Ayub v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 79
•5 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ayub v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 79
File number(s): MLG 784 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 5 February 2025 Catchwords: MIGRATION - Temporary Graduate (Class VC) (Subclass 485) visa – application for judicial review – amendment of application to seek mandamus - failure to accompany visa application with evidence – Regulation 485.215 - whether Tribunal failed to consider all materials available to it – whether Tribunal failed to consider a material fact – error of law - application allowed Legislation: Migration Act 1958 (Cth) s 476(1), 65, 54, 55, 56
Evidence Act 1995 (Cth) s 52
Migration Regulations 1994 (Cth) Sch 2 sub-cls 485.215, 500.215, 485.215(1), 487.216
Cases cited: Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 622
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1416
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59
FRA18 v Minister for Home Affairs [2019] FCCA 2287
Gulati & Anor v Minister for Immigration [2012] FMCA 491
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] (2024) 418 ALR 152; [2024] HCA 12
Lumbini v Minister for Immigration & Border Protection [2018] FCCA 1142
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Nguyen v Minister for Immigration & Border Protection (2016) 310 FLR 339; [2016] FCCA 1523
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24; [1986] HCA 40
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1342
Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889
Todhunter v Attorney-General (Cth) (1994) 52 FCR 228
Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32
Winkler v Director of Public Prosecutions (1990) 25 FCR 79
Division: Division 2 General Federal Law Number of paragraphs: 95 Date of last submission/s: 12 December 2024 Date of hearing: 12 December 2024 Place: Melbourne Solicitor for the Applicant The Applicant appeared in person Solicitor for the Respondents Mr J Mangos, Sparke Helmore Lawyers ORDERS
MLG 784 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOHAMMED AYUB
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review dated 19 March 2019 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicant’s application for review according to law.
2.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
3.The name of the second respondent be amended to Administrative Review Tribunal.
4.The decision of the Administrative Appeals Tribunal made 6 March 2019 be quashed.
5.A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law.
6.The applicant’s costs and disbursements of and incidental to the proceeding be agreed and if not agreed, are to be fixed by the Court at a later date.
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 CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 6 March 2019 to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Temporary Graduate (Class VC) (Subclass 485) visa (visa).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”. References to the Act are references to the Migration Act 1958 (Cth).
BACKGROUND
The applicant is a citizen of India. He first arrived in Australia in June 2013 as the holder of a (Subclass 500) student visa. The applicant then completed a Master of Management (Engineering) degree from CQ University Australia (CB 19).
On 29 January 2018, the applicant applied for the visa (CB 1-21). At the time of his application for the visa the applicant’s Subclass 500 student visa had not expired. On page two of the application form, the applicant was asked the following (CB 2):
Health Insurance
Do you and all applicants included in this application hold health insurance?
The applicant answered “No” to this question. This was a mistake by the applicant as he did hold health insurance at that time but was confused by the period for which insurance was required to be held.
Below the answer, the following note appears on the application form (CB 2):
You must attach evidence of adequate health insurance after the lodgement of this application on the “Attach documents to a lodged application” page.
Note: To meet the requirements for this visa you must have adequate health insurance.
The primary criteria for the grant of a Subclass 485 visa are set out under sub-clause 485 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations). Clause 485.215 provides:
485.215
(1)When the application was made, it was accompanied by evidence that the applicant had adequate arrangements for health insurance.
(2)The applicant has had adequate arrangements for health insurance since the time the application was made.
On 19 March 2018, a delegate of the Minister refused to grant the applicant the visa (CB 23–7). The delegate found that the applicant did not satisfy cl 485.215 of Sch 2 to the Regulations because the applicant did not provide any additional documentation at the time of the application to indicate he had adequate arrangements in Australia for health insurance. There was no request by the delegate that the applicant provide further evidence of adequate health insurance before making the decision to refuse the visa and no indication by the delegate that a decision would be made adverse to the applicant based on insufficient evidence.
On 8 April 2018, the applicant applied to the Tribunal to review the delegate’s decision (CB 28–9).
On 4 May 2018, the applicant obtained confirmation from Bupa that he had the minimum level of health insurance coverage required by the Department of Immigration and Border Protection (Department) from 14 March 2018 onward for the purpose of the visa (CB 48). Prior to that date, the applicant held health insurance coverage with Medibank Private for the period 24 June 2013 to 15 March 2018 for the purpose of the Subclass 500 student visas (CB 47).
On 15 January 2019, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (CB 35–7).
On 24 January 2019, the applicant responded to the Tribunal’s invitation by completing a “Response to Hearing Invitation” (CB 38-49). Accompanying that document were two certificates of insurance confirming that the applicant held student health insurance coverage for the periods of 24 June 2013 to 15 March 2018, and from 14 March 2018 onward (CB 47–9). The certificates of insurance were not previously provided or submitted to the delegate before the delegate made the decision to refuse the application for the visa. However, proof of insurance was submitted to the Tribunal upon request and before the Tribunal conducted the review. That evidence showed that the applicant had insurance in place at the time of the application for the visa and immediately following the date on which the application was lodged electronically with the Department.
