Federal Court of Australia

Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 261

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal is dismissed.

2.    The applicant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant seeks an extension of time and leave to appeal from the orders and judgment of the primary judge of the Federal Circuit Court of Australia made on 5 May 2021: Kanyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 931. The applicant had sought judicial review of a decision of the second respondent (the Tribunal) dated 25 July 2019. The Tribunal affirmed a decision made by a delegate of the first respondent dated 22 September 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa (Student visa). The primary judge dismissed that application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the Rules). As dismissal under that rule is interlocutory in nature, per r 44.12(2) of the Rules, the applicant requires leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth); Bishnoi v Minister for Immigration and Border Protection [2018] FCA 445 at [16]. The application in this court was filed two days outside the prescribed period to lodge an appeal, requiring an extension of time.

2    In summary, on 6 October 2017, the applicant applied to the Tribunal for a review of the delegate’s decision, having appointed a registered migration agent as their representative, and provided a copy of the delegate’s decision.

3    On 5 April 2019, the applicant was invited pursuant to s 359(2) of Migration Act 1958 (Cth) (the Act) to provide information in writing about the course of study he was intending to undertake. He was asked to complete a Request for Student Visa Information form. He was notified that it was a requirement for the grant of the Student Visa that he be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student. Further, he was notified that if he failed to respond by the specified date and no extension of time was granted, he may lose any entitlement he may otherwise have had to attend a hearing. In which case the Tribunal may proceed to decide the review. Ultimately, on 7 May 2019, the applicant provided a completed form, where in response to the question “[d]oes the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” the applicant answered “No”. Under that answer the form stated that “[n]ot being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review”. In that form, the applicant also consented to the Tribunal deciding the review without a hearing. That is, in response to the question “[d]o you and any other applicants consent to the Tribunal deciding the review without a hearing?”, the applicant responded “Yes, I/we consent to the Tribunal deciding the review without a hearing”. As noted by the primary judge at [21], the passage on the form immediately below the abovementioned question stated:

Note: If you consent to us deciding your review without a hearing:

•    You will not be invited to appear at a hearing to give evidence and present arguments relating to the issues in your case. Our decision will be made based on the information and evidence before us, and we may consider criteria or issues that were not previously considered by the primary decision maker.

•    We may either affirm or set aside the decision under review. Please see our Information about Decisions fact sheet for more information about different types of decisions and what happens once our decision has been made.

•    You should provide us with all the information you would like us to consider in your case. A decision will not be made until after the period for responding. (emphasis in original)

4    On 25 July 2019, the Tribunal affirmed the delegate’s decision on the basis that the applicant was not enrolled in a registered course of study as required by cl 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).

5    The review before the primary judge was based on the fact the applicant had not been invited to attend a hearing before the Tribunal. The primary judge dismissed that application for the following reasons. First, the Tribunal was not required to invite the applicant to attend a hearing in circumstances where the applicant consented to the Tribunal deciding the application without a hearing. Second, the Tribunal’s obligations under s 359A(1) of the Act were not enlivened by the information provided by the applicant in response to the s 359(2) invitation to provide information. Third, the applicant was on notice of the dispositive issue on review as the Tribunal requested evidence of his enrolment.

6    The power to extend time in which to appeal is unfettered. Nonetheless, the authorities identify several matters which may bear upon the exercise of that discretion including: (1) the length of the extension sought; (2) the explanation for the delay; (3) the prejudice to the applicant if the extension of time is refused; (4) any relevant prejudice to a respondent if the extension of time is granted; (5) the conduct of the parties in the litigation; (6) the merits of the substantial application; and, (7) the interests of justice more generally: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349; Fualau v Minister for Home Affairs [2020] FCAFC 11 at [6].

7    The discretion to grant leave to appeal is also an unfettered one, but is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and, (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2015) 242 FCR 585 at [44]; Samsung Electronics Co. Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30].

8    The applicant does not direct any written submissions to the questions of an extension of time or leave to appeal. The appeal notice is written by the applicant himself. The applicant is now represented in this application by the legal practitioner who appeared for him before the primary judge. The written submissions are confined to the issues raised before the primary judge (although the notice of appeal is much more broad ranging). I also note the submissions proceed on a basis which was not in evidence before the primary judge, namely as to the state of mind of the applicant. In that context, the applicant’s submissions also do not address the plain terms of the Request for Student Visa Information form.

