Federal Court of Australia

Al-Zaweeti v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 635

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The applicant be granted leave to file the amended written outline of submissions sent to Registry on 24 May 2023.

3.    The application for an extension of time be dismissed.

4.    The applicant pay the first respondent's costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MEAGHER J

background

1    This is an application for an extension of time to appeal from a decision of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal, the second respondent.

2    The applicant is a citizen of Iraq and arrived in Australia in 2013 to study an English Language Course.

3    On 14 August 2019, the applicant applied for a Student (Temporary) (Class TU) Student (subclass 500) visa. On 18 October 2019, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused his visa application pursuant to s 65 of the Migration Act 1958 (Cth), as the applicant did not satisfy cl 500.214 in sched 2 of the Migration Regulations 1994 (Cth). Specifically, the applicant was unable to satisfy the delegate that he had sufficient funds available to meet the cost and expenses of his temporary stay in Australia.

4    For the reasons given below, the application for an extension of time is dismissed.

THE TRIBUNAL

5    On 7 November 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. By a letter dated 27 November 2019, the applicant was invited to attend a hearing with the Tribunal on 8 January 2020. The applicant was requested to provide the following documents to the Tribunal at least seven days prior to the hearing:

    A copy of his current Confirmation of Enrolment (COE) or other documents which evidence his current enrolment as defined in cl 500.111 and required by cl 500.211(a) of the Regulations;

    Documents showing his past studies and work in Australia; and

    Documents evidencing that he has sufficient funds to meet the costs and expenses during his stay in Australia, or evidence of the annual income of his parents/spouse/de facto partner that he has genuine access to.

6    The letter also stated:

If you wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4.

…

Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request.

7    On 7 January 2020, the applicant sought an adjournment of the Tribunal hearing, on the basis that he was unprepared to answer questions, had only just taken legal advice in relation to the hearing and that he had memory problems from anxiety and depression but that his doctor and psychologist were on holidays and therefore unable to provide “support evidence”. The adjournment application was refused on the same day.

8    On 8 January 2020, the applicant attended the Tribunal hearing where the Member affirmed the Minister's decision and gave oral reasons for so doing. On 21 January 2020, the applicant emailed the Tribunal requesting written reasons for the decision, which were provided to the applicant on 31 January 2020.

9    In its reasons, the Tribunal noted that while the Minister originally refused to grant the visa on the basis that the applicant did not satisfy the criteria that he had sufficient funds available to him pursuant to cl 500.214 of the Regulations, there had been a change in circumstances such that the issue before the Tribunal was whether the applicant met the enrolment criteria for the visa pursuant to cl 500.211 of the Regulations.

10    The Tribunal’s reasons state that despite the applicant having been asked to provide a copy of his current COE in the letter dated 27 November 2019, none had been forthcoming, and his oral evidence was that he was not sure whether he was enrolled in any course in Australia. Pursuant to s 359AA of the Act the Tribunal put to the applicant the Provider Registration and International Student Management System (PRISMS) information which contained details of his study history in Australia, including that his COE had been cancelled by his provider. After confirming that he had had sufficient time to examine the information, the applicant explained that while he had issues with his sponsorship, the provider was prepared to re-enrol him.

11    The applicant then sought additional time from the Tribunal to arrange enrolment in a course. He told the Tribunal that he only became aware of the cancellation of his COE when shown the PRISMS record by the Tribunal. The Tribunal declined to allow time for the applicant to enrol in a course as it was of the view that the applicant would have known about his enrolment issues since at least 27 November 2019.

12    Accordingly, the Tribunal was not satisfied that the applicant met the criteria in cl 500.211 of the Regulations, and therefore affirmed the decision under review.

THE FEDERAL CIRCUIT COURT

13    On 12 February 2020, the applicant lodged an application for judicial review of the Tribunal's decision with the Circuit Court. It was accepted for filing by the Registry on 13 February 2020, which meant that it filed one day outside the prescribed time limit in s 477(1) of the Act.

