Amaechi v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 989
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Amaechi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 989
File number: MLG 450 of 2019 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 2 November 2023 Catchwords: MIGRATION– review of Administrative Appeals Tribunal decision to not grant a student visa – refusal by Administrative Appeals Tribunal to grant an adjournment finding that applicant did not meet financial capacity requirements – whether Tribunal provided ample time and opportunity to provide evidence of financial capacity – procedural fairness – applicant on notice of dispositive issue – no jurisdictional error – application dismissed – costs ordered Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) ss 357A 357, 360 and 363
Migration Regulations 1994 (Cth) cl 500.214
Cases cited: Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submissions: 18 October 2023 Date of hearing: 18 October 2023 Place: Melbourne Solicitor for the Applicant: PLS Lawyers Solicitor for the First Respondent: Clatyon Utz The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 450 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARIA EGOYIBO AMAECHI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed 20 February 2019 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 20 February 2019 (Application), the Applicant seeks judicial review of the decision of Administrative Appeals Tribunal (Tribunal) dated 24 January 2019 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Student (Temporary) (class TU) Student (subclass 500) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that she met the financial requirements for the Visa pursuant to cl 500.214 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
The hearing of the Application took place at the Melbourne Registry of the Court on 18 October 2023 (Hearing). Both the Applicant and the Minister were represented by solicitors. At the conclusion of the Hearing judgment was reserved.[1] These are the Reasons for Judgment in relation to the Hearing.
[1] Orders made by Judge C. E. Kirton KC on 18 October 2023, Order 2.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal committed jurisdictional error by declining the Applicant’s request, during the Tribunal’s hearing on 24 January 2019 (Tribunal Hearing), to adjourn the Tribunal Hearing, to enable the Applicant to produce further evidence in relation to her capacity to satisfy the financial requirements for the Visa pursuant to cl 500.214 of Schedule 2 of the Regulations (cl 500.214).
SYNPOSIS
I have determined that:
(a)There is no jurisdictional error in the Tribunal’s decision not to adjourn the Tribunal Hearing; and
(b)The Applicant should pay the Minister’s costs of the Application fixed in the sum of $7,467.
BACKGROUND
The Court has before it a Court Book with 155 pages filed by the Minister on 13 May 2021 (Court Book). The Court has reviewed the Court Book in detail. The Outline of the Minister’s Submissions, filed 11 October 2023 (Minister’s Submissions) accurately summarise the background to this matter at [3] to [9]. The Court adopts those submissions with amendments as follows.
The Applicant is a citizen of Nigeria.
The Applicant arrived in Australia on 28 March 2014 as a holder of a student visa. In 2016 the Applicant was granted a further student visa. The Applicant is currently working as a registered nurse.[2]
[2] Transcript P5:L36-37.
On 13 July 2017 the Applicant applied for the Visa (Visa Application).[3] The Visa Application included the Applicant’s: previous study results; evidence of studies; and a confirmation of enrolment in a course of study in Australia (CoE). The Visa Application confirmed that the Applicant had previously studied in Australia and held a subclass 572 Student Visa.[4]
[3] Court Book (CB) 1-18.
[4] CB 10, 12.
On 8 August 2017 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).[5] The Delegate was not satisfied that the Applicant met the financial requirements for the Visa pursuant to cl 500.214. The Applicant was required to have genuine access to funds that were sufficient to meet her costs and expenses during her intended stay in Australia.
[5] CB 38-40.
On 25 August 2017 the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[6] On 29 August 2017 the Tribunal acknowledged receipt of the Review Application and advised the Applicant that material or written arguments should be provided to the Tribunal as soon as possible.[7] The Applicant did not provide any material in response to the Tribunal’s correspondence.
[6] CB 42-44.
[7] CB 54-61.
On 21 December 2018 the Applicant was invited to attend a hearing before the Tribunal on 24 January 2019 (Hearing Invitation).[8] The Hearing Invitation informed the Applicant that evidence that she met the requirements for the grant of the Visa was required at least seven (7) days before the Tribunal Hearing and requested evidence of: the Applicant’s financial capacity, current enrolment and past studies.[9] Specifically the Hearing Invitation stated:[10]
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. […]
In addition, please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:
[…]
3. Either:
•Documents that demonstrate you have genuine access to sufficient funds to meet your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
OR
•Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.
[8] CB 64-73.
[9] CB 65.
[10] CB 64-65.
