FEDERAL COURT OF AUSTRALIA Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871 Citation: Sivaprakasam v Minister for Immigration and Border Protection [2014] FCA 871 Appeal from: Applications for extension of time and leave to appeal: Sivaprakasam v Minister for Immigration & Anor [2014] FCCA 935 Parties: BINOSH SIVAPRAKASAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 203 of 2014 Judge: BEACH J Date of judgment: 15 August 2014 Catchwords: MIGRATION — applications for extension of time and leave to appeal — refusal of student visa application — interlocutory decisions of the Federal Circuit Court — extension of time granted for one application and denied for another application — leave to appeal refused Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Federal Circuit Court Rules 2001 (Cth) rr 13.03C, 16.05, 16.08 Migration Act 1958 (Cth) ss 353, 360, 363 Cases cited: Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 Allesch v Maunz (2000) 203 CLR 172 Baig v Minister for Immigration and Border Protection [2014] FCA 855 BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 Re CSR Ltd (2010) 183 FCR 358 SZIBD v Minister for Immigration and Citizenship [2008] FCA 429 SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 Wei v Minister for Immigration and Border Protection [2014] FCA 539 Date of hearing: 15 August 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr N Wood Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 203 of 2014 BETWEEN: BINOSH SIVAPRAKASAM Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BEACH J DATE OF ORDER: 15 AUGUST 2014 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant have leave to amend his application filed on 4 April 2014 to seek an extension of time within which to file an application for leave to appeal against the orders and judgment of the Federal Circuit Court of Australia made on 18 March 2014 and to constitute the application as such application for leave to appeal. 2. The application for an extension of time within which to apply for leave to appeal against the orders and judgment of the Federal Circuit Court of Australia made on 30 January 2014 is dismissed. 3. The application for an extension of time within which to apply for leave to appeal against the orders and judgment of the Federal Circuit Court of Australia made on 18 March 2014 is granted. 4. The application for leave to appeal against the orders and judgment of the Federal Circuit Court of Australia made on 18 March 2014 is dismissed. 5. The applicant pay the first respondent's costs of and incidental to all applications. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 203 of 2014 BETWEEN: BINOSH SIVAPRAKASAM Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BEACH J DATE: 15 AUGUST 2014 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application filed by the applicant on 4 April 2014 seeking an extension of time within which to apply for leave to appeal the decision of the Federal Circuit Court of Australia made on 30 January 2014 (the extension of time application). The application is also for leave to appeal the 30 January 2014 decision, assuming an extension of time is granted (the leave to appeal application). The application has now been amended today to also deal with a later decision of the Federal Circuit Court, but I will first consider the 30 January 2014 decision (the 30 January decision). 2 The 30 January decision dismissed the applicant's application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister, to refuse to grant the applicant's application for a Student (Class TU) Subclass 572 Vocational Education and Training Sector visa (Subclass 572 student visa) under the Migration Act 1958 (Cth) (Migration Act). 3 In order to appreciate the context of both the extension of time application and the leave to appeal application, it is necessary to set out some background. Background 4 On 28 February 2011, the applicant made an application for a student (temporary) visa. On 2 March 2011, a case manager acting on behalf of the Minister requested further information and material. On 18 March and 28 March 2011 the applicant submitted some information and material in support of his application. The material related to health cover and some loan and finance information. Also provided was an "affidavit of support" made by the applicant's mother stating that the applicant had been granted admission to a particular course in Australia. In May 2011, further information was sought by a case manager on behalf of the Minister, but much of the information and evidence requested does not seem to have been forthcoming. 5 The applicant sought to satisfy the criteria for a Subclass 572 student visa set out in Sch 2 to the Migration Regulations 1994 (Cth) (the regulations). The criteria for a Subclass 572 student visa included that the applicant had given to the decision-maker a certificate of enrolment relating to the applicant having undertaken a relevant course of study or evidence that the applicant was enrolled in or was the subject of a current offer of enrolment in a course of the required description, the decision-maker being satisfied that the applicant was a genuine applicant for entry and stay as a student because he met certain requirements, including financial capacity, and that the applicant had given to the decision-maker evidence of adequate arrangements for health insurance. 