14    The Circuit Court held its hearing on 20 August 2020 and judgment was handed down on 3 November 2020 dismissing the application with costs: Al-Zaweeti v Minister for Immigration & Anor [2020] FCCA 2968. The reasons of the primary judge were provided to the parties 27 days later on 30 November 2020.

decision of the primary judge

15    The ground of review set out by the primary judge was as follows:

My visa initially refused based on financial issues, but I proved that I had enough money to support my application.

I brought my CoE and every required documents to support my claim, so I believe they made a jurisdictional error.

16    The primary judge set out extracts of the Tribunal’s reasons and stated that the applicant did not take issue with the factual matters contained therein, but “gave some of the matters a different complexion” (at [15]), including that:

    He was discriminated against by the Tribunal by setting down a hearing date two weeks after filing his application;

    He was discriminated against and harassed by the Tribunal by the questions it asked of him relating to his study and enrolment;

    He was told his COE was cancelled and the Tribunal refused to provide him time to get a new one;

    The Tribunal failed to look at his financial capacity despite that being the reason why his visa was refused;

    He was not provided enough time to think about the questions the Tribunal asked despite them knowing he had mental health issues;

    He was not informed that his COE had been cancelled;

    The Tribunal's decision could have been influenced by another party;

    The Tribunal refused to not publish his name despite him requesting so for safety reasons;

    The Tribunal did not bring his files; and

    The Tribunal's decision was predetermined and discriminatory and ultimately unlawful.

17    The primary judge dealt with the date of filing of the applicant’s application in paragraphs [10] and [11] as follows:

The applicant lodged this application for judicial review on 12 February, however due to a delay in the Registry (considered by the first respondent) the application was accepted for filing on 13 February, 2020.

Having regard to the reason for the delay and the length of the delay, I am satisfied that in the circumstances of this case it is appropriate to extend the time within which the applicant can commence his application for review without considering any of the other matters ordinarily considered on an application to extend time.

18    At [16] the primary judge correctly identified that the criteria for the grant the visa included that the applicant must “be enrolled in a course of study at the time of the decision.” (Emphasis in the original)

19    The primary judge, in accepting the Minister's submissions, found that the Tribunal made the only decision available to it to affirm the decision under review: at [18]. His Honour concluded that the applicant was merely expressing disagreement with the Tribunal’s decision which does not amount to jurisdictional error: at [22].

20    The primary judge noted that the applicant was on notice for six weeks prior to the hearing that he needed to provide a copy of his COE at least seven days prior to such hearing, and did not do so, nor did he bring a valid COE to the hearing: at [20]. In doing so the primary judge referred to the letter sent by the Tribunal to the applicant dated 27 November 2019 which highlighted the relevant Regulations and the information requested.

21    The primary judge found there was no evidence before the Court to support the applicant’s submission that he had been unable to obtain a COE because it was “Christmas time”: at [20].

22    The primary judge found that it was the applicant’s responsibility to satisfy the Tribunal that he met the relevant criteria for the grant of the visa, and the Tribunal's refusal to permit the applicant more time to obtain a valid COE was not unreasonable in light of him being on notice of the requirement since 27 November 2019: at [21]. Accordingly, the primary judge was not satisfied that the Tribunal’s decision disclosed jurisdictional error and dismissed the application with costs: at [24].

THE APPEAL

23    The Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The Court’s appellate jurisdiction is confined to errors of law only. The appeal is by way of rehearing and the Court’s role is to determine that the conclusion of the primary judge regarding the decision of the Tribunal is not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18] (Kiefel CJ), [20], [56] (Gageler J), [117] (Nettle and Gordon JJ) and [153] (Edelman J). This Court is unable to assess the merits of the application for the visa or any matter that is unrelated to jurisdictional error. For this reason, as will become clear, many of the draft grounds of appeal cannot be considered by this Court.

24    The applicant was self-represented before the Tribunal, the Circuit Court and this Court. At the hearing in this Court the applicant was assisted by an interpreter although he frequently proceeded, of his own accord, without the interpreter’s assistance.

25    The hearing commenced on 27 April 2023. The applicant had not filed a draft notice of appeal, and the respondent had not filed an Appeal Book in compliance with orders of a Registrar made on 17 March 2021. A draft notice of appeal appeared to have been emailed by the applicant to the Registry at some point in 2021, however it had not been accepted for filing and therefore the Minister’s representatives had not had the benefit of reading it nor responding to it in their submissions.

