Abdelfattah v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 716
Federal Circuit and Family Court of Australia
(DIVISION 2)
Abdelfattah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 716
File number(s): MLG 2825 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 31 August 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – citizen of Egypt - Partner (Residence) (Class BS) visa – where applicant did not hold a Partner (Temporary) Class UK Subclass 820 visa – whether bias – whether denial of procedural fairness – whether jurisdictional error Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) Pt 5 Div 5, ss 338, 360, 474, 476
Cases cited: AFP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCCA 1322
Basra v Minister for Immigration and Border Protection [2017] FCCA 1302
Basra v Minister for Immigration and Border Protection [2018] FCA 422; (2018) 74 AAR 417
Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Manga v Minister for Immigration and Another [2017] FCCA 1302; (2017) 320 FLR 99
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 26 July 2022 Place: Perth Applicant: In person via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Mr C McDermott via CISCO Webex Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
MLG 2825 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHAB HASSAN MOHAMED ANWAR HASSAN ABDELFATTAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
31 August 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 21 December 2017 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
Before the Court is an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) filed on 21 December 2017 by the applicant, Mr Ehab Hassan Mohamed Anwar Hassan Abdelfattah (“Mr Abdelfattah”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 1 December 2017 to affirm a decision of a Delegate (“Delegate” and “Delegate’s Decision” respectively) of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant Mr Abdelfattah a Partner (Residence) (Class BS) visa (“Partner Visa”). The Tribunal Decision appears in the Court Book (“CB”) at CB 225-231.
Background Prior to the Tribunal Decision
The following is the background prior to the Tribunal Decision:
(a)Mr Abdelfattah is an Egyptian citizen born in 1980: CB 10 and 21;
(b)Mr Abdelfattah arrived in Australia on 14 June 2007 as the holder of a student visa: CB 20;
(c)on 1 December 2009 Mr Abdelfattah met the Sponsor, who would become his wife (“Sponsor”): CB 10-11;
(d)Mr Abdelfattah and the Sponsor committed to a partnership on 10 January 2010 and were married on 24 May 2010: CB 10-11 and 59;
(e)on 20 July 2010 Mr Abdelfattah completed a single application for two partner visas: a Partner (Temporary) (Class UK Subclass 820 (“Temporary Partner Visa”) and Partner (Residence) (Class BS Subclass 801) (“Permanent Partner Visa”) with accompanying relevant material regarding his relationship with the Sponsor and his identity: CB 19-42 and 54-76, which was lodged in conjunction with the accompanying sponsorship application form by the Sponsor: CB 10-18;
(f)on 22 January 2013 the Minister’s Department wrote to Mr Abdelfattah requiring him to provide outstanding documents (“Requested Documents”): CB 77-82;
(g)on 23 February 2013 Mr Abdelfattah’s then migration agent wrote to the Department to advise that Mr Abdelfattah was trying to collate the Requested Documents: CB 85;
(h)on 28 February 2013 the Department received from Mr Abdelfattah some of the Requested Documents: CB 86-103;
(i)on 13 March 2013 a delegate of the Minister decided to refuse the Partner Visa application (“2013 Delegate’s Decision”): CB 109-111;
(j)on 5 April 2013 Mr Abdelfattah applied to the Tribunal for review of the Delegate’s Decision: CB 112-122. The Tribunal review application form was completed by Mr Abdelfattah’s migration agent but the details of the person seeking the Tribunal review were those of the Sponsor, and not Mr Abdelfattah who was the Partner Visa applicant;
(k)on 22 April 2013 the Tribunal wrote to the Sponsor noting that the Sponsor was not the person entitled to review and that Mr Abdelfattah was the person who was entitled to apply to the Tribunal in relation to the Partner Visa refusal: CB 128-129;
(l)the Sponsor appointed a migration agent, who wrote to the Tribunal on 14 May 2013 that the “jurisdiction point is conceded”: CB 130-132;