6 On 6 June 2011 a delegate of the Minister refused to grant the applicant a Subclass 572 student visa on the basis that such criteria had not been met. On 29 June 2011 the applicant applied to the Tribunal for a review of that decision. On 29 June 2011 the Tribunal advised the applicant by letter that "If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible". A notice was also provided to the applicant headed "Information about Tribunal Procedures for Review Applicants". The notice consisted of over three pages of single spaced typed details, including a section concerning the provision of further information and evidence to the Tribunal. But apart from the material that had been before the delegate of the Minister, little, if any, further information seems to have been provided by the applicant to the Tribunal in and after this period. On 9 November 2012, a Tribunal officer wrote to the applicant and invited him to appear at a hearing on 11 December 2012, and to provide evidence to meet the above criteria for a Subclass 572 student visa. The 9 November 2012 letter set out considerable detail as to what was required to be provided. The three page letter was accompanied by twelve pages of attachments. 7 On 5 December 2012, the applicant wrote to the Tribunal and requested an adjournment. The letter stated as follows: I ... would like to request The Tribunal for some additional time in order to obtain supporting documents to present my arguments before the Tribunal. I am waiting for some additional documents from my bank manager in India in relation to the financial arrangements I made in accordance with the requirements of Schedule 5A. I am also waiting for some of the evidence of my academic achievements, which I suppose to get in a short period of time. I would be very grateful if The Tribunal could give me at least a three months time for the abovementioned need. Later that day, a Tribunal officer emailed the applicant stating that a Tribunal member had considered his request to adjourn the hearing for three months, but had decided that the hearing would proceed on 11 December 2012. 8 The applicant attended the Tribunal hearing on 11 December 2012. The applicant gave oral evidence to the effect that he was not currently enrolled in a course of study, that he did not have an offer of enrolment in a registered course of study and that he did not have current overseas student health cover. He provided the Tribunal with some documents including a Statement of Attainment concerning a Certificate III cooking course dated 29 October 2010 which had been completed by 28 December 2009 and two confirmation of enrolment documents, one of which was for the said cooking course and another for a diploma course which had an end date of 8 February 2011. The applicant requested additional time to provide further evidence. The Tribunal did not grant the additional time. The Tribunal noted that its letter of 9 November 2012 was clear in stating what evidence the applicant would need to provide, and that the applicant had had sufficient time to provide the evidence. 9 On 11 December 2012, the Tribunal made its determination, finding that there was no evidence before it that the applicant was currently enrolled in, or was at the relevant time the subject of a current offer of enrolment in, any applicable course of study. Accordingly, the Tribunal was not satisfied that the applicant satisfied the requirements of the regulations, or the corresponding criterion for a student visa in other subclasses. It affirmed the decision of the Minister's delegate to refuse to grant a student visa. 10 On 7 January 2013, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision (the application for judicial review). The application for judicial review had a first return date on 6 March 2013 but was later listed for hearing on 14 August 2013. It was subsequently relisted for 30 January 2014. The applicant was given notice of the 30 January 2014 hearing date by a letter sent to him on 2 August 2013. On 30 January 2014 the applicant failed to appear at the hearing. Accordingly, his Honour Judge Riethmuller made the 30 January decision dismissing the application for judicial review under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules). The order of dismissal was entered under r 16.08 of the FCC Rules on the same day. Rule 13.03C of the FCC rules provides: 13.03C Default of appearance of a party (1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do one or more of the following: (a) adjourn the hearing to a specific date or generally; (b) order that there is not to be any hearing, unless: (i) the proceeding is again set down for hearing; or (ii) any other steps that the Court directs are taken; (c) if the absent party is an applicant—dismiss the application; (d) if the absent party is a party who has made an interlocutory application or a cross‑claim—dismiss the interlocutory application or cross‑claim; (e) proceed with the hearing generally or in relation to any claim for relief in the proceeding. (2) If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the Court thinks just. 11 On 14 February 2014, the applicant filed an application in the Federal Circuit Court to set aside the 30 January decision; the material filed by the applicant was variously expressed as to "reopen the dismissed case" or "reopen the file", but the application was appropriately treated as an application under r 16.05 of the FCC Rules. The applicant appeared at the hearing of this interlocutory application on 18 March 2014 before Judge Riethmuller. His Honour dismissed this application (the 18 March decision) in terms "(t)he Application for re-instatement filed on 14 February 2014 be dismissed". 