On 23 January 2019 the Applicant’s migration agent BAJWA Immigration Consultants (Migration Agent) submitted by email the following documents to the Tribunal: letters of support from the Applicant’s cousin in the United Kingdom and brother in Nigeria; a bank statement from an account held by the Applicant’s cousin in the United Kingdom and Applicant’s brother in Nigeria; a letter from the Bank of Melbourne stating the balance of an account held by the Applicant as at 23 January 2019 and a transaction listing as at that date; the Applicant’s CoE; the Applicant’s course completions to date; a copy of an extract of the Applicant’s passport; currency conversion rates; and the Applicant’s Bachelor’s Completion Certificate.[11] The Applicant’s Migration Agent informed the Tribunal that the Applicant had a total of $23,956.97 spread over three (3) accounts to support her stay in Australia and requested an extension of time to ‘provide the letter from the college about the fee payment’.[12] It is noted that the Migration Agent’s email dated 23 January 2019 to the Tribunal, referred to: a ‘Letter of support from brother in United Kingdom’; and a ‘Bank statement of Brother United Kingdom’.[13]
[11] CB 83, 86-101.
[12] CB 83.
[13] CB 83.
On 24 January 2019 the Applicant appeared at the Tribunal Hearing with Jujhar Bajwa appearing for the Migration Agent.[14] The Applicant tendered a document which recorded that the Applicant had transferred ‘school fees’ in the sum of $3,000 on 23 January 2019 from a Bank of Melbourne Account.[15] During the Tribunal Hearing the Applicant asked the Tribunal to grant her further time to submit further evidence of her financial capacity. The Tribunal did not accede to this request and did not grant an adjournment for the Applicant to provide further evidence.
[14] CB 110-113.
[15] CB 114.
At the Tribunal Hearing the Tribunal provided an oral decision affirming the Delegate’s Decision.[16]
[16] CB 127-129, [2].
On 5 February 2019 the Tribunal provided a written statement of the Tribunal’s Decision, as requested by the Applicant on 24 January 2019.[17]
[17] CB 126.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision is at 127 to 130 of the Court Book.
The Tribunal first outlined the background to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [9].
The Tribunal reviewed the evidence provided by the Applicant. The Tribunal noted that the Applicant only provided evidence to the Tribunal the day before the Tribunal Hearing and that the Applicant admitted that the Applicant’s ‘brother in the United Kingdom’ was her cousin. The Tribunal discussed the various bank accounts submitted by the Applicant. The Tribunal noted that the balance in the accounts had reduced and that they had no consistent in-goings. The Tribunal calculated that a total sum of $23,070 was available in these accounts: Tribunal’s Decision [10] to [14].
The Tribunal calculated that the Applicant’s total expenses, including fees, living expenses and travel expenses, were in the sum of $33,290. The Tribunal factored in that the Applicant had transferred part of her fees: Tribunal’s Decision [15] and [16].
The Tribunal considered the Applicant’s request at the Tribunal Hearing for more time to submit evidence. The Tribunal stated that the Applicant had been ‘asked a number of times to provide the evidence’ and had failed to do so. The Tribunal determined that the Applicant had ‘ample time and opportunity to provide the evidence that was required’ and that it was ‘not prepared to grant further time for the submission of further evidence’: Tribunal’s Decision [18].
The Tribunal found that the evidence of funds held by people the Applicant claimed were related to her fell a ‘long way short’ of what the Applicant required. The Tribunal found that the Applicant failed to provide evidence of genuine access to funds and therefore was satisfied that the Applicant did not satisfy cl 500.214: Tribunal’s Decision [17], [19] and [20].
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 20 February 2019, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 1 September 2023 Orders were made by a Registrar of this Court for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence.
This matter was heard on 18 October 2023 at the Hearing. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.
The Applicant relied upon the following documents:
(a)The Application;
(b)The Affidavit of the Applicant sworn and filed 20 February 2019 (Applicant’s Affidavit);
(c)The Applicant’s Written Submissions, lodged 4 October 2023 and accepted for filing 5 October 2023 (Applicant’s Submissions); and
(d)The Applicant’s List of Authorities, filed 13 October 2023 and accepted for filing 16 October 2023.
The Minister relied upon:
(a)The Response, filed 27 February 2019;
(b)The Minister’s Submissions;
(c)The Minister’s List of Authorities, filed 11 October 2023; and
(d)The Minister’s bundle of authorities sent by email to my Associates’ Chambers on 13 October 2023.
