Bajracharya v Minister for Home Affairs
[2020] FCCA 2272
•19 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAJRACHARYA v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2272 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Partner visa application – application for judicial review of decision of Administrative Appeals Tribunal which affirmed a decision of the Delegate of the Minister for Immigration refusing to grant to the applicant a Partner (Residence) (Class BS) (Subclass 801) visa – Applicant claimed Tribunal did not invite him to a hearing and proceeded to make its decision without giving him an opportunity to be heard – however s.359A letter sent by Tribunal to Applicant’s representative not responded to by Applicant within time disentitling Applicant from appearing before the Tribunal at a hearing by the force and effect of s.360(3) of the Migration Act 1958 (Cth) – Tribunal found relationship upon which the Partner visa application had been made had broken down – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 359, 359AA, 359A, 359B, 359C, 360, 363A, 379A, 379G, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 Union Bank of London v Kent (1888) 39 Ch. D 238 |
| Applicant: | SWAROOP BAJRA BAJRACHARYA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 249 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H. Bhatta |
| Solicitors for the Applicant: | Residency Legal |
| Counsel for the First Respondent: | Ms A. Wong |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Insofar as is necessary grant leave to the Applicant to rely upon the Amended Application electronically lodged with the Court on 2 September 2019.
The Amended Application lodged on 2 September 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 249 of 2019
| SWAROOP BAJRA BAJRACHARYA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Nepal aged 30 years.
By Amended Application lodged with this Court on 2 September 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 8 January 2019 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 9 February 2018 refusing to grant to him a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on 15 June 2010 on a Student visa. On 25 March 2014 he was granted another Student visa.
On 2 March 2015 the Applicant applied for a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and permanent Partner visa (collectively Partner visa) through his registered migration agent, Mr Kirtu KC (first migration agent) based on his being since June 2010 in a de facto relationship with an Australian permanent resident, Ms Bibechana Rai (the sponsor), who was the sponsor for the application. He was subsequently granted a temporary Partner visa on 25 August 2016. This left the Applicant in a position of needing to satisfy the requirements for a permanent Partner visa because the grant of a Partner visa comprises a two stage process due to the force of cl.801.221(1) of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) which prescribes that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
I find relevantly at this point that on the evidence before me:
a)the first migration agent acted as the migration agent for each of the Applicant and the sponsor in relation to the application for a Partner visa up to 22 November 2017; and
b)on 22 November 2017 at 5:25pm Mr Khilendra Timsina, being a solicitor and migration agent of EP Migration Australia of 32 York St Sydney, advised the Department of the Minister (Department) that he had been appointed as the migration agent of the Applicant in relation to his application for a Partner visa (second migration agent).
On 23 November 2017 the first migration agent emailed the Department of the Minister (Department) notifying the relevant case officer on behalf of the sponsor that the relationship between the Applicant and the sponsor had ended and she withdrew her sponsorship. Her reason for doing so was provided by her answer to question 8 of her Withdrawal of a visa application of the same date, in which she stated:
Our relationship fell apart and we no longer want to continue this relationship.
Informing immigration as it is my responsibility to do so.
By letter dated 30 November 2017 sent via email to the Applicant’s second migration agent and copied at the same time to the Applicant himself, the Department invited the Applicant to comment on the information received by it that indicated that the relationship upon which the Partner visa application had been based had broken down. The Applicant did not respond to this invitation to comment.
Statutory Provisions for the Grant of the permanent Partner Visa
For the grant of the permanent Partner visa, the Applicant was required to satisfy cl.801.221 of Sch.2 to the Regulations, which stated as follows:
801.221
(1) The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:
(i) the sponsoring partner; or
(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and
(c) the applicant is the spouse or de facto partner of the sponsoring partner; and
(d) subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.
(2A) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 (Partner) visa which the Minister has decided, under section 345, 351, 417 or 501J of the Act, to grant to the applicant; and
(b) the applicant is the spouse or de facto partner of the sponsoring partner; and
(c) subject to subclauses (6A) and (7), at least 2 years have passed since the Minister made the decision mentioned in paragraph (a).