(m)on 4 June 2013 the Tribunal wrote to the Sponsor’s migration agent, appending a decision by the Tribunal that the Tribunal did not have jurisdiction in the matter: CB 133-136;
(n)on 25 May 2017 a newly appointed migration agent for Mr Abdelfattah wrote to the Department to confirm that “the file is now being reviewed by your department after it was found that the department has made an error in notifying our client of a decision” and appended information regarding Mr Abdelfattah’s immigration status in Australia: CB 137-144;
(o)on 26 May 2017 the Department issued the Delegate’s Decision, advising that “The Department has identified an error in the decision to refuse to grant you a Partner (Residence) (Class BS) Subclass 801 (Partner) visa made on 13 March 2013. Therefore, a new decision has been made on your Partner (Residence) (Class BS) Subclass 801 visa … ”. The Delegate’s Decision was to refuse Mr Abdelfattah’s Partner Visa application: CB 145-165;
(p)on 2 June 2017 Mr Abdelfattah applied to the Tribunal for review of the Delegate’s Decision: CB 166-167;
(q)on 13 October 2017 the Tribunal invited Mr Abdelfattah to attend a Tribunal hearing on 30 October 2017 (“Tribunal Hearing”): CB 179-182;
(r)on 18 October 2017 in correspondence to the Tribunal Mr Abdelfattah’s representative indicated that the Sponsor and Mr Abdelfattah had separated: CB 187;
(s)on 25 October 2017 Mr Abdelfattah’s representative twice requested a postponement of the Tribunal Hearing: CB 192 and 197. The Tribunal refused this request for postponement: CB 193-196, 198-201;
(t)on 30 October 2017 Mr Abdelfattah attended the Tribunal Hearing with the assistance of an Arabic interpreter and his representative. The Tribunal Hearing went for around 45 minutes: CB 202-204;
(u)on 2 November 2017 the Tribunal wrote to Mr Abdelfattah’s representative inviting Mr Abdelfattah to comment (“Invitation to Comment”) on particulars of information, namely that Mr Abdelfattah did not hold, and had never held, a Temporary Partner Visa and that this information was relevant to the review because it suggested that Mr Abdelfattah did not hold a Temporary Partner Visa and therefore did not meet a primary criterion for the grant of the Partner (Residence) (Class BS) visa: CB 206-208;
(v)on 7 November 2017 Mr Abdelfattah’s representative wrote to the Tribunal seeking clarification (“Clarification Request”) as to the basis for the Department’s determination that there was an error in its notification of the Partner Visa refusal, and asked why the Department had found an error in notification of the Permanent Partner Visa decision and not the Temporary Partner Visa decision even though both decisions were made under a combined refusal: CB 209;
(w)on 17 November 2017 the Tribunal wrote to Mr Abdelfattah’s representative regarding “outstanding matters” (“Outstanding Matters Letter”). The Tribunal also addressed the Clarification Request: CB 211-215;
(x)on 20 November 2017 Mr Abdelfattah’s representative wrote to the Tribunal requesting it reserve its decision until judgment was delivered by the Federal Court in an appeal from Basra v Minister for Immigration and Border Protection [2017] FCCA 1302 (“Basra Request” and “Basra” respectively): CB 216; and
(y)on 1 December 2017 the Tribunal Decision was delivered affirming the Delegate’s Decision: CB 225-231.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)set out and summarised:
(i)the facts of the Partner Visa application and the relevant background to the Tribunal Decision: CB 226 at [1]-[8]
(ii)the postponement requests made by Mr Abdelfattah’s representative: CB 226-228 at [9]-[20];
(iii)the Invitation to Comment and Mr Abdelfattah’s response: CB 228-229 at [25]-[33];
(iv)the Outstanding Matters Letter: CB 229-230 at [34]-[41];
(v)the Basra Request: CB 230 at [42]; and
(vi)its decision as to the process to be followed: CB 230 at [43]-[45];
(b)considered the claims and evidence before it: CB 231 at [46]-[51], noting that it relied on Mr Abdelfattah’s movement records to conclude that he did not hold, and had never held, a Temporary Partner Visa, and he was therefore ineligible for the grant of a Permanent Partner Visa: CB 231 at [47]-[49];
(c)addressed the request for referral for Ministerial intervention made at the Tribunal Hearing: CB 231 at [52]-[56]; and
(d)affirmed the Delegate’s Decision: CB 231 at [57].