12 The 18 March decision was made under r 16.05(2)(a) of the FCC Rules although the entered order was not expressed in those precise terms; cf his Honour's reasons (at [1]) which described the application before him as "an application to set aside". Rule 16.05 provides: 16.05 Setting aside (1) The Court may vary or set aside its judgment or order before it has been entered. (2) The Court may vary or set aside its judgment or order after it has been entered if: (a) the order is made in the absence of a party; or (b) the order is obtained by fraud; or (c) the order is interlocutory; or (d) the order is an injunction or for the appointment of a receiver; or (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order is made consents. (3) This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order. 13 It is significant to note at this point that the form of the applicant's application at the commencement of the hearing before me today embraced only the extension of time application and the leave to appeal application in relation to the 30 January decision. The application did not relate to the 18 March decision. But during the hearing before me, the applicant was given leave to amend his application to embrace a challenge to the 18 March decision, which I will discuss shortly. 14 The 30 January decision was interlocutory (SZSPR v Minister for Immigration and Border Protection (2013) 139 ALD 109 at [15]; Perera v Minister for Immigration and Border Protection [2013] FCA 1417 (Perera) at [4]; Kaur v Minister for Immigration and Border Protection [2014] FCA 188 at [3]; SZSRM v Minister for Immigration and Border Protection [2014] FCA 221 (SZSRM) at [17]). 15 Accordingly, leave to appeal was required (s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act)). Moreover, an application for leave to appeal should have been filed by 13 February 2014 (r 35.13 of the Federal Court Rules 2011 (Cth)). 16 In the applicant's application filed on 4 April 2014, constituting both the extension of time application and the leave to appeal application (if time was extended) challenging the 30 January decision, the grounds were stated as: I, BINOSH SIVAPRAKASAM, have applied my 572 visa subclass on March 2009 as I was eligible to study in Australia. • I have submitted all documents in time frame of Department of Immigration and citizen ship. • I was paying my serious attention on my work towards to settle in Australia • I have studied my Certificate III in Commercial cookery and Diploma of hospitality Management. • My Aim to become to cook made me to come Australia for my further education. • Exceptional circumstances beyond my control where my parents have failed the keep the money after the documents submitted to department. • Unnecessary burdens and expenses of my family back in India were main barriers for this situation. • Now my parents are wealth enough to support my education in Australia. • I was waiting for decision record of Federal Circuit court 17 A draft notice of appeal was provided with the application. The draft notice of appeal referred only to a challenge to the 30 January decision, and raised two grounds: 1. I am not Happy with the decision made by the Federal Circuit court of Australia 2. I am looking for the justice at Federal court of Australia 18 The applicant also filed an affidavit dated 4 April 2014, which stated: I am Ready show my offer letter, and [illegible], Medical Care. please allow me to appeal. … I am not happy with decision made by Migration review Tribunal (a) As well as DIAC decision I am not happy with decision of Federal Circuit court of Australia I am out of time because I applied for re-open my case which I appeared on 18 March 2014 19 The affidavit provided some reason for the filing of the application for leave to appeal out of time. It would appear that the applicant waited on the outcome of his application to set aside the 30 January decision, which was refused and culminated in the 18 March decision. Apparently, after the 18 March decision was made, the applicant then considered that he should challenge the 30 January decision, which remained in place, rather than at this time challenging the 18 March decision. 20 Otherwise, the application, the affidavit, and the draft notice do not set out any detailed grounds justifying the extension of time or why, if an extension of time was granted, leave to appeal the 30 January decision should be granted. Principles governing extension of time 21 The principles governing applications for extensions of time within which to seek leave to appeal are not in doubt. 22 Consideration needs to be given to the length of the delay, the explanation for the delay, any prejudice to the other parties and the merits of the proposed appeal (Adhikaree v Minister for Immigration and Border Protection [2014] FCA 564 at [5] and Baig v Minister for Immigration and Border Protection [2014] FCA 855 at [4]). 