26    The Minister’s representative had a hard copy of the Appeal Book available to provide to the applicant and submitted that the hearing could proceed on the basis that the Appeal Book only contained material with which the applicant was already familiar, being the information before the primary judge and the primary judge’s reasons. The applicant submitted that he did not recall all of the material. Given that the draft notice of appeal had not been filed, and that the order in relation to the filing of the Appeal Book had not been complied with, I adjourned the hearing until 24 May 2023 and made fresh orders for the filing of the draft notice of appeal and amended submissions.

27    The material before the Court includes:

    The applicant's application for an extension of time and supporting affidavit, lodged electronically on 5 March 2021 and accepted for filing on 11 March 2021, annexing a copy of the Circuit Court judgment and an email from Registrar Murray Belcher;

    Minister's outline of submissions, lodged and filed on 16 December 2022;

    List of Authorities, lodged and filed on 24 April 2023;

    Applicant's submissions, lodged on 27 April 2023 and filed on 17 May 2023;

    Appeal Book, lodged and filed on 4 May 2023 past 4:30 pm, therefore is taken to be filed on 5 May 2023 in accordance with r 2.25(3)(b) of the Federal Court Rules 2011 (Cth);

    Unsworn affidavit of the applicant, lodged on 5 May 2023 and filed on 8 May 2023;

    Unsworn affidavit of the applicant, lodged on 12 May 2023 and filed on 19 May 2023, annexing a draft notice of appeal;

    Minister's amended outline of submissions, lodged and filed on 24 May 2023; and

    Applicant's amended submissions, lodged and filed on 24 May 2023.

28    The Minister's representative took no issue with the defects in the applicant's unsworn affidavits and neither consented nor opposed leave being granted to the applicant to file the amended submissions. Subject to what I have said below about the nature and content of the unsworn affidavits (and draft notice of appeal and submissions) I have had regard to them and grant leave to the applicant to file his amended submissions.

Extension of time

29    As prescribed by r 36.03 of the Rules, a notice of appeal must be filed within 28 days after the date on which judgment was handed down, or on a date fixed by the Court below. Rule 2.25(1) of the Rules specifies that a document is filed if it is lodged with the Court in accordance with r 2.21(1) and it is accepted by the Registry by having a seal of the Court affixed to it. Rule 2.25(3) specifies that if a document is sent by electronic communication and is accepted by the Registry, it is taken to have been filed on that day if filed before 4:30 pm. The applicant lodged an application for an extension of time via the Court's eLodgement system on 5 March 2021 at 3:59 pm, which was accepted for filing on 11 March 2022. Accordingly, the document is taken to be filed on 5 March 2021. The primary judge handed down judgment on 3 November 2020, therefore the appeal was required to be lodged by 1 December 2020. Accordingly, the applicant requires an extension of time of 94 days.

30    Pursuant to r 1.39 of the Rules, the Court has discretion to grant an extension of time before or after the time expires, and regardless of whether the application for an extension has been made before the time expires. The Court will generally have regard to the length of delay, any explanation provided for the delay, the prejudice to the other party and the merits of the appeal: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28], and Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-349 cited in SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [17].

31    As set out at paragraph [33(e)] in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 (Yates, Wheelahan and O’Bryan JJ):

The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

32    With respect to the application for an extension of time, the applicant’s affidavit of 5 March 2021 provided the following reasons for the delay in filing his appeal:

A- I have been suffering extreme anxiety, depression, delusion, harm since the beginning of 2020 because of the FCC and the department action. So, I cannot absorb information normally.

B- I have received judgement on 30/11/2021 and have not received anything on 03/11/2021.

C- I did not know whether do I have the right to appeal the decision because nothing was written in my judgement and orders, so when I asked the court about that, they never replied.

D- The FCC resisted the application applied on 13/02/2020 because they applied different rule only for my application, then after a while the FCC changed their mind and confirmed the application applied on 12/02/2020 according to the rule/law written on the application and they made an error. In the hearing, the judge’s position was the application lodged on 13/02/2020, and in his judgement, the application received on 12/02/2020 while lodged on 13/02/2020 and that is clearly against the law.