Basra Appeal
On 29 March 2018 the Federal Court delivered judgment in Basra v Minister for Immigration and Border Protection [2018] FCA 422; (2018) 74 AAR 417 (“Basra Appeal”) dismissing the appeal against Basra.
Judicial Review Application
Delays in hearing in Melbourne Registry
The Judicial Review Application was filed in the Melbourne Registry of the Court (then the Federal Circuit Court) on 21 December 2017. Due to the well-known and acknowledged delays in the hearing of migration judicial review proceedings: see AFP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren, this matter was transferred to the Perth Registry of the Court in September 2021.
Material jurisdictional error required
If the Tribunal Decision is affected by jurisdictional error, it may be set aside by this Court upon judicial review: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Abdelfattah to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
Grounds
The Judicial Review Application contains two grounds of review which are set out below at [9] and [10] below, and which allege jurisdictional error on the bases of bias and a denial of procedural fairness respectively.
Grounds
Ground 1 of the Judicial Review Application is as follows:
1.The Tribunal erred in that there was a reasonable apprehension of bias, insofar as the following particulars demonstrate that a fair-minded observer might, or would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
Particulars
(a)The Tribunal was advised by the applicant and his representative about a current appeal in the Federal Court directly relevant to the particular criteria under review and was requested to postpone its decision until a decision about the relevant case was made in the Federal court.
(b)The Tribunal proceeded to make its decision without first notifying the applicant that it intended to make a decision based on the material before it.
(c)The Tribunal indicated or hinted to the applicant towards the end of the hearing that it doesn't see the benefit of seeking further time to respond.
Ground 2 of the Judicial Review Application is as follows:
2. The Tribunal denied the applicant procedural fairness.
Particulars
(d)The Tribunal unreasonably denied the applicant two (2) requests for a postponement of the hearing.
(e)The Tribunal proceeded to make its decision without first notifying the applicant that it intended to make a decision based on the material before it.
The Tribunal indicated or hinted to the applicant towards the end of the hearing that it doesn’t see the benefit of seeking further time to respond.
Court’s Orders
Orders were made by the Court on 6 December 2021 permitting Mr Abdelfattah to file and serve an amended Judicial Review Application, affidavit and an outline of written submissions. Mr Abdelfattah did not do so.
At hearing
At hearing the Court, having endeavoured to explain the nature of jurisdictional error to Mr Abdelfattah, gave Mr Abdelfattah the opportunity to make oral submissions. Mr Abdelfattah’s submissions at hearing simply did not address the particulars of either ground of the Judicial Review Application. The Court is therefore left to deal with the particulars as they stand.
Ground 1 – consideration
Mr Abdelfattah must identify a factor or factors which might have led the Tribunal to decide the review application otherwise than by independently and impartially evaluating the merits, and articulate how it is that the Tribunal Decision did not make an independent and impartial evaluation of the merits of the review application: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 (“CNY17”) at [17] and [21] per Kiefel CJ and Gageler J and [57] per Nettle and Gordon JJ. This Court cannot reach a conclusion that there is an apprehension of bias through the construct of the hypothetical, fair minded lay observer “lightly”: CNY17 at [56] per Nettle and Gordon JJ. The allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALRJ 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”) at [22] per Flick J. In SZRUI it was observed that:
(a)issues of a reasonable apprehension of bias are ordinarily determined objectively: at [73] per Robertson J;
(b)an allegation of reasonable apprehension of bias may be based on the decision-maker’s pre-judgment or predetermination as to the fate of the application. In such cases more must be shown than mere predisposition to a particular view. It is necessary to show the decision-maker’s mind was not open to persuasion: at [29] per Flick J; and
(c)an allegation of reasonable apprehension of bias on the part of the decision-maker may be based on the decision-maker’s exchanges with a party or use of terminology during a hearing: at [31]-[32] per Flick J and [91], [96] and [100] per Robertson J.