23 The absence of prejudice to the Minister by reason of the applicant's delay is not sufficient to warrant the grant of an extension of time (SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at [67]). 24 Generally, where a proposed appeal has little, if any, prospects of success, an extension of time will be refused, even if the period for the extension is short (Wei v Minister for Immigration and Border Protection [2014] FCA 539 at [22]). Principles governing leave to appeal 25 The factors that guide the exercise of discretion whether to grant leave to appeal have been set out in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and are also not in doubt. First, the Court must consider whether in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its reconsideration. Second, the Court must consider whether substantial injustice would result if leave were to be refused, supposing the decision below to be wrong. If both these limbs are satisfied, then ordinarily leave to appeal will be granted. 26 Expressed slightly differently, leave to appeal will be granted where there is a reasonably arguable case that the primary decision is affected by appealable error and a grant of leave is necessary to remedy a substantial injustice (Re CSR Ltd (2010) 183 FCR 358 at [5]). The applicant bears the onus of persuasion (Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56]). Should an extension of time be granted? 27 In my view, the extension of time application in respect of the 30 January decision should be refused. 28 First, the applicant did not appear at the hearing on 30 January 2014. The Federal Circuit Court was entitled to make the 30 January decision given such non-attendance. If an extension of time were granted there is little, if any, prospects of a grant of leave to appeal. No arguable error has been identified in relation to the 30 January decision. There are no sufficient grounds to warrant its reconsideration. An extension of time would be futile. 29 Second, the applicant has not given any sufficient reason for the delay in filing the application for leave to appeal from the 30 January decision, except to justify it by reference to awaiting the outcome of his application to set aside the 30 January decision which culminated in the 18 March decision. In my view, that is not a sufficient explanation for the delay. But it does further highlight why the leave to appeal application from the 30 January decision has little prospects of success. The proper course to address the 30 January decision was to apply to set it aside, which the applicant did, albeit unsuccessfully (MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 (MZWXC) at [9]; Applicant M85/2004 v Minister for Immigration and Citizenship [2008] FCA 1323 at [24]-[25]; SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [22]-[24] and Singh v Minister for Immigration and Citizenship [2013] FCA 199 at [35]). Even if the 30 January decision had sufficient doubt as to its correctness, no injustice would have been caused in leaving it standing given the available path that the applicant had and indeed exercised to set it aside under r 16.05(2)(a) of the FCC Rules. 30 Further, the Minister points out that there is doubt even as to whether this Court could entertain an appeal from an order dismissing an application for lack of appearance made by the Federal Circuit Court. The Minister has referred to various authorities, including SZIBD v Minister for Immigration and Citizenship [2008] FCA 429 at [2]-[17] and MZWXC at [9], but compare BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 (BZAAG) at [27]-[33]. I have a preference for what was said by Logan J in BZAAG. This Court can formally entertain such an appeal. Section 24(1A) of the Federal Court Act is not to be constrained by the practice and procedure of a different court at a different time (for example, Crotty v Clarke (1896) 22 VLR 594 and Brown v Fraser (1896) 22 VLR 22). There is no reason not the treat the 30 January decision as a "judgment" (s 4 of the Federal Court Act). The constraints on putting "new evidence" forward on any appeal to explain the non-attendance does not go to jurisdiction per se. An appeal can, strictly, be entertained. Its merits and the adducing of "new evidence" is a separate question. 31 Generally, as I say, not only was the appropriate course to apply to the Federal Circuit Court to set aside the 30 January decision, but that is in fact what occurred. Such an application was made and dismissed, culminating in the 18 March decision. The Minister has argued that in such circumstances the applications in respect of the 30 January decision are an abuse of process, but this is to put it too highly. But in circumstances where the applicant had the opportunity to and did apply to set aside the 30 January decision, albeit unsuccessfully, this is a compelling reason to now decline his extension of time application. As I say, even if he had been in time, the leave to appeal application was most likely to have been refused in any event because of the more appropriate way of dealing with the 30 January decision. 