In the application to the Tribunal, the applicant provided a written submission dated 5 February 2019 (CB 41–6). In that submission, the applicant said (verbatim) (CB 42);
On 29 January 2018,the applicant has applied his visa and the delegate’s has refused to grant the Visa on 19th March 2018. At the time of the application he was holder of the student Visa (Student (Temporary) (class TU) Student (subclass 500) which was to be expired on 15th March 2018. Due to his student visa he was having student health cover which is valid till 15th March 2018, and he had contacted the student health insurance providers (Bupa and Medibank) to take the non-student health cover to apply for his post study visa. Both of them advised the applicant that he doesn’t have to take non- student health insurance till his student visa expires. On the words of insurance providers he has proceeded his 485 visa application on his own by declaring “no” for the question “Do you and all applicants included in this application hold health insurance?”. Anyhow he was communicating with insurance provider by phone since his application lodged (Applicant doesn’t have evidence ) . As insurance provider (BUPA ) had given word that non-student health insurance system automatically generate policy which would start from 14th March 2018. Applicant did not pay attention on the insurance. All of sudden, delegate has refused the application on the basis of applicant doesn’t meet the criteria of cl.485.215 for subclass 485. Applicant did remember that he had provided his over seas student health cover with his 485 visa application. However , delegate didn’t make a request before refusing the visa.
The written submission claimed that the applicant had made an innocent and genuine mistake in answering “no” to the question, “Do you and all applicants included in this application hold health insurance?” (CB 43).
The written submission also referred to the note that appears on the application form, immediately below the health insurance question at question two (CB 44). That note states that proof of insurance must be submitted after the application is lodged but does not specify when the applicant must do so.
On 13 February 2019, a hearing of the application for review was held at the Tribunal. The applicant appeared and was represented by a migration agent (CB 52).
On 17 February 2019, the applicant provided a “Further Written Submission” to the Tribunal (CB 57–61). In that submission, reliance was placed upon two cases, Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32 (Waensila) and Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; [2010] HCA 8 (Berenguel), as authority for the proposition that the Tribunal should conclude that there was substantial compliance with cl 485.215 of the Regulations and that there was at all material times evidence of valid health insurance (CB 62-93).
TRIBUNAL DECISION
On 8 March 2019, the Tribunal provided the applicant with a written Statement of Decision and Reasons in which the Tribunal affirmed the decision of the delegate to refuse to grant the visa (Decision) (CB 97–103).
In the Decision, the Tribunal identified the issues to be determined as follows (CB 98 [10]):
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream, which criteria include cl.485.215 of Schedule 2 to the Regulations.
The Tribunal then identified the criteria in cl 485.215 of the Regulations, noting that the visa application be accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance and that the applicant had such arrangements since the time the application was made (CB 98 [11]). The Tribunal identified the two issues to be determined as follows (CB 98-9 [12]);
(a)When the visa application was made, was it accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance? And, if so, (emphasis added)
(b)Had the applicant had adequate arrangements in Australia for health insurance since the time the application was made?
The Tribunal considered the applicant’s explanation as to why he had answered “no” to question two on the application form (CB 99 [13]-[14]). That included his explanation that he had misunderstood the question and the period for which insurance was required at the time of making the application for the visa. The Tribunal then considered the submissions made on behalf of the applicant by his migration agent (CB 99 [18]).
The Tribunal accepted that one of the requirements for the grant of a Subclass 500 visa was that “the applicant had given evidence of adequate arrangements in Australia for health insurance during the period of the intended stay in Australia (cl.500.215)”. The Tribunal further found that it was “likely that information provided to the Department at the time of the applicant’s student visa application included evidence showing that the applicant had health insurance arrangements up until 15 March 2018, therefore covering the date of the Subclass 485 visa application” (CB 100 [21]).
At paragraph [25] of the Decision, the Tribunal held (CB 100 [25]):
[25] The Tribunal accepts that the applicant had likely, for the purposes of a previous student visa application, provided the Department with evidence of him having health insurance until 15 March 2018. The Tribunal now has evidence before it that the applicant continued to have that insurance at the time of the visa application on 29 January 2018. However, although the Department had likely previously been provided with evidence of the applicant holding health insurance until 15 March 2018, it does not follow that at the time of the visa application that health insurance was still current (i.e. had not been cancelled at the time of the visa application or otherwise). The requirement of cl.485.215(1) is very specific and there is no discretion allowed. The visa application was required to be accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance at that time. There is no discretion that can be exercised.
The Tribunal then considered the supplementary submissions made in writing after the hearing on 17 February 2019 (CB 100 [26]). The Tribunal distinguished the High Court decision in Berenguel and the decision of Full Court of the Federal Court in Waensila per Griffiths J (CB 101 [27]-[28]).
The Tribunal made the following finding (CB 102 [29]-[30]):
[29] For completeness the Tribunal also considered whether the applicant having now provided evidence to the Tribunal of having had adequate arrangements in Australia from the time of the visa application, can be considered to be evidence that accompanied the visa application. The visa application was made on 29 January 2018. The required evidence was provided to the Tribunal on 5 February 2019.
[30] The Tribunal was not satisfied that this evidence provided on 5 February 2019, over a year after the visa application was made, and after the delegate’s decision, can be considered as having ‘accompanied’ the application as required. In this regard, the Tribunal had regard to the case of Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a Subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29-day gap was too great.
The Tribunal concluded that the visa application was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance from the time of the visa application and that cl 485.215(1) of the Regulations was not met as required (CB 102 [31]-[32]). The Tribunal then held that it was satisfied on the evidence that the applicant did have adequate arrangements in Australia for health insurance from the time of the visa application, however, as the Tribunal found that cl 485.215(1) was not met, it was not necessary to consider that issue (CB 102 [33]-[35]). The Tribunal affirmed the decision of the delegate to refuse the visa (CB 102 [36]).