E- The department resisted the application applied on 13/02/2020 based on court documents, then after a while the department accepted the application applied on 12/02/2020 after the FCC confirmed the application applied on 12/02/2020 according to the rule/law written on the application and the FCC made an error, and then I was granted a bridging visa A. Later, the department changed their mind and refused to accept the application applied on 12/02/2020 in their submission. In the hearing, the department opposes the application as they claimed the application applied on 13/02/2020.

F- because the FCC discriminated me very loudly and before them, AAT and the department, so frankly I have lost my trust and faith in all courts. In other words, I believe I am only spending money without having real justice in Australia because all my strong evidence has been deleted from the judgement and that is unbelievable.

(Errors in original)

33    Further, in his submissions of 27 April 2023, amended submissions of 24 May 2023 and unsworn affidavits of 5 May 2023 and 12 May 2023, the applicant made the following further submissions:

    That he had disengaged with his psychologist due to financial issues and later saw a psychiatrist who prescribed medication that he also became unable to afford. Without medication he becomes tired and anxious and his mood and his body are affected.

    He suffered three gum infections requiring three root canal treatments.

    He was unable to obtain legal representation.

    He did not understand the appeals process.

    He did not realise the duration of the delay mattered.

    He was affected by uncertainty as to the identity of the respondent’s solicitors as “they came without papers”.

34    The applicant submitted that the history of the matter showed that he had been a victim of systematic discrimination. He submitted that, because of the claimed discrimination, at various times he was deprived of a bridging visa which would have given him access to work and study rights, which he considers a deliberate action to so deprive him of his rights. He also claimed that there was political intervention in his case. These issues taken together, the applicant submitted, “turned his life upside down”, meant he could not concentrate, and led to a loss of faith in the justice system which in turn affected his late application to appeal in this Court, and hence his need for an extension of time.

35    In submissions the Minister acknowledged that self-represented litigants are usually afforded some latitude, however the absence of legal advice is, alone, not a sufficient basis for the granting of an extension of time: Manna v Minister for Immigration and Citizenship [2013] FCA 400, [17]. The Minister correctly conceded no prejudice was occasioned by the delay. The Minister opposed granting an extension of time on the basis that the application had no merit.

36    While the delay in this matter is not insignificant, I accept that the applicant was not provided with written reasons until the day prior to his appeal being required to be filed with this Court which caused him prejudice. He has provided some explanation for the delay, although unsupported by evidence. I therefore turn to the merits of the draft grounds of appeal.

Draft grounds of appeal and orders sought

37    The draft notice of appeal contains 33 numbered paragraphs under the heading 'Grounds of appeal'. They are:

1.    I have not lodged any file with the Federal Circuit Court of Australia (FCC) on 13/02/2020, but I filed one on 12/02/2020 (court emails).

2.    A file, which is/was on my name, has wrong statement, dates, and did apply different rule than all other applicant’s rule based on their wishes not based on the law.

3.    For the reasons set out above (the date of my application is/was wrong and applied different rule), I lost my study and work right.

4.    the FCC made an error of law in failing to afford procedural fairness to me in that the Court deleted/ ignored all my seek (orders sought) and grounds of application from their judgement and orders.

5.    the FCC made an error of law in failing to afford procedural fairness to me in that the Court ignored/ deleted my strong evidence (amended application and submissions) on the judgement and orders.

6.    the FCC made an error of law in failing to afford procedural fairness to me in that the Court rejected my request to adjourn the final hearing despite I was having every evidence to support that including medical reason, court emails and other party emails.

7.    I was not given a fair opportunity at all to present my case in the FCC.

8.    I was degraded by the ministry, the tribunal, and the FCC by lying to me and preventing me form my basic right.

9.    I Inundate the FCC with emails explaining that they applied different rule on my application and interpreting law in the wrong way, but they kept insisting their position for almost 9 weeks.

10.    I Exchanged emails with the department explaining that I should get a bridging visa A (full study and work right) according to the law, and based on the evidence I provided (the receipt and the court emails), but they kept insisting their position for almost 10 weeks.

11.    Both of them changed their position/idea/decision after they realized they had been caught and I would not stop looking for my right legally; and not leaving Australia in anyway, which that was their purpose.