Both parties relied on the Court Book. The Court has also reviewed the transcript of the Hearing where the solicitor for the Applicant and the Minister each made submissions.
The Application contains three (3) grounds of review (Grounds of Review):
1.The Tribunal committed an error of law, fact or jurisdiction by not attributing significant weight to the information and evidence suggesting that my financial capacity was sufficient despite providing evidence of financial support and the assistance I would be receiving from my family overseas and further evidence I would have provided to the Tribunal had I been granted time. (Ground 1)
2.The Tribunal committed an error of law or jurisdiction by not appropriately questioning me about my financial capacity and the further evidence I would be providing. (Ground 2).
3.The Tribunal committed an error of law or jurisdiction by not giving me adequate opportunity to inform the Tribunal and provide further evidence about my financial capacity and support I would be receiving. (Ground 3).
(Words in bold added, otherwise as written).
The Applicant’s Submissions stated that the Applicant only sought to rely on Ground 3.[18] The solicitor for the Applicant confirmed at the Hearing that Ground 1 and Ground 2 were abandoned.[19]
CONSIDERATION
[18] Applicant’s Written Submissions, filed 5 October 2023, ‘SUBMISSIONS’, 2.
[19] Transcript P7:L43-P8:L25.
The finding that the Applicant did not have evidence of genuine access to funds
Ground 3 contends that had the Applicant been granted more time she would have been able to provide further evidence of her financial capacity and therefore the Tribunal would not have found that she did not satisfy cl 500.214. Clause 500.214 provides that:
500.214
(1)The Applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2)While the applicant holds the visa, sufficient funds will be available to meet:
(a)the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b)the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
(Emphasis added)
The solicitor for the Applicant made submissions at the Hearing as follows:
(a)The consequence of not allowing the Applicant further time to substantiate her financial position was that the Tribunal “arbitrarily calculated” the Applicant’s expenses and financial capacity.[20] In response, the solicitor for the Minister noted that no issue with the Tribunal’s calculation or assessment of the finances and expenses, apart from the refusal to grant further time, had been advanced by the Applicant in the Application.[21] I accept the Minister’s submission.
(b)The Tribunal considered irrelevant factors, such as: the date of the Visa Application and that the Visa Application was the Applicant’s third student visa; and failed to consider that the Applicant’s Migration Agent had submitted 11 documents relevant to her income and had requested an extension of time regarding documentation about fees.[22] In response, the solicitor for the Minister submitted that the Application did not dispute the Tribunal’s decision to not grant an extension of time prior to the Tribunal Hearing in relation to the Applicant’s request to provide evidence of school fees, and in any event evidence of the payment of ‘school fees’ was provided by the Applicant at the Tribunal Hearing.[23] The solicitor for the Minister further submitted that the third student visa and the procedural history relating to the Applicant’s visas were relevant factors as it was evidence that the Applicant should have been aware of the criteria and evidential requirements of the Visa.[24] I agree with the Minister’s submissions.
(c)“Practical injustice” occurred on the basis that if the Tribunal had complied with its obligation to afford procedural fairness to the Applicant there was a realistic possibility that a “different decision” could have been made and the Applicant could have applied for permanent residency.[25]
[20] Transcript P6:L18-29.
[21] Transcript P13:L19-26.
[22] Transcript P7:L1-7
[23] Transcript P13:L7-15.
[24] Transcript P19:L20-33.
[25] Transcript P8:L34-43.
The solicitor for the Minister submitted that only Ground 3 of the Application was before the Court and that the Grounds of Review only concerned the issue of the adjournment, as requested by the Applicant during the Tribunal Hearing.[26] I accept this submission.
[26] Transcript P13:L21-26.
The matters raised by the solicitor for the Applicant, as summarised in [32], were not pleaded as grounds of review in the Application and were not advanced on the evidence before the Court. The determination of Ground 3 only concerns the Tribunal’s decision to not adjourn the Tribunal Hearing. The Tribunal’s Decision at [18] relevantly stated the following:
18.You say "Could I be granted more time to provide further evidence because my brother would be able to show that he has got more evidence in his business?" Well, the situation, as I said, is that this is an application for a third student visa. It was lodged back in July 2017. You have been asked a number of times to provide evidence and have failed to do so. I believe you have had ample time and opportunity to provide the evidence that was required, and I am not prepared to grant further time for the submission of further evidence.