PROCEEDINGS IN THIS COURT
On 19 March 2019, the applicant filed an application for judicial review in this Court The application was supported by an affidavit of the applicant affirmed 19 March 2019. In that affidavit, the applicant said (verbatim):
3.I have exceptional circumstances behind not attaching the student health insurance with my 485 visa application also there was small administration area in Bupa to issue the 485 health cover. Eventually it was solved when I am returned to Australia from India, I was in India during the process of 485 visa, tribunal did not considered by tribunal also by immigration which is not fare. The small mistake deserved to big punishment which is unjust to me.
In the application for judicial review, the applicant identified the following grounds of review (verbatim):
(1)I am seeking judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) made on 6th of March 2019. In that decision, the Tribunal did not assess the decision according to the act of the delegate to grant or process my Post Graduate work stream Visa (485 Subclass).
(2)Tribunal decision got me to raise the question of denial of procedural fairness. Tribunal member has mentioned that Overseas Student Health Cover and 485 Health Insurance with submission in Feb 2019 is not acceptable. To the extent to which I had been invited to comment on my review application so that I had to submit the documents with written submissions. during the Tribunal hearing, I have given oral explanation in regarding my lack of knowledge; if I knew that there was no health insurance documents submitted with my 485 Visa application I would have submitted. There was a technical glitch which can’t be explained. Document appears to be attached some time they are not attached through the portal. I was very busy during the application lodgement. Also I had the document with me , the same documents submitted with my previous student visa application which is valid till 15th March 2018. Usually any applicant undergo the Medical examination in last 12 months that would be valid for 12 months for certain visa where the medical automatically detected from the Immigration records. In my case my Student visa health insurance which was submitted has not been picked-up by delegate.
(3)Tribunal member did not accept my reason with evidence how I could not submit the evidence ( health insurance) with my visa application, I have submitted the trave evidence also I have done written submissions two times. Therefore, denial of procedural fairness must be examined in the light of the circumstances of the particular case. As I have already said, I have supplied my Student Health Insurance and 485 Health insurance to the tribunal. The tribunal member quoted that these evidence can’t accepted in the tribunal decision, as tribunal has apply same law as delegate, what act is stopping the tribunal to accept the evidence is the main question?.
(4)The Tribunal misconstrued clause cl.485.215(1)of Schedule 2 of the Migration Regulations 1994 and did not consider relevant case references which are submitted & explained with written submission. The Tribunal erred when it found that there is no temporal connection with case reference which are given in written submission. Also the tribunal fell into error in considering my arguments put in written submissions in regarding exceptional circumstances where I wasn’t able to attach the health insurance document.
(5)Tribunal did not recognise and did not understand my case which is improper according to act. I believe tribunal decision has jurisdictional error. Because “The Tribunal unquestionably has a discretionary power to accept every single evidence submitted from applicant. And Tribunal can think largely within the discretion to analyse the applicant situations. In my case, relevant to the exercise of that discretion by the tribunal in the present context is the legislative direction that it is exercised in fair and just or not?”.
(6)In my case tribunal made out the decision. the views member appear to be there is some lack it might differ to Migration Act 1958, on my view against the 485 criteria, I meet the criteria of cl.485.215(1) as I have already indicated that I do have both health insurances but not attached with application, the Tribunal’s decision in this regard is not practicable. Likewise, for the reasons already expressed in above paragraphs including my written submissions , the Tribunal’s decision is to be considered as the tribunal decision has Jurisdictional error.
(7)For the reasons written/ explained at above paragraph in this application, I believe that my application is eligible for judicial review, hence I have decided to lodge this application on my own, due to festive season there are very few solicitors available in the market and they are changing very expensive money.
(8)All the documents and evidence has been submitted to tribunal and Immigration, in case of anything needed I will submit to the court later stage when I do the further submissions after I hire solicitor.
On 2 June 2021, 3 July 2024 and 4 July 2024, orders were made by Registrars of this Court for the filing and service of further evidence and written submissions. However, the applicant did not file any further evidence or written submissions.
A hearing of the application for judicial review took place before this Court at Melbourne on 12 December 2024. The applicant appeared in person and where required, was assisted by an interpreter fluent in the Urdu and English languages. The applicant’s command of the English language was good, and the assistance of the interpreter was rarely required.
The Minister was represented by Mr Mangos, solicitor.
The Court confirmed that the applicant received a copy of the Court Book prepared on behalf of the Minister and the Minister’s outline of written submissions. The applicant had copies of the relevant documents with him in Court.
Noting that the applicant was unrepresented, the Court gave the applicant an opportunity to elaborate on and further articulate his grounds of review. It was explained that the Court cannot review the merits of the Tribunal’s Decision to refuse the visa, rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the Decision. It was explained to the applicant that the Court cannot grant the applicant the visa but is confined to determining whether the Tribunal has made a “jurisdictional error”. The Court invited the applicant to explain why the Tribunal’s Decision was wrong and to identify any jurisdictional error.
The Court also notes that the application for judicial review filed by the applicant only sought an order to quash the Tribunal’s decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of not properly invoking the Court’s jurisdiction in the matter pursuant to s 476(1) of the Act (see FRA18 v Minister for Home Affairs [2019] FCCA 2287 [15] and [21]). Noting that the applicant was unrepresented, it is understandable that the applicant may not have appreciated the importance of this technicality, and noting that solicitors for the Minister have not raised this technicality in the written submissions made on behalf of the Minister, the Court will order that the application dated 19 March 2019 is amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion (see Singh v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 889 [44]–[51]). The Court finds that it is in the interests of justice and the overarching purpose of the Rules to dispense with non-compliance for the purpose of this proceeding.