12.    The FCCA erred in failing to find that the Tribunal asked itself the wrong question and it was even not in their invitation letter, the member asked why you are studying the diploma when you already finished master’s degree (T18.18). By the way, she asked me that question even after she had not given me a chance to bring a new COE. (that was also politically motivated to pass the information to others for future applications).

13.    The FCCA erred in failing to find that I was denied procedural fairness by the tribunal, not giving enough time and asking/reminding me that if I want an interpreter.

14.    I could not study two courses at QUT university to apply for a permanent residency after I had assessed my overseas degree (architecture degree) because of the visa condition and later sever mental health problems (I have been seeing regularly psychologist and psychiatrist).

15.    another party took advantage over me because of their action in prohibiting me from getting the right visa which led not being able to lodge proper application because of mental health issues.

16.    I could not work at all because I was granted a new visa (no work right).

17.    I did suffer a lot of unbelievable harm when the department told me on the phone you are not be able to study and work forever.

18.    My harm, anxiety, depression deteriorated when I realized I have been facing systematic discrimination from (the department, AAT, and the FCC in Brisbane).

19.    y harm, anxiety, depression sharply exacerbated when I realized I had been facing conspiracy or practical theory, means they are cooperating for a while to force me to leave the country.

20.    I got invitation to the hearing from AAT at the same day my COE has been cancelled! That was because of their cooperation.

21.    I was extremely sceptical of the hearing when I got invitation from the tribunal so quickly (in just two weeks) because: lawyers were telling me it usually takes at least more than six months; and from their website can be read; and from the tribunal cases, it takes up to two years.

22.    I was not ok mentally during AAT hearing, the member refused to adjourn the hearing and did not try enough to help me understanding their requirements before and in the hearing.

23.    The department refused my visa because of financial issues but AAT asked me about fresh COE! (Wrong question).

24.    The member told me I need fresh COE to calculate the money (T12.00-12.22), she should have remitted the decision after considering I was like having the same COE because I had enough money and that was the reason I went to AAT.

25.    I told the member the college asked me to start your study before issuing a refresh COE but I could not because of criterion 500.212 Direction69 banned me from resume studying before getting a student visa.

26.    I told the member that it is the same COE that I am/was having, I had never understood it was written it was cancelled (T15.15-T18.17). She did not tell me or circulate to me that word.

27.    If I had understood my COE has been cancelled, I would probably have taken five minutes a rest (finding an excuse), called the college to issue a new COE, paid money, accept all conditions (already I knew their condition), then resume our hearing while we were talking about COE, potentially I would have got it, or just before her final decision (about 9 minutes took the rest when she was preparing her decision).

28.    The Tribunal and the FCC made a preconceived judgment/order based on systematic discrimination that I faced (explained in details).

29.    I was abused by all of them (the department, the tribunal, and the FCC) FOR VERY LONG TIME (for months), how many years require to get back to normal situation, if at all!. For example, when a person is abused for a few minutes, it takes a few years to get back to normal.

30.    Since the beginning of 2020, I have been facing sever health issues such as high blood pressure (recently raised for the first time ever), high glucose (recently raised for the first time ever), digestion, hear loss and brown, delusion, memory loss, and mental health issues. I have every concern more problems will rise after a while because it takes time to get symptoms and develop disease.

31.    It takes time for me to reach the required/recommended amount of medicine because I cannot take it immediately, it increases gradually, so I could not do my best at the FCC.

32.    The FCC resisted the application applied on 13/02/2020 becase they applied different rule only for my application, then after a while the FCC changed their mind and confirmed the application applied on 12/02/2020 according to the rule/law written on the application and they made an error. In the hearing, the judge’s position was the application lodged on 13/02/2020, and in his judgement, the application received on 12/02/2020 while lodged on 13/02/2020 and that is clearly against the law.

33.    The department resisted the application applied on 13/02/2020 based on court documents, then after a while the department accepted the application applied on 12/02/2020 after the FCC confirmed the application applied on 12/02/2020 according to the rule/law written on the application and the FCC made an error. Later, the department changed their mind and refused to accept the application applied on 12/02/2020. In the hearing, the department opposes the application as they claimed the application applied on 13/02/2020.

