overlooked by the Tribunal thus causing him a grave injustice. The applicant agrees, to an extent, with the Minister’s submissions but departs from those submissions in relation to the Minister’s analysis of the reasons provided by the Tribunal for refusing an adjournment of the hearing.

32    The applicant noted that the medical report provided by him to the Tribunal stated that he was unfit for work but did not specifically state he was unfit to have “a chat” with the Tribunal. The applicant contended that the Tribunal does not publish guidelines about how general practitioners should write their reports, and that it was only in circumstances where there was an unpainful broken limb that would not impact on the applicant’s ability to travel that it could reasonably be posited that unfitness for work did not embrace unfitness to be examined. The applicant contended that he was not disabled, but that he was unwell. The applicant further submitted that the primary judge was wrong to have dismissed the amended application, which raised the fundamental issue of procedural fairness, and that imputing thoroughness to the Tribunal where it asserted that it had read or considered all of the material was not to the point.

33    In oral submissions, the applicant identified [14] of the Tribunal’s decision as key. There the Tribunal said:

The applicant, on the date of the hearing, submitted a medical certificate after this decision was written which indicated that he was unfit for his regular study/employment. As the medical certificate did not indicate that the applicant was unfit to attend the hearing, that he would not be able to have a short chat at the Tribunal about his review application the Tribunal finds that the certificate did not indicate that he was medically unfit to attend the hearing. As a result, the certificate has no relevance to his attendance at the hearing.

(original emphasis.)

The applicant submitted that the Tribunal, in effect, discarded the medical certificate provided by the applicant because it did not address the difficulties the applicant would have in attending the hearing. He further submitted that the medical certificate he provided should have been considered in the context of the factual matrix which included evidence of his mother’s illness. The applicant contended that it may have been the case that the consulting doctor considered he was affected by his mother’s illness and the Tribunal should have taken this into account given it was aware of those facts. In other words, the applicant contended that the ground of appeal concerned the totality of the evidence which was before the Tribunal, which he said the Tribunal ignored.

34    As I understand the applicant’s proposed ground of appeal, it raises the issue of whether it was reasonable for the Tribunal to proceed to hear the matter in his absence and not grant an adjournment. The principles applicable to legal unreasonableness were recently summarised by the Full Court in Minister for Immigration and Border Protection v Haq [2019] FCAFC 7. At [72]-[74], Colvin J relevantly said:

72    The present case concerns the scope of review of a decision made in the exercise of a discretionary procedural power entrusted to the Tribunal. In particular, it is concerned with review for alleged failure to conform to an implied standard of reasonableness applicable to the exercise of the power. Unreasonableness in the present context is to be distinguished from the use of unreasonableness to describe compendiously the various circumstances in which there may be jurisdictional error. It is also to be distinguished from review for unreasonableness of an otherwise within jurisdiction decision as to credibility or factual matters where findings cannot be said to be unreasonable unless they manifest extreme illogicality that takes the matter beyond instances where reasonable minds may differ. Unreasonableness as alleged here is a separate review ground that seeks to impugn an exercise of discretionary power on the basis that it exceeds the authority reposed in the decision-maker because the power is qualified by a requirement that the power be exercised reasonably. Relevantly for present purposes, the following propositions may be taken from the recent decision of the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30:

(1)    statutory discretionary powers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law (at [4], [53], [59], [80], [88], [131]);

(2)    the standard applies ‘usually’ and is subject to the possibility that a higher standard may be expressly required (at [53], [131]);

(3)    a decision which lacks an evident and intelligible justification is unreasonable (at [10], [82]);

(4)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others – the category is not limited to such instances (at [10], [59], [82], [89], [133]);

(5)    where review is sought on unreasonableness grounds the Court must not stray into evaluating for itself how it might exercise the discretion entrusted by statute to the decision maker. For that reason, the test for unreasonableness may be described as ‘necessarily stringent’ at [11] (Kiefel CJ), ‘extremely confined’ at [52] (Gageler J, adopting the language of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1), in ‘the realm of the extraordinary’ at [70] (Gageler J) or as being expressed in ‘strong terms’ at [135] (Edelman J);

(6)    on appeal in a case where review of a decision is sought on the basis that it is unreasonable in result, the Court must form its own view as to whether the decision is reasonable rather than defer to the evaluation of the primary judge (such as might be the case where a discretionary judgment is involved). The question is a legal one which admits of only one correct answer (recognising that the character of the evaluation to be undertaken may mean that reasonable minds might differ as to whether a particular decision is reviewable for unreasonableness) (at [17]-[18], [54]-[56], [85]-[87], [154]-[155]).