32 For all the above reasons, the extension of time application in relation to the 30 January decision is refused. 18 March decision 33 Given that it was important to dispose of all matters, I raised with the applicant this morning the desirability of amending his application to deal with the 18 March decision in two respects: first, by applying for an extension of time within which to seek leave to appeal from that decision; second, if the extension was granted, by applying for leave to appeal the 18 March decision. 34 The applicant availed himself of that opportunity. Accordingly, the necessary leave to amend was granted and his application treated as so amended; appropriate amendments have now been made to his application and draft notice of appeal. The applicant also confirmed that the matters raised in his current application, draft notice and affidavit, which might be described as grounds, also applied to his challenge to the 18 March decision without substantive addition. 35 The 18 March decision is also interlocutory (BZADA v Minister for Immigration and Citizenship [2013] FCA 1062 at [3]; Pannu v Minister for Immigration and Citizenship [2013] FCA 1282 at [1]; Perera at [4]-[6] and SZSRM at [17]). Accordingly, leave to appeal is also required. 36 Further, the applicant requires an extension time within which to file an application for leave to appeal the 18 March decision. If the present application is treated as being amended to embrace the 18 March decision, and as so amended to speak from 4 April 2014, the applicant is three days out of time. The applicant should have filed an application for leave to appeal the 18 March decision by 1 April 2014. 37 But given that the application as amended is now only three days out of time, and given the circumstances under which the applicant has been encouraged to amend his application so that the 18 March decision could be addressed, in these special circumstances I am inclined to grant the extension of time. This is so even though, strictly, there has been no compelling explanation for the delay and there is yet to be considered the merits of his application for leave to appeal the 18 March decision. It is important to get to the heart of the applicant's real complaint. Accordingly, in the exercise of my discretion I will grant the necessary extension of time, but only given the idiosyncratic features of this case. It should also be noted that the Minister, ably represented by Mr Nicholas Wood of counsel, took the appropriate course in the circumstances of not opposing the three days extension. Leave to appeal the 18 March decision 38 In an application to set aside a decision which has dismissed a proceeding for failure to appear, the applicant must usually satisfy two criteria. First, the applicant must provide an adequate explanation for his failure to appear. Second, the applicant must also show that he has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order (Allesch v Maunz (2000) 203 CLR 172 (Allesch) at [48] per Kirby J). Alternatively expressed, if no different result would be reached on a rehearing, then an application to set aside may be refused (Allesch at [28] per Gaudron, McHugh, Gummow and Hayne JJ). 39 First, on 18 March 2014 Judge Riethmuller was not persuaded that the applicant had given an adequate excuse for not appearing at the hearing on 30 January 2014. The applicant provided only limited material to his Honour to explain his failure to appear. The medical evidence exhibited to the applicant's affidavit before his Honour did not indicate that the applicant was unable to appear at the hearing on 30 January 2014. Further, the applicant's assertion at the hearing on 18 March 2014 that he had been "ill with kidney problems" for which he took "medication" was also found by his Honour not to have "demonstrated a good excuse for not attending" (at [8]). 40 As to these factual findings, nothing has been advanced by the applicant pointing to any arguable error sufficient to warrant a grant of leave to appeal. 41 Second, his Honour was not persuaded that the applicant had an arguable case in any event on his application for judicial review. The only potential issue identified in the application for judicial review was whether the Tribunal had committed a jurisdictional error in refusing to grant the adjournment sought by the applicant. The issue was whether the Tribunal's refusal to grant the adjournment fell outside the boundaries of "legal reasonableness". No other ground amounting to jurisdictional error was put to his Honour concerning the failure to grant the adjournment; for the sake of completeness, I do address the issue of procedural fairness later in these reasons given the conceptual overlap between the categories of jurisdictional error said to be constituted by, on the one hand, a decision refusing an adjournment which is said to be legally unreasonable and, on the other hand, such a decision being seen through the related perspective, in terms of its consequence, as being said to deny a fair hearing (Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50 (Singh) at [50]). 42 The standard of legal reasonableness takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general discretionary powers are being exercised (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li)). 