APPLICANT’S SUBMISSIONS
The applicant’s submission was simple and credible. At the time of completing the application form, he made a mistake by answering “no” to the question on page two about whether the applicant held health insurance. He completed the form himself and answered the question truthfully because he had not yet secured cover for the period for which the Subclass 485 visa was required.
At the time of completing the application form, he held cover for his student visa and then intended to obtain cover for the period after 15 March 2018. He did so, however, the delegate’s decision was made on 19 March 2018 before he could confirm and submit proof of cover. Having received the delegate’s decision, he frantically sought to confirm coverage whilst overseas which he did on 4 May 2018 (CB 48). He obtained advice that he would need to seek review of the delegate’s decision by application to the Tribunal for reconsideration of the application.
The Court accepted the applicant’s assertions as accurate and they are consistent with the documents provided to the Tribunal, however, the Court informed the applicant that in order for his matter to be reconsidered and for the Court to assist him, the applicant must identify a mistake or jurisdictional error in the Tribunal’s Decision (CB 47-9). A “jurisdictional error” is a serious error of fact or law or procedure which meant that the Tribunal had not performed its statutory task.
When asked if the applicant had anything further to say to the Court, he stated that he was advised by friends who had applied for other visas that it was only until the Minister requested information that his friends submitted evidence or documents to it, which was after the lodgement of the visa application. Having relied on this, the applicant was under the assumption that the evidence could be provided to the Minister at a later date or when requested by the Department.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Mr Mangos submitted that there was no evidence explaining why the applicant did not submit proof of health insurance cover prior to responding to the Tribunal’s request for information in February 2019. It was submitted that it had taken the applicant more than a year to submit proof of health insurance, despite being significantly put on notice of the reason for the refusal when he was notified of the delegate’s decision on 19 March 2018.
The Minister relied on the outline of written submissions filed 28 November 2024 and addressed each of the grounds of review identified in the application for judicial review.
In response to grounds one, seven and eight, it was submitted that these grounds were simply a recital of background facts and did not identify any jurisdictional error.
Ground two was an allegation of a denial of procedural fairness. The Minister submitted that the Tribunal complied with the statutory obligations to accord procedural fairness and that the applicant was given the opportunity to provide information and to attend a hearing. The applicant was made aware of the issues to be determined by the Tribunal and was given the opportunity to submit supplementary submissions, which the applicant took advantage of (CB 55–93).
Mr Mangos then referred to the decision of Katzmann J in Anand v Minister for Immigration and Citizenship [2013] FCA 1050 (Anand). In that case, the visa was refused because it was found that the appellant did not comply with cl 487.216 of Sch 2 of the Regulations by failing to provide evidence that he had applied for an Australian Federal Police check within the 12 months before lodging his application. However, the applicant had in fact done so within the prescribed time frame. Two days after the delegate’s decision to refuse the visa for non-compliance, the appellant’s migration agent advised the Department that the police clearance had in fact been obtained and before the delegate’s decision. The issue for determination before that Court was whether the visa application must be “accompanied by” evidence of an application for a police check and whether the Migration Review Tribunal erred in its construction of cl 487.216 of the Regulations.
The solicitor for the Minister referred to her Honour’s finding that the Tribunal interpreted the phrase “accompanied by” too narrowly and that evidence of the police check could be supplied after the visa application had been lodged, however, found that there must be some “temporal connection” with the lodging of the application (see Anand at [28]).
Mr Mangos also referred to the case of Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (Khan) which provides that the responsibility for obtaining the evidence required for a visa application is that of the visa applicant, not the Minister, and that visa applicants assume responsibility for putting into motion their application (see Khan at [18], [22]). It was submitted that despite contending that he did have the adequate arrangements for health insurance and documentation, there was no reason why that responsibility was not assumed by the applicant when making his application for the visa.
It was submitted that there is some flexibility or elasticity in the phrase “accompanied by”, but it was emphasised that such words are “not so elastic as to stretch to evidence submitted…five months after the application was lodged” (see Anand [27]-[28] per Katzman J). Mr Mangos stated that in Anand, the delay in question was five months after the visa application had been lodged and two days after the delegate’s decision was made, in contrast to the applicant’s delay of approximately one year between the application lodgement and provision of evidence of the health insurance arrangements. It was submitted that the approaches adopted in Anand and Khan were also endorsed in Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1342 (Sidhu), where Hespe J repeated that the temporal requirement of the words “accompanied by” are not so elastic to stretch the language “so far as it snaps” (see Sidhu at [28] per Hespe J). It was submitted that the words used in cl 485.215 of the Regulations should not be interpreted so as to capture evidence provided to the Tribunal one year after a visa application is made.
Despite the applicant claiming that his failure to submit evidence of the health insurance documents with his visa application was simply “human error”, Mr Mangos submitted that as in the case of Sidhu, issues of fault or human error are not a relevant consideration where the Regulations impose strict criteria about the filing of evidence and in circumstances where the temporal test is raised (see Sidhu at [30] per Hespe J).
The Court noted that the present circumstances differed to those in Anand and Khan, noting that at the time of the delegate’s decision, Department records indicated that it was likely that the applicant had a health insurance policy at the time of the application. That information could establish that the applicant did in fact hold health insurance for the period required by the criteria, despite answering otherwise to question two of the application form. The Court invited the solicitor for the Minister’s to consider whether unilateral or mutual mistakes were something that the Tribunal has the power to rectify on review. In response, Mr Mangos stated that the Tribunal’s interpretation of the clause was conservative, and that although it considered the applicant’s explanations in his further outline of submissions, the Tribunal nonetheless adopted a strict interpretation of the Regulation by finding that the length of time between the application and the provision of evidence was unsatisfactory. It was submitted that it was permissible for the Tribunal to do so and there was no error.