Mr Abdelfattah asserts that an apprehension of bias arises because he put to the Tribunal the Basra Request about an extant appeal which might, when ultimately determined by the Federal Court, support his review application (if the appeal against Basra was successful), and because the Tribunal declined to postpone its decision and did not inform him that it would not postpone its decision.
In considering this matter the hypothetical fair-minded lay observer properly informed of the facts would be entitled to observe that:
(a)the Tribunal would have regard to the law as it relevantly applied at the time it was considering the Tribunal Decision, that is, to the law as set out in Basra, and a further judgment of the Federal Circuit Court in Manga v Minister for Immigration and Another [2017] FCCA 1302; (2017) 320 FLR 99 (“Manga”);
(b)the law as it stood confirmed the Tribunal’s own preliminary view of Mr Abdelfattah’s ineligibility for the grant of the Permanent Partner Visa;
(c)no timeframe was given by Mr Abdelfattah’s representative as to when the extant appeal might likely be determined, noting that it had only recently been the subject of a hearing before the Federal Court;
(d)other than the assertion of it being “directly relevant to [the] client’s case”, no additional submissions about potential similarities or differences were relevantly made by Mr Abdelfattah’s representative;
(e)the Tribunal’s statutory objectives as set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) require that the Tribunal in carrying out its functions must pursue the objective of providing a mechanism of review that is “fair, just, economical, informal and quick”;
(f)the outcome of the appeal against Basra was not certain, and an appeal might not be successful; and
(g)there was a self-evident possibility that the Tribunal might not postpone its decision and might not inform Mr Abdelfattah of that prior to doing so, because there was no legal impediment or restriction in it doing so.
As to the assertion about what the Tribunal purported to “indicate” or “hint” at the end of the Tribunal Hearing there is, in the absence of transcript or audio of the Tribunal Hearing, no evidence of the alleged conduct of the Tribunal. It was for Mr Abdelfattah who made the allegation to put proof of it before the Court, which he has not done, and therefore the best evidence of what occurred at the Tribunal Hearing is the Tribunal Decision: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [24] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration and Border Protection (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev. The Tribunal Decision does not assist Mr Abdelfattah to establish this assertion. The hypothetical fair minded lay observer would, in any event, give little credit to this assertion, given:
(a)that Mr Abdelfattah’s representative’s preference was not for a further hearing, but for the setting of a date for the filing of further submissions: CB 228 at [22]-[23]; and
(b)both Basra and Manga were conceded by Mr Abdelfattah’s representative to be “not favourable” to Mr Abdelfattah’s case: CB 216.
Even if the Tribunal had “indicated” or “hinted” to Mr Abdelfattah at that time that there might not be utility in a further hearing that may very well be because, at that time, there was no utility in a further hearing having regard to the material before the Tribunal (including the judgments in Basra and Manga referred to by Mr Abdelfattah’s representative before the Tribunal) and the dispositive issue on the review: namely, that Mr Abdellfattah did not hold, and had never held, a Temporary Partner Visa. Any indication or hint to that effect does not establish any relevant apprehension of bias on the part of the Tribunal.
In the foregoing circumstances there is no possibility that the hypothetical, fair minded lay observer would consider that the Tribunal Decision was affected by a lack of independence and impartiality, and there is no, or no sufficient, evidence to sustain a finding that the Tribunal acted with pre-determination or was not open to persuasion on this issue. It follows from the foregoing that the allegation of bias is not established on the material before this Court, and that ground 1 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2 - consideration
The Tribunal was obliged to provide procedural fairness in accordance with Pt 5, Div 5 of the Migration Act.
On the material before the Court the Tribunal:
(a)invited Mr Abdellfattah to the Tribunal Hearing which he attended with his representative (a lawyer and a migration agent);
(b)put adverse information to Mr Abdelfattah;
(c)indicated what the dispositive issue was for the purposes of the review, which, in any event, was the same dispositive issue dealt with in the Delegate’s Decision; and
(d)provided a meaningful opportunity to be heard (both as to a hearing under s 360(1) of the Migration Act, and by Mr Abdelfattah putting forward all relevant materials to make out his case).