(Errors in original)

38    In his amended submissions filed on 24 May 2023, the applicant particularised his draft grounds of appeal into six categories, including:

(1)    A denial of procedural fairness, with respect to not adjourning the hearing due to his mental health issues, not giving time to the applicant to present his arguments, having an "unsafe" hearing, deleting and removing submissions, amended application and affidavits and intentionally lying in the judgment;

(2)    A failure to take into account relevant material, including submissions, amended application, his affidavit, and his "25 grounds of review";

(3)    Taking into account irrelevant information, being his original application, not the amended application;

(4)    Incorrectly interpreting the law with respect to the filing of documents which led to the extension of time;

(5)    Making an unreasonable decision; and

(6)    Political intervention in his case.

39    The applicant seeks the following relief:

1.    An order that the file lodged on 13/02/2020 in the FCC is void

2.    An order that the decisions/orders of the FCC be quashed.

3.    An order that the decision of the tribunal be quashed.

4.    A writ of mandamus directed to the FCC, tribunal, Immigration Assessment Authority or Minister, requiring them to determine the Appellant’s applications, in the future, according to law.

5.    An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision based on discrimination.

6.    An order that asking the department to give me the refund (previous file fee, hearing day fee, and their lawyer fee, and my previous lawyers fees) for FCC and the Tribunal because they made a preconceived judgment.

7.    An order that asking the department to pay me the refund all this court fees including lawyer fees.

8.    An order that asking the department to grant me a bridging visa A immediately.

9.    An order that asking the department to grant me a skill permanent residency because I lost the opportunity to get PR because they banned me from studying and now facing anxiety and depression.

10.    An order that asking the department to compensate me 3 millions Australian dollars for deteriorating my health condition so far and in the future.

11.    An order that asking the department to compensate me AU$200000.00 for the harm, anxiety and depression which I got during these courts cases.

12.    An order that asking the department to compensate me AU$500000.00 for not being able to get professional job in the near future because of anxiety, depression, memory problems/loss, delusion, and lack of self- esteem I have been facing since the beginning of 2020.

13.    An order that asking the department to compensate me AU$500000.00 for treating me not like human beings, losing my dignity in front them, and harassing me.

14.    An order that asking the department to compensate me AU$10000.00 for not being able to work for 10 weeks.

(Errors in original)

40    The applicant set out further relief in his amended submission dated 24 May 2023, including:

53- An order that the decisions of the FCC be quashed.

54- A writ of mandamus directed to the tribunal, the Minister, and the FCC requiring them to determine the applicant’s applications, in the future, according to law.

55- An order that the First Respondent pay the applicant in the sum of ($21,414.00+ this hearing fee) which consist of: ($7,467.00 their last lawyer fees +$1,480.00 last court fees + $7,467.00 the sum of my last lawyer fees, $5,000.00 the sum of my fees (including lawyers), and this hearing fee as well.

56- An order that asking Minister to issue the right visa, which is Bridging Visa A full work and study right, immediately within 24 hours from the hearing. (THIS ORDER IS AN URGENT TO PUT THE FOOD ON THE TABLE AND LIVE UNDER A SHELTER).

57- An order that asking Minister to compensate me by issuing an Australian citizenship and $AU 5,000,000.01 within 21 days from this order, if unless the applicant with them do not reach a different agreement in a week

58-An order to investigation thoroughly about the reasons why this happened to me, and whether whom wanted to harm me intentionally including the possibility of proving malice aforethought by those two criminals, and who are those two criminals?

59- In case the order in P56 has been dismissed, of course with clear explanation in the judgement. Hence, the application will be returned to the FCC for the hearing, it shouldn’t be the Brisbane ones as it is clear what all of them have done to me, so I am seeking to be Sydney, for the interest of justice.

(Bolding in original, errors in original, underlining and crossing-out of words omitted)

41    The applicant’s draft grounds of appeal, affidavits and submissions are lengthy, often irrelevant and difficult to follow. A frequently recurring theme is the re-ventilation of the date of filing the application in the Circuit Court and the resultant difficulties the applicant claims that caused him. Allegations and accusations are incorporated, including scandalous accusations, about the Minister, his delegates and representatives, the Tribunal and the Circuit Court without any evidence to support them. The applicant’s submissions referred to documents not before this Court including the applicant’s application, submissions and affidavits before the primary judge, various emails between himself and the Circuit Court Registry, as well as medical papers.