REPLY
The applicant submitted that the Minister should have considered his health insurance documents that were on the Department’s files. When he applied for the visa, he completed the application himself and attempted each question to the best of his ability, however, the applicant did not meticulously read the Regulations. Had the applicant known he was required to submit his health insurance documents at the time of the application, he would have done so at the time. He again submitted that his incorrect response to question two of the application form was merely human error.
CONSIDERATION
The facts in this case are similar to (but not the same as) those in Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 622 (Ahmed No 1) per Judge Humphreys and on appeal in Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1416 (Ahmed) per Rares J, both of which were decided after the Decision and were not cited in submissions in this case.
In those cases, a Judge of the Federal Circuit Court (as it then was) and a Justice of the Federal Court considered the application by the Tribunal of cl 485.215 of Sch 2 of the Regulations to an application for a Temporary Graduate (Subclass 485) visa, where the applicant did not provide evidence of adequate health insurance until after the delegate’s decision not to grant the visa. Both Courts considered Anand and the decision of Judge Burchardt in Nguyen v Minister for Immigration andBorder Protection (2016) 310 FLR 339; [2016] FCCA 1523 (Nguyen) (which was cited by the Tribunal in the Decision).
In Ahmed No 1 and Ahmed, the applicant applied for a Temporary Graduate (subclass 485) visa on 14 February 2017. In answer to question two on the application form, “Do you and all applicants included in this application hold health insurance?”, the applicant said “no”. On 18 April 2017, the Department wrote to the applicant requesting he provide further information. The information sought included that the applicant provide evidence that he held adequate health insurance from the time of lodgement of his application and that those arrangements were still in place. The applicant did not respond to that request. On 25 May 2017, a delegate of the Minister refused to grant the applicant a visa on the basis that the applicant did not meet cl 485.215 of Sch 2 of the Regulations. The applicant then sought review by the Tribunal.
In Ahmed No 1 and Ahmed, the applicant provided evidence to the Tribunal on 31 August 2018 (almost 18 months after the delegate’s decision) showing that he held health cover from 31 March 2017 (which was not at the time of the application). The Tribunal considered the decisions in Anand and Nguyen and concluded that there was no “temporal connection” between the application and the provision of evidence of insurance. The application for the visa was not accompanied by evidence of adequate arrangements for health insurance under cl 485.215(1). At first instance, Judge Humphreys dismissed the applicant’s application for judicial review and found that there was no jurisdictional error by the Tribunal.
On appeal, Rares J was critical of the conduct of the Minister’s Department. In Ahmed, his Honour said at [14]-[16]:
[14] However, the conduct of the Minister’s Department, in the circumstances, is difficult to understand. Once it became clear, after the appellant had given evidence to the Tribunal, that he had made a mistake and that, in fact, he held health insurance at all relevant times to support the application, the Department took no steps to ensure that the time of the Federal Circuit Court and of this Court is not wasted by dealing with an application that should have never been pursued below or in this appeal.
[15] Instead of telling the appellant that he would be allowed to reapply for the visa or giving him some reason why that was not possible, the time of both Courts and the Department was wasted defending the proceedings. The Department has caused the expenditure of significant sums of public money in its defences when it appears to have had no intelligible basis for doing so; this has caused waste of the public resources of both Courts each of which is overwhelmed with other proceedings in which the Minister is a party, and, from the personal position of the appellant, has placed him in administrative limbo for five years. This is an unacceptable position.
[16] There is no explanation before me as to why the Federal Circuit Court had to hear the application below for this Court has had to hear an appeal by the appellant was apparently qualified for the visa but was mistaken in answering one question. The pursuit of both proceedings could and should have been avoided if the appellant were invited to make another application. The Department’s failure to tell him that the Minister could and/or would give him the ability to make a further application, once the merits were apparent (as they emerge in the Tribunal), is incomprehensible.
Nevertheless, his Honour did not find jurisdictional error by the Tribunal or error by the Federal Circuit Court and dismissed the appeal.
The Decision and the application in this proceeding were made before the decisions in Ahmed No 1 and Ahmed were published.
There are some fundamental and important differences between the facts in Ahmed No 1 and Ahmed, and the facts and evidence in this case, which have led this Court to conclude that there was a material jurisdictional error by the Tribunal in making the Decision.
In Ahmed, the applicant was asked by the delegate, before refusing to grant the visa, to provide evidence of adequate health insurance and the applicant failed to do so. The applicant also conceded that at the time of the visa application and the Tribunal’s decision, the applicant did not satisfy the requirements of cl 485.215(1) of the Regulations (see Ahmed (No 1) at [18]). There was no evidence of the applicant having adequate health insurance arrangements at the time of the application and there was no evidence “accompanying” the application for the visa in that case.
There are also distinctions that can be made from the facts and findings in Anand and Khan, and the evidence in this case but some of the observations of Katsman J in Anand are apposite. In particular, her Honour’s observations at [27]:
[27] It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly, that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karps’s submission that there is some flexibility or elasticity in the phrase “accompanied by” (see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103, Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96). It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the Tribunal and the Federal Magistrate construed the words of cl 487.216 too narrowly. The next question is what, if anything, turns on this error of construction.