In the above circumstances it cannot be said that procedural fairness as required by Pt 5, Div 5 of the Migration Act was not afforded to Mr Abdelfattah.
If Mr Abdelfattah was actually seeking to invoke the principles of legal unreasonableness, as opposed to procedural fairness, in relation to the Tribunal not granting him the adjournments earlier sought or not postponing the Tribunal Decision until the appeal against Basra was determined, the principles of legal unreasonableness are set out in Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [21] to [26] per Middleton, Bromberg and Kerr JJ, and in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J wherein it was said that:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Having regard to those principles no legal unreasonableness arises because:
(a)as to the earlier adjournments, it was open to the Tribunal to proceed as it did, including by providing Mr Abdelfattah with an opportunity to submit further materials after the Tribunal Hearing;
(b)the matter was not a complex one and the Tribunal identified a single dispositive issue as to whether Mr Abdelfattah was the holder of a Temporary Partner Visa, the answer to which was either “yes” or “no”;
(c)Mr Abdelfattah’s representative did not continue to press for an adjournment or postponement of the making of the Tribunal Decision at the Tribunal Hearing on 30 October 2017, and no further hearing was sought to address the issues identified by Mr Abdelfattah in the earlier adjournment or postponement requests; and
(d)as to the refusal to postpone the Tribunal Decision on the basis of the appeal against Basra, and the failure of the Tribunal to give notice of its intention not to do so before making the Tribunal Decision, the Court reiterates what it has said at [15] above.
A conclusion of legal unreasonableness cannot, in context, be drawn by the Court on the material before it.
Whether as to a denial of procedural fairness or legal unreasonableness ground 2 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Materiality
In the alternative to both grounds 1 and 2, the Minister submitted that no jurisdictional error arises because Mr Abdelfattah cannot establish the requisite “materiality” threshold – that is, the Tribunal Decision would have been no different had the alleged errors not occurred: MZAPC at [2], [32]-[40] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In relation to the Minister’s materiality submission the Court makes the following observations:
(a)as was confirmed in Basra Appeal at [36]-[42] per Moshinsky J, despite there being a single application process for the Temporary Partner Visa and the Permanent Partner Visa decision, the refusal of each constitutes separate decisions, not one decision;
(b)the 2013 Delegate’s Decision was reviewable by the then Migration Review Tribunal under s 338(2) of the Migration Act, but it was never the subject of a valid merits review application to the then Migration Review Tribunal. The Tribunal was therefore without jurisdiction to review the 2013 Delegate’s Decision as part of its consideration of the review application: Basra Appeal at [41] per Moshinsky J. It was required to assume the validity of the 2013 Delegate’s Decision. More importantly, this Court is without jurisdiction to judicially review the 2013 Delegate’s Decision: Migration Act, s 476(2)(a) (read with the definition of a “primary decision” in s 476(4)(a) of the Migration Act).; and
(c)on the materials before this Court, it may be readily inferred that at the time of the Tribunal Decision, Mr Abdelfattah did not hold a Temporary Partner Visa. As this was an essential criterion for the grant of a Permanent Partner Visa, it simply cannot be material to the Tribunal review application if the Tribunal erred as is alleged, because no different result could possibly have arisen.
It follows from the foregoing that the errors alleged in grounds 1 and 2 are not material to the outcome of the Tribunal Decision and are therefore not jurisdictional errors in any event.
Jurisdictional error otherwise
Because Mr Abdelfattah was self-represented, the Court is cognisant that it should remain independently alert to the possibility of a jurisdictional error otherwise existing in the Tribunal Decision: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev. In this regard, it suffices to observe that on its review of the materials before it the Court has concluded that there is no possible jurisdictional error otherwise arising out of the Tribunal Decision beyond the possible jurisdictional errors alleged in the Judicial Review Application.
Conclusion and Orders
The Court has concluded that grounds 1 and 2 of the Judicial Review Application do not establish jurisdictional error in the Tribunal Decision, and that the Tribunal Decision is otherwise unaffected by jurisdictional error. It follows that there will be an order dismissing the Judicial Review Application. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the Parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 August 2022
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