(Emphasis added)
The issue for determination as contended by Ground 3 and the Applicant’s evidence, is whether the Tribunal’s refusal of the Applicant’s request to adduce further evidence was a breach of procedural fairness and/or was unreasonable in the circumstances. The Court notes that in the Applicant’s Affidavit at [9] the Applicant deposed to the following:
9.No request was made, upon submitting the AAT application, to provide evidence of financial support or capacity, nor was I advised to do so.
For the reasons that follow, the matters deposed to by the Applicant in [9] of the Applicant’s Affidavit were patently incorrect.
Procedural fairness requirements
The solicitor for the Applicant submitted that the Tribunal committed a jurisdictional error by failing to consider the statutory provisions and common law principles by not granting the Applicant an extension of time to substantiate her evidence.[27] The Applicant’s Submissions referred to the objectives of the Tribunal in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and cited authorities regarding the function of Tribunal in merits review. The Applicant relied on Kioa v West (1985) 159 CLR 550 at 584 (Kioa) in support of the argument that the Tribunal breached the rules of natural justice and/or procedural fairness, by refusing to adjourn the matter to receive new evidence and deciding the matter on the available documents. The solicitor for the Applicant submitted that common law principles are not extinguished by the AAT Act and the Migration Act, and that even if they were, procedural fairness obligations in s 375A of the Migration Act and in the AAT Act required a fair and just hearing.[28]
[27] Transcript P11:L29-31.
[28] Transcript P10-11.
The solicitor for the Minister submitted that the Applicant was not denied procedural fairness as the Tribunal complied with codified procedural obligations. The solicitor for the Minister submitted that the Applicant’s submissions relating to Kioa had no direct application to the codified procedure in Div 5 of Pt 5 of the Migration Act, as it provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. The Solicitor for the Minister submitted that s 2A of the AAT Act does not compel the Tribunal to grant an adjournment and argued that the objectives of the AAT Act equally weigh in favour of not granting an adjournment.[29]
[29] Transcript P21:L29-41.
It is well established that a decision may be infected by jurisdictional error in circumstances where procedural fairness has been denied. The Migration Act contains sections that codify the Tribunal’s procedural fairness obligations and provide exhaustive statements of the requirements of the natural justice hearing rule. The Tribunal’s discretionary power to adjourn the review of a matter under s 363 sits within Div 5 of Pt 5 of the Migration Act. Therefore, Section 357A applies to the refusal to adjourn in question and requires that: the Tribunal must act in a way that is fair and just, and Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [57] the requirement in s 357A of the Migration Act for the Tribunal to act in a way that is fair and just in applying the codified procedure, was described as bearing the hallmarks of the obligation of procedural fairness at common law. What is “fair and just” in an act of the Tribunal is to be determined from the purpose of the provisions which give the Tribunal the power to perform the act(s) and the surrounding provisions: Li at [58]. Whilst the Applicant correctly identified authoritative caselaw regarding the function of the Tribunal and the requirements of procedural fairness, the authorities relied upon by the Applicant only offer assistance in providing context to the codified procedural fairness requirements in the Migration Act. The objectives of the AAT Act do not override other obligations. Rather, s 2A of the AAT Act is relevant insofar as it provides and reinforces factors to be considered in the Tribunal’s exercise of its statutory powers in a way that is fair and just, and affords procedural fairness to applicants.
Whether the refusal to adjourn the matter was a breach of procedural fairness or otherwise unreasonable
The Applicant submitted that in denying her the opportunity to address the issue for determination, by granting her an extension of time to provide further evidence, the Tribunal denied the Applicant natural justice and/or procedural fairness. The Applicant submitted that she informed the Tribunal that she could not continue the hearing and that she required more time to collect further evidence in support of her Visa Application.
The solicitor for the Minister contended that there was no denial of procedural fairness, or similarly unreasonableness, in the Tribunal refusing to grant additional time to the Applicant.[30] The solicitor for the Minister submitted that the Tribunal’s refusal to adjourn was not unreasonable and did not lack procedural fairness, as the Applicant had been on notice for over 16 months of the issue to be determined before the Tribunal and the requirement to provide information in support of her financial capacity. The solicitor for Minister pointed to the following as evidence in support of the Minister’s submissions that the Tribunal was not required to afford the Applicant a further ‘indulgence’ to fortify her case:
(a)The Delegate’s Decision, at 38 to 41 of the Court Book, which clearly identified the issue that the Applicant required further information and put the Applicant on notice from 8 August 2017.[31]
(b)The letter of acknowledgment of receipt of the Review Application dated 29 August 2017, at 54 of the Court Book, which further put the Applicant on notice that she was required to submit information in support and provide material “as soon as possible”.[32] The Applicant did not submit material in response to this letter until the day before the Tribunal Hearing.