In Anand, the applicant applied for a Subclass 487 (Skilled - Regional Sponsored) visa that was governed by the criteria in cl 487 of Sch 2 of the Regulations. The primary criteria for the visa required the application to be “accompanied by” evidence that the applicant had applied for an Australian Federal Police check within the 12 months immediately preceding the day the application is made. The applicant applied for a police check before he lodged his visa application but did not disclose in his application that that he had done so. Indeed, he answered “no” to a question in the application form asking if had applied for a police check. In that case, like in Ahmed No 1 and Ahmed, the delegate asked the applicant for evidence of the application for the police check. The response given by his agent was “AFP is still awaited” but there was no evidence provided to the delegate that the check had been applied for within the 12 months before the application was made. The delegate then made a decision refusing the visa because the application was not accompanied by evidence of an application for a police check. Two days after the delegate’s decision the police check arrived. Attached was a receipt showing that the check had been applied for in the week before the application for a visa (hence complying with the relevant regulation). The evidence was submitted, but by then the delegate had refused the visa. The applicant applied to the Migration Review Tribunal for review. It took almost two years for the application to be heard. The Tribunal confirmed the decision to refuse the visa as the application was not “accompanied by” evidence. An application for judicial review was dismissed by the Federal Circuit Court. On appeal to the Federal Court, Katzman J held that evidence accompanying an application could be supplied after the application is lodged but that there must be some “temporal connection” with the application. At [28], her Honour said:
[28] …But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretch so far that it snaps (cf. Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79)
In Khan, a Full Court of the Federal Court considered the proper construction to cl 485.223 of Sch 2 of the Regulations. In that case, the applicant was required to accompany the application with evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant authority. The applicant had not applied for a skills assessment at the time of making the application. He did not do so until two months after lodging the application for the visa. The delegate of the Minister refused to grant the visa. The applicant subsequently obtained the assessment and sought review of the delegate’s decision by the Tribunal. The Tribunal affirmed the delegate’s decision. The applicant then sought judicial review and was also unsuccessful. On appeal to a Full Court of the Federal Court, the Court dismissed the appeal. Relevantly Tracey J observed at [20] of his reasons:
[20] In the present case, however, the Tribunal did not have any discretion as to whether or not to apply the criterion in cl 485.223 to the appellant. Whether or not a visa application is accompanied by the necessary evidence may involve an evaluation of evidence but it does not involve the exercise of the discretion of the kind that would attract the principles in Li (emphasis added).
In Khan, the Full Court also held that the decision of the Tribunal was not unreasonable in the manner identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li). A decision of a decision-maker is not “unreasonable” simply because the result is harsh (see Khan at [21] per Tracey J).
Both Anand and Khan involved consideration of different regulations, but in different factual circumstances to those present in this case.
The Minister also sought to rely on the decision in Lumbini v Minister for Immigration & Border Protection [2018] FCCA 1142 (Lumbini) per Judge Emmett. In that case, the Court also considered cl 485.215 of Sch 2 of the Regulations. There, the Tribunal accepted that the applicants submitted evidence of adequate arrangements for health insurance after the application was made, however, the Tribunal found that the evidence was not provided at the time of the application “nor in response to the letter from the Department seeking further information from the applicant”. The failure in that case was due to an error by the applicants’ agent. In that case, the Court recorded that the applicants contended that the Tribunal “made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/or refusing to give weight to evidence provided by the applicant (sic) and thereby made an erroneous findings and mistaken conclusion” (see Lumbini at [4] and [6]). Regrettably, the Court did not address this submission in terms of the evidence available to the Tribunal but instead relied on a concession that upon lodging the application for the visa, the applicants’ insurance ceased (see Lumbini at [9]). The Court then considered whether the Tribunal had any residual discretion and held there was none. The Court held that the findings made by the Tribunal were open to it and for the reasons it gave. The facts in that case can also be distinguished from the facts and evidence here. It is to be noted that the delegate in Lumbini sought evidence of insurance cover before making a decision and was not provided with evidence which was available to the applicants at the time of the request.
The Court has also considered the decision of Judge Burchardt in Nguyen which was referred to by the Tribunal at [30] of the Decision (CB 102 [30]). In that case, Judge Burchardt considered the meaning of the words “accompanied by” in the context of cl 485.223 of Sch 2 of the Regulations. His Honour referred to several authorities where the words “accompanied by” have been considered and held that the words should not be considered literally, but with flexibility. The cases considered included Anand, the Full Court of the Federal Court in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96 (per Wilcox and O’Loughlin JJ), Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 239, 242 and 243 per Spender J and Gulati & Anor v Minister for Immigration [2012] FMCA 491 at [36] per Smith FM. In Ngyuen, the Court considered the statutory text of cl 485.223 of Sch 2 of the Regulations and held that the Tribunal did not err in finding that evidence submitted by the applicant one month after the application did not “accompany” the application, because it was open to the Tribunal on the facts of that case. His Honour endorsed the remarks of Katzman J in Anand and the reasoning of the High Court in Berenguel that there should be flexibility in the application of the text used.
JURISDICTIONAL ERRORS
“Jurisdictional error on the part of a statutory decision-maker in making a decision may include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying the wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness” (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [3]).