9    I approach this matter on the basis that the written submissions involve the issues advanced on the requirement for leave to appeal. This was confirmed at the hearing when the applicant identified three topics on which he submitted the primary judge erred: (1) the entitlement to an oral hearing; (2) absence of informed consent; and (3) notice of the dispositive issue.

10    The basis of the applicant’s submissions before the primary judge and this Court is that the Tribunal was required to: invite the applicant to comment on the information he provided in his s 359(2) response that he was not enrolled in a registered course of study; and, invite the applicant to a hearing, despite having consented to the Tribunal making a decision without doing so. This is in the context where, as the primary judge observed at [23], there was nothing in the materials or evidence before the Court to suggest that the applicant’s consent was not effective. He had declared the information in the form was correct and there was nothing before the Court to suggest he wanted to attend a hearing. That conclusion is not challenged.

11    The respondent accepts that the delay is short, and that they are not prejudiced by it. However, they submitted that there is no merit in the grounds of appeal, and as such, the extension and leave to appeal ought to be refused.

12    Whether viewed through the prism of the extension of time application or the requirement for leave to appeal, merit is a consideration. Granting an extension or leave in circumstances where there is little or no prospects of success is not in the interests of justice.

13    The evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and to inquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]-[63] and MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] and [38].

14    I now turn to consider whether the decision of the primary judge is attended to by sufficient doubt to warrant it being reconsidered, in the manner described above.

15    As the primary judge observed at [20], the Tribunal’s Request for Student Visa Information form requested the applicant provide evidence of his enrolment in a registered course and stated that

not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker.

16    The primary judge concluded at [22] that the applicant was on notice from at least the date of the invitation and provision of the form that satisfaction of cl 500.211 was an issue on the review. He concluded that, as such, the applicant was not entitled to assume that only the issues the delegate considered dispositive were also the issues arising in relation to the decision under review.

17    A recitation of the relevant aspects of the Request for Student Visa Information form above makes clear the consequences of consenting to the matter being determined without a hearing.

18    In that light, the primary judge determined that it was open for the Tribunal to conclude that the applicant had consented to it deciding his application without a hearing. The Tribunal was therefore entitled to proceed to determine the matter on the materials before it: s 360(2)(b) of the Act. Accordingly, the applicant was not entitled to appear before the Tribunal: s 360(3) (and see s 363A). Although the applicant repeatedly submitted that on answering the form pursuant to s 359, he was automatically entitled to a hearing, he did not identify the basis for that entitlement. The entitlement of being invited to appear at a hearing is in s 360(1), which provides that the Tribunal must invite the applicant to appear. This is a right that operates as part of pt 5 div 5 of the Act (which sets out the conduct of the Tribunal in conducting a review) and is not enlivened by the completion of the form under s 359. However, the obligation on the Tribunal to invite the applicant to a hearing under s 360(1) does not apply if the applicant consents to the Tribunal deciding the review without the applicant appearing before it: s 360(2)(b). The applicant’s submission does not identify any reasonably arguable error in the reasoning of the primary judge in dismissing his application.

19    In any event, the Tribunal, having found that the applicant did not satisfy clause 500.211 of the Regulations (that is, the applicant was not enrolled in a registered course of study), the Tribunal was under no obligation to consider the other criteria for the grant of the Student Visa in the context of its review: Kwarta v Minister for Home Affairs [2019] FCA 1308 at [20]. The Tribunal was conducting a review de novo: BOD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1476 at [11].

Conclusion

20    I accept there is no prejudice to the respondent in granting the extension of time. However, in the circumstances of this case, the applicant has not established that the decision of the primary judge is attended by sufficient doubt to warrant a grant of leave to appeal to have it reconsidered. Having evaluated the grounds of appeal there is little prospects of success.

21    Accordingly, the application for an extension of time and leave to appeal from the primary judgment is dismissed with costs.

Dated:    27 March 2025