(c)The Hearing Invitation, at 64 of the Court Book, which again put the Applicant on notice from 21 December 2018 that she was required to provide specific criteria information to the Tribunal, reiterated the dispositive issue and set a timeline for the provision of evidence.[33]
(d)The Applicant’s response to the Hearing Invitation, dated 9 January 2019, at page 74 of the Court Book, which does not address the sufficient funds criteria and shows that the Applicant was aware of the Hearing Invitation prior to the Tribunal Hearing.[34]
(e)The Applicant did not submit any material until 23 January 2019, at 83 of the Court Book.
[30] Transcript P13:L39-45.
[31] Transcript P14:L33-P15:L40.
[32] Transcript P15:L40-P16:L10.
[33] Transcript P16:L14-29.
[34] Transcript P16:L44-P17:L2.
The solicitor for the Minister submitted that in the circumstances, as summarised in [42], an adjournment was not required for a real and meaningful hearing, carried out in a fair and just way, as contemplated by s 360 of the Migration Act and codified procedural fairness requirements.
The Tribunal’s Decision set out the background of the matter at [3] to [8] and explains the reasons for the Delegate’s Decision. The Tribunal sets out the requests for information and notifications of the dispositive issue, as outlined in [42]. The Tribunal at [11] to [13] then assessed the Applicant’s evidence and traversed the concerns with the Applicant’s evidence. The Tribunal then calculated the Applicant’s funds and expenses based on the information before it: [4] to [17] Tribunal’s Decision. Based on the analysis outlined above, the Tribunal concluded that the Applicant failed to provide, having been on notice of the dispositive issue and having been given ample opportunity to do so, evidence of genuine access to funds.
I am satisfied that no procedural requirement was breached by the Tribunal in exercising its discretion to not adjourn the matter. As submitted by the solicitor for the Minister, the Tribunal met its obligation in s 360 of the Migration Act to invite the Applicant to appear and give evidence and present arguments. The Delegate’s Decision notified the Applicant that she had failed to provide sufficient evidence and the Hearing Invitation put the Applicant on notice that she had to provide evidence of her financial capacity. The Applicant was aware that the dispositive issue was whether she had sufficient funds to meet her expenses and that she needed to provide evidence to satisfy the Tribunal that she had genuine access to sufficient funds. The Applicant was aware of the determinative issue in her matter, had sufficient opportunity prior to the Hearing to provide evidence and the Tribunal provided a meaningful opportunity to address the Tribunal at the Tribunal Hearing. The Tribunal exercised its discretion in s 363(1)(b) of the Migration Act in accordance with the objectives of the AAT Act and the codified obligations in the Migration Act.
As submitted by the solicitor for the Minister, reasonableness depends on the context of the statutory scheme and requires a decision or exercise of power to not lack an evident and intelligible justification: Li at [63] and [76]. I am satisfied that no jurisdictional error can be found in the Tribunal’s decision to not grant the Applicant additional time to provide further evidence. The decision was not legally unreasonable. The Tribunal had an evident and intelligible justification for declining the Applicant’s request, being that the Applicant had over 18 months to provide information and was put on notice about the issues for determination and the evidence she was required to submit. The Tribunal’s Decision provided reasons based on evidence before it and the refusal cannot be said to be outside reasonable decision making, even if another member of the Tribunal may have allowed the adjournment.
I am satisfied that no jurisdictional error can be found in the Tribunal’s decision to not grant the Applicant additional time to provide information. Ground 3 must be dismissed.
CONCLUSION
No jurisdictional error can be found in the Tribunal’s decision not to grant the adjournment of the Tribunal Hearing so that the Applicant could seek further evidence of financial capacity for the purposes of cl 500.2142. The Application must be dismissed.
The Minister sought costs fixed in the sum of $7,467.[35] This amount is the scale amount at the time the Application was filed as provided in Item 3 in Division 1 of Part 3 of Schedule 1 of the Federal Circuit Court Act 2001 (Cth).
[35] Outline of the Minister’s Submissions, filed 11 October 2023, [19(c)]; Transcript P22:L3-10.
Orders will be made accordingly.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 2 November 2023
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