73    In addition, a case like the present, where the decision concerns the exercise of a procedural power to adjourn a hearing or defer a decision, may be distinguished from a case where the decision that is said to be unreasonable invites an exercise of a statutory power that is conditioned upon a state of satisfaction that is a matter of opinion or policy. In the latter instances it is harder to be satisfied that the power has been exercised unreasonably by reason of the scope of the discretion entrusted to the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [111]-[112] (Gageler J). Whereas, the identification by the court of the boundaries of reasonableness in the exercise of discretionary procedural powers such as the power of a tribunal to adjourn are less likely to involve intrusion into the field of discretion entrusted to the decision-maker because matters bearing upon the exercise of the power are familiar to a court.

74    Where review is sought on the basis of unreasonableness in the sense applicable in this case, it has been emphasised in this Court that where reasons are provided, an evaluation as to whether the decision was unreasonable should treat the reasons as the focal point for assessment: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47]. The reasons expose why the discretion was exercised in a particular way and if the reasoning provides an evident and intelligible justifiable for the decision then there is no unreasonableness. This approach accords with the emphasis upon the need to undertake the evaluation as to whether a decision fails to meet the standard of reasonableness in a manner that recognises that the exercise of the discretion is entrusted by the statute to the repository of the power. Review for unreasonableness must be confined to those cases where the repository’s decision lacks a justification of the kind required to bring it within the implied requirement that the discretion be exercised reasonably.

35    Paragraph 14 of the Tribunal’s decision and the Tribunal’s decision to reject the late application for the adjournment needs to be considered in context. That is, as the Tribunal noted at [5] of its decision, on 13 February 2017 it wrote to the applicant to advise him of the rescheduled hearing date and, in that correspondence, recorded that the applicant “was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice”. The Tribunal also recorded that “service” of that letter was properly effected and no response was received from the applicant. It was in those circumstances that the Tribunal proceeded to hear the application.

36    The Tribunal’s reasons disclose “an evident and intelligible justification” for its decision to exercise its power under s 362B of the Act to determine the review. The Tribunal was entitled to rely on the medical certificate, which provided no explanation of the illness that the applicant was suffering from and, as the Tribunal noted, did not explain whether and, if so, why he was unfit to attend a hearing.

37    Based on the Tribunal decision, the medical certificate appears to have been formulaic. As the Minister submitted, a certificate of that nature is unlikely to persuade a court to grant an adjournment: see, for example, Ahmad v Minister for Immigration and Border Protection [2018] FCAFC 199 at [2]-[5]. But, in any event, it cannot be said that the Tribunal’s decision to proceed to determine the matter, given the nature of the medical certificate, is unreasonable. It explained why it rejected that certificate.

38    It was otherwise open to the Tribunal to proceed to resolve the application, particularly having regard to the fact that, as I have observed, the applicant had been put on notice of the possibility of having his matter determined adversely; that the applicant did not respond to the Tribunal’s Second Hearing Notice; that the Tribunal hearing had previously been rescheduled so as to facilitate the applicant’s travel to Pakistan to visit his ill mother; and that the applicant provided the medical certificate to the Tribunal after he had failed to appear and took no steps to notify the Tribunal, prior to the listed hearing time, that he would not appear.

39    For those reasons, in my opinion, the proposed ground of appeal does not have sufficient merit such that I would allow the application for an extension of time to bring an appeal or permit it to be raised as a new ground on appeal.

conclusion

40    Accordingly, I will make an order dismissing the application for an extension of time. As the applicant has been unsuccessful, it follows that he should pay the first respondent’s costs.

Associate:

Dated:    27 March 2019