42    Furthermore, it may be that the draft grounds of appeal raise new grounds of appeal which were not before the primary judge. However, it is impossible to tell as there is no evidence before the Court as to what the applicant claims was before the primary judge. The applicant made no application to argue fresh grounds of appeal and the Minister made no submissions with respect to the grant of such leave. I observe that, in relation to both the material referred to in the applicant’s submissions and his complaints regarding the grounds of appeal he says were not considered, the applicant has had since at least 17 March 2021 to file any affidavit material he considers relevant.

Consideration

43    Draft grounds 1, 2, 9, 11, 32 and 33 appear to relate to an issue the applicant took with the late filing of his application to the Circuit Court. The applicant considered the filing dates significant as filing on 13 February 2020 would mean that the applicant required an extension of time to bring his application in the Circuit Court, and I also infer from the applicant’s submissions, had an impact upon the type of bridging visa to which he was entitled.

44    The applicant takes issue with the primary judge’s granting of the extension of time at [11] of his Honour’s reasons. However, that paragraph must be read in its entirety - it notes that his Honour granted the extension “…without considering any of the other matters ordinarily considered on an application to extend time”. It must also be read in the context of paragraph [10] of the primary judge’s reasons where he acknowledges that the application was lodged on 12 February 2020 and accepted for filing on 13 February 2020 due to a delay in the Registry. On a plain reading of the judgment this discloses no appealable error. The Court has no jurisdiction to consider the extent to which, if any, the applicant claims to have suffered harm with respect to the bridging visa for which he was considered eligible as a result of the date of filing.

45    Draft grounds 3, 10, 14-17 appear to relate to a complaint the applicant has regarding the grant of his visa and the subsequent lack of working rights attached to the visa. As specified above, this complaint is not an error of law and is not relevant to whether the primary judge made a jurisdictional error.

46    Draft grounds 4-6, 13 and 22 appear to relate to an error of law relating to procedural fairness (Procedural Fairness Grounds). The draft grounds provide that the primary judge erred in failing to afford procedural fairness by:

    Ignoring the orders sought, his grounds of appeal and his evidence: draft grounds 4 and 5.

    Rejecting the applicant’s request to adjourn the substantive hearing due to medical reasons: draft ground 6 and 22.

    Failing to find that the Tribunal erred in not reminding the applicant about an interpreter or failing to give enough time for the interpreter: draft ground 13.

47    Draft grounds 7-8, 18-21, and 28-31 appear to argue that the primary judge and Tribunal were biased and that the applicant was subjected to systematic discrimination (Bias Ground). I include the applicant’s particularisation of political intervention under this ground.

48    Draft grounds 12 and 23 argue that the primary judge erred by failing to find that the Tribunal asked itself two wrong questions during the hearing (Wrong Questions Ground). Draft grounds 24-27 appear to be particulars of this ground.

49    The applicant has also submitted that the primary judge made an unreasonable decision by not having regard to his submissions, took into account irrelevant information and failed to take into account relevant information.

50    In considering the merits of the appeal in the context of an application for an extension of time, the Court considers whether the grounds of appeal are “arguable”, and does so by taking an impressionistic examination of the grounds of appeal: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63].

Procedural Fairness Grounds

51    Insofar as the applicant complains that his Honour did not grant him the requested adjournment, that is a matter entirely within the primary judge's discretion. The primary judge was under an obligation to ensure an “effective, orderly and expeditious discharge of the business of the [Circuit Court]”: s 12(1) of the Federal Circuit Court of Australia Act 1999 (Cth). The Minister submitted, and I agree, that the primary judge's decision to refuse an adjournment in circumstances where his Honour found that the appeal lacked merit is not an appealable error: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [20] (McKerracher, Farrell and Banks-Smith JJ).

52    With respect to the applicant's submission regarding not being asked or reminded about an interpreter before the Tribunal, in the form completed by the applicant titled “Response to hearing invitation - MR Division”, the applicant ticked “No” next to the question “Do you or any other person attending the hearing need an interpreter”.