In this case, the Tribunal found at [21] of the Decision that “it is likely that information provided to the Department at the time of the applicant’s student visa application included evidence showing that the applicant had health insurance arrangement up until 15 March 2018, therefore covering the date of the Subclass 485 visa application” (CB 100 [21]). The Tribunal then found at [25] of the Decision that the applicant had likely, for the purpose of a previous student visa application, provided the Department with evidence of him having insurance until 15 March 2018 (CB 100 [25]). Having reached those findings, the Tribunal erred in concluding that there was no evidence that the application was “accompanied by” evidence of adequate arrangements in Australia for health insurance at that time. In the words of Tracey J in Khan, the Tribunal failed to evaluate the evidence available to it when conducting the review. Having concluded that it was likely that there was evidence provided by the applicant that accompanied the application, it was erroneous to then conclude that there was no evidence accompanying the application.
The word “evidence” in cl 485.215(1) of Sch 2 of the Regulations is not defined but it is trite to say that evidence has many forms (see Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [20]-[21] per Gummow and Hayne JJ and s 52 of the Evidence Act 1995 (Cth)). It is not limited to direct evidence and may include circumstantial and other forms of information available to the decision-maker. Sections 54, 55 and 56 of the Act all refer to the Minister acting upon “information”. The concept of information is very broad. The Tribunal was presented with a Certificate of Insurance that showed that the applicant “had” insurance for the purpose of his student visa at the time of making the application (CB 47). If it was likely that the Department held that information (as it clearly was) and the applicant revealed in his application that he held a current student visa (which he did at CB 14) that had not yet expired, then the application was accompanied by prima facie evidence (albeit circumstantial or secondary) that the applicant “had” adequate arrangements in place for health insurance. It is a primary criterion for the grant of a Subclass 500 visa that the applicant have adequate arrangements for health insurance during the period of the applicant’s intended stay in Australia (cl 500.215 of Sch 2 of the Regulations). That was information upon which the Tribunal should have been satisfied that there was compliance with cl 485.215(1) of Sch 2 of the Regulations.
In Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24; [1986] HCA 40 at 45, Mason J as he then was said:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision is made. But the principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision and implication that the decision is to be made on the basis of the most current material available to the decision-maker.
It was unfortunate that the delegate did not request further information from the applicant pursuant to s 56 of the Act before deciding to refuse to grant the visa as it was more likely than not that the applicant’s mistake in the application form would have been realised or corrected. However, the delegate did not do so. It was then for the Tribunal to “undertake a fresh consideration of the application which led to the decision under review”. The review “must be based on the evidence and arguments placed before the Tribunal and any other relevant information which the Tribunal itself obtains” (see Li at [10] per French CJ). The Tribunal must consider the application afresh based on all of the available information.
The Tribunal also erred by taking into consideration an irrelevant consideration. At [29] and [30] of the Decision, the Tribunal found that the applicant did not provide evidence of having adequate insurance arrangements until 5 February 2019 and that the information did not “accompany” the application (CB 102 [29]-[30]). The preface to subclause 485.215(1) of the Regulation is that “When the application is made” it is to be accompanied by evidence that the applicant had adequate arrangements for health insurance (emphasis added). The words “and/ if so” do not appear after cl 485.215(1). There is no “temporal requirement” for proof of the second limb of the test in cl 485.215(2) of Sch 2 of the Regulations. Evidence is to be provided under cl 485.215(1) that accompanies the application, but cl 485.215(2) does not contain any temporal requirement, save that the applicant must establish that he or she “has had” adequate arrangements “since the application was made”. Presumably, this must be provided before a decision on the application is made but proof of that requirement is not required to “accompany” the application and necessarily (by use of the past tense “since”) must be at some time after the application is made. In other words, proof of satisfaction of the second limb must be provided “since the time the application was made”, so it is not proof that must necessarily “accompany” the application. This construction complements the note that appears in the application form that is referred to in paragraph [6] above. It is also consistent with the statutory purpose and intent of the Regulation as identified in Nguyen and Anand. That is, that there be some proof by the applicant of adequate insurance from the time the application was made.
The fact that proof of satisfaction of the second limb of the Regulation was not provided until requested by the Tribunal in February 2018 was not to point and an irrelevant consideration. The question for the Tribunal was whether the applicant satisfied the second limb by proof of adequate arrangement “since the time the application was made”. That proof of satisfaction was available to the Tribunal and was obtained promptly by the applicant when it became apparent to him that proof would be required. It is also understandable that proof was not provided to the Tribunal until the applicant was requested to respond to the hearing invitation sent to his migration agent in January 2019 (CB 36–50). To consider that proof of satisfaction of the second limb of the Regulation was not established until February 2019 and was therefore too late, and by failing to consider as relevant that arrangements were made in May 2018 which satisfied the second limb of the Regulation, was a failure to take into account a relevant consideration and a material jurisdictional error.
This error also discloses an error by the Tribunal in the construction of cl 485.215 of Sch 2 of the Regulations. The Tribunal construed cl 485.215 as including the words “And/if” at the end of cl 485.215(1) (CB 98 [12]). Those words do not appear in the Regulation, and it was an error of law to insert them as a matter of proper construction of the statutory instrument. The Tribunal also asked itself the wrong legal question at [30] and [31] of the Decision (CB 102 [30]-[31]).
This error of construction was alluded to in Ahmed No 1 (see Ahmed No 1 at [20] per Humphreys J) but which the learned primary Judge did not resolve because it was conceded by that applicant in that case that the first limb of cl 485.215 could not, under any circumstances, be satisfied.