(3) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(2).
(4) An applicant meets the requirements of this subclause if the applicant is the holder of a Subclass 820 visa granted on the basis that the applicant met the requirements of subclause 820.221(3).
(5) An applicant meets the requirements of this subclause if the applicant:
(a) is the holder of a Subclass 820 visa; and
(b) would meet the requirements of subclause (2) or (2A) except that the sponsoring partner has died; and
(c) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and
(d) has developed close business, cultural or personal ties in Australia.
(6) An applicant meets the requirements of this subclause if:
(a) the applicant is the holder of a Subclass 820 visa; and
(b) the applicant would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased; and
(c) either or both of the following circumstances applies:
(i) either or both of the following:
(A) the applicant;
(B) a dependent child of the sponsoring partner or of the applicant or of both of them;
has suffered family violence committed by the sponsoring partner;
(ii) the applicant:
(A) has custody or joint custody of, or access to; or
(B) has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C) has been granted joint custody or access by a court; or
(D) has a residence order or contact order made under the Family Law Act 1975; or
(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
Note: For special provisions relating to family violence, see Division 1.5.
(6A) Paragraphs (2)(d) and (2A)(c) do not apply to an applicant who at the time of making the application was in a long‑term partner relationship with the sponsoring partner.
(7) Nothing in paragraphs (2)(d) and (2A)(c) prevents the Minister, less than 2 years after the application is made:
(a) refusing to grant a Subclass 801 visa; or
(d) approving the grant of a Subclass 801 visa to an applicant who meets the requirements of subclause (5) or (6).
(8) The applicant meets the requirements of this subclause:
(a) if the applicant held a Subclass 820 (Partner) visa that ceased on notification of a decision of the Minister to refuse a Subclass 801 visa; and
(b) if the Tribunal:
(i) has remitted that decision for reconsideration and, as a result, the Minister decides that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa; or
(ii) has determined that the applicant satisfies the criteria for the grant of a Subclass 801 visa apart from the criterion that the applicant hold a Subclass 820 visa.
(emphasis added)
Decision of Delegate
In her Decision Record the Delegate first recorded that:
You lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801 visa) on 2 March 2015, on the grounds of being in a de facto relationship with an Australian citizen, Ms Bibechana Rai (your sponsor), who lodged a sponsorship in support of the application. You were granted a subclass 820 visa on 25 August 2016.
Your sponsor formally advised the department on 23 November 2017 that she wished to withdraw their sponsorship as the relationship had broken down.
The department wrote to you and your authorised representative on 22 November 2017 (sic) by registered mail and e-mail advising you that the sponsorship had been withdrawn and provided you with an opportunity to submit additional information. The registered letter has not been returned to the department. You have not responded to date.
The Delegate then found that the Applicant did not satisfy cl.801.221(2) of the Regulations because the sponsor had withdrawn her sponsorship and that he did not satisfy any of cl.801.221(2A) – (8) and refused to grant to him a permanent Partner visa.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 26 February 2018 and gave a copy of the Decision Record of the Delegate to the Tribunal at that same time. In that application the Applicant nominated his registered migration agent as Mr Walson Mathew of Effective Processing Migration Australia Pty Ltd as his representative (third migration agent). By letter dated 27 February 2018 emailed to the third migration agent the Tribunal acknowledged lodgement of the merits review application.
On 5 December 2018 the Tribunal sent by email, to the email address of the third migration agent provided in the application for merits review, an Invitation to Comment On or Respond To Information and to Provide Information (s.359A letter), which noted the following particulars of information:
·You have made an application for a Partner visa. It is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.
·Information on the Department’s file indicates that your relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship.
The s.359A letter gave the Applicant until 19 December 2018 to provide his comments and responses to the particulars given therein. The Applicant did not respond by 19 December 2018, or seek any extension of time to respond and comment. There is no evidence suggesting that the s.359A letter was not received by the third migration agent at his given email address.