53    The applicant submitted that the primary judgment was “full of lies, contradictories, denials, deceptions, removal of concrete evidence, removal of the grounds of the applicant, removal of orders sought, alter of original context(s), relying on outdated evidence and context not amended ones”. In his affidavit filed on 5 March 2021, the applicant stated that the primary judge accepted his amended application and written submissions, and heard the applicant's oral submissions. This appears to be inconsistent with paragraph [5] of the primary judge’s judgment, where, as acknowledged in the Minister’s written submissions, it states, “Whilst the applicant has filed a further affidavit in support of his application on 9 April, 2020 he has not filed any written submissions.” However, as stated above the applicant provided no evidence, nor submissions, as to the grounds of appeal that he claims his Honour did not consider.

54    In the absence of any evidence as to what it is asserted the primary judge failed to consider and given that, on the evidence before it, the Tribunal made the only decision available to it, there is no merit in these draft grounds.

Bias Grounds

55    First, these draft grounds are wholly unparticularised. As submitted by the Minister, the applicant is required to distinctly and clearly articulate allegations of bias, and must satisfy the Court that the Tribunal or primary judge brought closed minds to the issue raised in the applicant's case: Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [127] (Kirby J), referred to with approval in SZUEP v Minister for Immigration & Border Protection [2017] FCAFC 94; 160 ALD 35 at [11] (Perram, Robertson and Wigney JJ); Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, 551.

56    Secondly, the applicant submitted that the Tribunal and Circuit Court made a preconceived judgment based on systematic discrimination. He submitted that his communications with the Registry and the conduct of the hearings led to that conclusion. The applicant specifically referred to the filing of his Circuit Court documents, the hiding/removing of evidence and that a pre-arranged “criminal” attended his Circuit Court hearing. These are serious claims made unsupported by any evidence.

57    Nothing in the judgment of the primary judge discloses any suggestion of bias or pre-determination. Nor does the judgment show that the primary judge did not bring an impartial mind to the matter. I take the same view with respect to the Tribunal's decision.

58    There is no merit in the Bias Grounds.

Wrong Questions Grounds

59    The applicant submitted that the Tribunal asked itself two wrong questions, namely:

    The Tribunal asked about a “fresh COE while [the applicant's] visa was refused because of financial issues”; and

    The Tribunal asked why the applicant was studying a diploma despite completing a master's degree.

60    With respect to the first question, as noted in the Tribunal's decision at [11] and the primary judge's decision at [16], cl 500.211 of the Regulations required that the applicant be enrolled in a course of study “at the time of the decision”. The applicant was put on notice that the Tribunal would be considering his enrolment by its request for his current COE in its letter dated 27 November 2019.

61    Furthermore, cl 500.212 of the Regulations required that “the applicant intends genuinely to stay in Australia temporarily”. In that context it was entirely within the Tribunal’s purview to query the applicant's proposed course of study.

62    Accordingly, there is also no merit in the Wrong Questions Ground.

Irrelevant Considerations/Relevant Considerations and Unreasonable Decision

63    The applicant submitted that the primary judge took into account an irrelevant consideration in referring to his original application, not the amended application, and that he failed to take into account relevant considerations, being the amended application, his submissions and affidavit. The applicant submitted that, as a result, the decision is unreasonable. For the reasons provided above, I do not consider these draft grounds to be arguable.

64    On the material before the Court it is not apparent that the primary judge failed to take into account relevant considerations. As held in Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; 86 NSWLR 481 at [77], "…a judge’s failure to refer to a particular document containing submissions does not bespeak error or want of procedural fairness particularly where, as here, the judgment shows clearly that all relevant issues were adequately addressed…" The applicant has failed to specify to the Court what the primary judge failed to consider that was relevant to the proceeding.

65    With respect to the submission that the primary judge made an unreasonable decision, this ground has no merit. As accepted by the primary judge at [18], the Tribunal made the only decision available to it in the circumstances, as did the primary judge.

Conclusion

66    The applicant's draft grounds of appeal discloses no merit. Accordingly, the application for an extension of time must be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    15 June 2023