Here, at [27] of the Decision, the Tribunal erred in finding that there was an express requirement that evidence to satisfy cl 485.215(2) must accompany the visa application (CB 101 [27]). The Tribunal concluded that Berenguel was not relevant because it concerned the consideration of criteria 885.213 where there is no expressed requirement of evidence “accompanying” the visa application (CB 101 [27]). Berenguel was relevant to the second limb of the Regulation and the observations of the Court at [26] (per French CJ, Gummow and Crennan JJ) were apposite:
[26] Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
On the proper construction of cl 485.215 of Sch 2 of the Regulations, cl 485.215(1) was satisfied by the applicant. The Tribunal then erred in law in the interpretation of cl 485.215(2) of Sch 2 of the Regulations by inserting the words “And if so” at the end of cl 485.212(1) of Sch 2 of the Regulations (see CB 98 [11]) and [12]). The words used in cl 485.215(2) are a separate and distinct criteria that logically must be considered separately from the criteria in cl 485.215(1). Proof of the criterion in cl 485.215(2) need not “accompany” the application in a temporal sense and it would not be stretching the language so far “that it snaps” to conclude that the applicant in this case satisfied both criteria (see Anand at [28] per Katzman J: Sidhu at [28] per Hespe J).
The Tribunal erred in the Decision by failing to take into account a relevant consideration (evidence of insurance that accompanied the application), taking into account an irrelevant consideration (that proof of satisfaction of cl 485.215(2) must accompany the application and that by providing proof to the Tribunal in February 2019 in relation to both limbs the applicant did not satisfy the second criteria) and applying the wrong legal test to cl 485.215. The conclusions reached by the Tribunal at [31] and [33] of the Decision are also inconsistent and contradictory (CB 102 [31]-[33]).
The errors made are also material as required by the High Court in LPDT [9]-[10] and [32]. The Decision “realistically” could have been different, had there been no error. It is difficult to find a rational connection between the findings that it is likely that the Department held the necessary information required by the first limb of cl 485.215(1) at the time the application was made, and that the second limb required the same temporal requirement as the first limb when the second limb uses clearly different language to the first.
Upon a proper consideration of the decisions in Nguyen, Anand, Khan, Berenguel, Waensila, Lumbini, Ahmed No 1 and Ahmed, the outcome of this review by the Tribunal could realistically have been different if the errors had not occurred.
For these reasons, the Court is satisfied that ground four of the applicant’s grounds of review should be allowed. The Tribunal did fall into error in the proper construction of cls 485.215(1) and 485.215(2) and did not properly consider the cases referred to in the applicant’s submissions. There was also jurisdictional error in the general sense identified in ground six of the application for judicial review.
On behalf of the Minister, it was submitted that there was no evidence explaining why the applicant did not submit proof of health insurance cover prior to responding to the Tribunal’s request for information in February 2019. That delay was not surprising in the circumstances of this case and the reason was explained by the applicant. By the time the applicant obtained the necessary information to satisfy cl 485.215(2), the delegate’s decision had already been made and was the subject of review. The applicant was not asked for that information prior to making the delegate’s decision and nor was he given the opportunity to satisfy the first limb of cl 485.215 (or at least correct his error) before the delegate made a decision. The applicant explained that he was advised that he would be required to review the delegate’s decision in the Tribunal and he and his then agent were entitled to assume that the Tribunal would assess the evidence based on the date of compliance with the Regulation and not whether information could have been supplied before the request for information by the Tribunal. This was not a case, like Nguyen, Anand or Ahmed No 1, where there was a request for information that was not responded to before the relevant decision was made. Here, there was an error that could not be rectified by the applicant until he was before the Tribunal on review by the provision of evidence explaining that the Regulation had in fact been satisfied.
The Minister also submitted that the delegate and Tribunal have no discretion to waive compliance with cl 485.215(1) and fault is irrelevant (see Khan at [15] per Tracey J; Sidhu at [30] per Hespe J). That is so. However, as Tracey J observed in Khan at [20];
[20] Whether or not a visa application is accompanied by the necessary evidence may involve an evaluation of evidence but it does not involve the exercise of a discretion
In this case, there was evidence of compliance that the Tribunal failed to relevantly consider. Therefore, it is not necessary to invoke any concept of waiver or discretion when the matter is to be reconsidered according to law by the Tribunal.
For the sake of completeness, there was no denial of procedural fairness by the Tribunal as alleged by the applicant in ground two of the application for judicial review and the Tribunal complied with the requirements of the Act by providing the applicant with an opportunity to provide information and evidence to the Tribunal. The Tribunal also allowed further written submissions before making the Decision. It is perhaps regrettable that the delegate did not seek to clarify the applicant’s position before making the decision to refuse on this occasion. There may be no statutory requirement to do so, but for the reasons articulated by Rares J in Ahmed, much time, resources and uncertainty could be avoided by clarifying the mistake at an early stage of the application for the visa.
The Court otherwise agrees with the Minister’s submissions that grounds one seven and eight of the application for judicial review do not particularise any jurisdictional error.
The application for judicial review dated 19 March 2019 as amended will be allowed and there are no discretionary reasons why the Decision should not be quashed and a writ of mandamus issued to require the Tribunal (now by its successor, the Administrative Review Tribunal) to determine the applicant’s application for review in accordance with law.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
COSTS
The applicant has been successful, and costs should ordinarily follow the event. The Court will hear the parties on the question of costs.
ORDERS
Pursuant to r 7.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the application for judicial review in this proceeding dated 19 March 2019 is amended to seek a writ of mandamus directed to the second respondent, requiring it to determine the applicant’s application for review according to law.
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The decision of the Administrative Appeals Tribunal made 6 March 2019 be quashed.
A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review according to law.
The applicant’s costs and disbursements of and incidental to the proceeding be agreed and if not agreed, are to be fixed by the Court at a later date.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 5 February 2025
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