43 The standard of legal reasonableness applicable to the exercise of power under s 363(1)(b) of the Migration Act is informed by, inter alia, ss 353 and 360(1). As the plurality judgment in Li indicates, the exercise of power must be "legal and regular, not arbitrary, vague and fanciful" (at [65]). A lack of legal reasonableness may be concluded from an exercise of power "which lacks an evident and intelligible justification" (at [76]). It may also be concluded from "an obviously disproportionate" response or exercise of power in the particular circumstances (at [74]). Relatedly, French CJ stated that it may also be concluded from "a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut… it exceeds what, on any view, is necessary for the purpose it serves" (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an "evident and intelligible justification" or "an obviously disproportionate" exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness. 44 How is legal unreasonableness to be assessed in the present case? 45 This Court in Singh has emphasised two points. First, it is not appropriate merely to take the facts in Li and address factual similarities or differences (at [41]-[42] per Allsop CJ, Robertson and Mortimer JJ). Li is not some factual checklist against which other factual scenarios are merely to be either analogised or distinguished. In each context in which it is to be assessed, "legal unreasonableness is invariably fact dependent" (Singh at [42] and [48]). Whether a particular exercise of power descends into legal unreasonableness requires "careful evaluation" of the evidence in the particular application for judicial review (at [42]). Second, if the Tribunal has given reasons for the relevant exercise of power under challenge, then it is in those reasons "to which a supervising court should look in order to understand why the power was exercised as it was" (at [47]). The "intelligible justification" must be found within the reasons explicitly or implicitly. But such a constraint against looking at exogenous justifications may not apply when considering the related ground of whether there has been a lack of procedural fairness or a fair hearing flowing from a refusal of an adjournment (at [51]). 46 After evaluation of his Honour's reasons given for the 18 March decision, I do not discern any arguable error in his Honour's approach to assessing this asserted jurisdictional error of the Tribunal sufficient to warrant a grant of leave to appeal. 47 In the present case, there is some indication in the Tribunal's reasons for refusing to grant the adjournment. Accordingly, that is the appropriate point for obtaining an understanding as to why the power was exercised to refuse the adjournment. It is the appropriate place from which to determine whether there was an "intelligible justification". 48 As the primary judge rightly accepted, in the present case, there was no good reason to suspect that if an adjournment had been granted the relevant criteria for the Subclass 572 student visa would have been met. Second, the adjournment request contained only the general and vague assertion that the applicant was waiting for unspecified documents. The applicant gave little, if any, indication of what those documents were, what steps he had taken to obtain them, and like matters. Third, the applicant did not request an adjournment until six days before the scheduled hearing. Fourth, the period for which an adjournment was sought, being "at least three months", was lengthy and apparently arbitrary, rather than defined by reference to a specific future event. 49 Finally, as the Minister points out, and in terms of the nature of the exercise before the primary judge, applying 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 [66]). 50 In my view, no arguable error has been identified in how the primary judge addressed this issue, sufficient to warrant the grant of leave to appeal. 51 Further, there is no other arguable error which might have risen to the level of a jurisdictional error in terms of any lack of procedural fairness or a fair hearing in the Tribunal's failure to grant the adjournment. First, the applicant was informed on 29 June 2011 and 9 November 2012 of the need to provide supporting material. Second, although the applicant in part sought an adjournment to put forward financial material which he now says he was not given sufficient time to obtain, the Tribunal dealt with the matter on the basis of the lack of enrolment evidence in relation to an appropriate course of study (see [22] of the Tribunal's reasons). In other words, the deficiency concerning the financial material and the adjournment sought by the applicant to obtain it did not address, and would not have addressed, the enrolment question; indeed, for completeness only, that deficiency concerning a lack of enrolment (or application to enrol) evidence was still extant at the time of the 18 March decision (see his Honour's reasons at [5]) and it seems even now. On the face of the Tribunal's reasons at [20], taken within the factual matrix set out at [6]-[9] above, I cannot detect any arguable lack of procedural fairness or a fair hearing. 52 Leave to appeal the 18 March decision will be refused. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach . Associate: Dated: 25 August 2014