On 4 January 2019 the Applicant appointed a new registered migration agent and solicitor, Mr Bhatta, as his representative. By email dated 7 January 2019 Mr Bhatta advised the Tribunal of his appointment and attached a Form 956 to that effect.
In its Decision Record of the next day the Tribunal recorded at [3] the sending of the s.359A letter and at [4] stated as follows:
[4]The applicant has not provided her (sic) comments within the prescribed period and no extension has been requested or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.
I note that in my view [4] of the Decision Record of the Tribunal correctly stated the force and effect of s.360(3) of the Act as disentitling the Applicant from appearing before the Tribunal and s.363A as removing any power the Tribunal might otherwise have had to permit the Applicant to appear at an oral hearing before it, in accordance with the decision of the Full Court of the Federal Court of Australia in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413.
At [9] – [13] of its Decision Record the Tribunal recorded its consideration as to whether the “requirements for a spousal relationship are met?” and noted at [9] that the sponsor had on 23 November 2017 advised the Department that the relationship between the Applicant and herself had ended. The Tribunal then found at [11] and [12] as follows:
[11] There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.
[12] The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.
At [13] of its Decision Record the Tribunal found that it was not satisfied that the Applicant met any of the requirements of cl.820.221 of the Regulations and at [14] affirmed the Delegate’s decision not to grant to the Applicant a permanent Partner visa.
Events Subsequent to Tribunal Decision
Following the Tribunal’s decision on 8 January 2019, the Applicant sent an email to the Tribunal on 13 January 2019 which attached a copy of the s.359A letter and stated as follows:
My name is Swaroop Bajra Bajracharya.
I am writing in regards to the email that was sent to Mr Walsh Matthew (EFFECTIVE PROCESSING MIGRATION AUSTRALIA PTY LTD) about the decision for application review. I have attached the document that was sent in this email.
The date the email was sent was on the 5th of December and the decision was made on the 19th of December. Unfortunately I was not informed by my previous agent. Due to the lack of communication from the agent I decided to change my agent to Mr Hem Bhatta. He was the one that informed me that a decision was made on 9th of January.
I am in shock and utterly disappointed in my previous agent for overlooking such vital information. I would like you to understand the dilemma that I am in and would like to request an extension to get my things in order. Had I know that the hearing was to take place I would have provided a statement. Please allow me sometime to discuss this matter with my agent and get back to you.
By letter emailed on 14 January 2019 an officer of the Tribunal responded to the Applicant’s email in the following terms:
We received your submission dated 13 January 2019 on 13 January 2019.
The submission was forwarded to the Member and your request was carefully considered. However, the Member has decided not to reopen this case.
We made our decision in this case on 8 January 2019. Once we have made a decision under the Migration Act 1958, we have no power to take any further action on the review.
We are not in a position to assist you any further on this issue.
Grounds of Attack on Decision of Tribunal in this Court
At the hearing in this Court when Mr Bhatta appeared for the Applicant and Ms Wong appeared for the Minister, insofar as it was necessary I granted leave to the Applicant to file and rely on his Amended Application lodged with the Court on 2 September 2019. The Grounds propounded by the Applicant are as follows:
1. The Second Respondent made a jurisdictional error by denying the Applicant procedural fairness under section 359 and 359AA of the Migration Act 1958.
Particulars
The Second Respondent sent an information request to the Applicant’s agent on 5 December 2018, requesting further information in relation to the sponsoring partner. The information request was not received by Applicant nor did the Applicant’s agent communicate this information request to the Applicant. As a result no response was provided to the Second Respondent. A decision was subsequently made by the Second Respondent without a hearing and without the Applicant given an opportunity to properly respond.
2. The Tribunal acted unreasonably in engaging with s 359A notice and in proceeding to make its decision and without engaging with all the circumstances and / or misconstruing s 359A, s 360 and s 363A and s 494C of the Migration Act and thereby fell into jurisdictional error.
Particulars
(a) On 5 December 2018 the Second Respondent Tribunal emailed the Applicant’s then migration agent Effective Processing Migration Australia Pty Ltd (CB 395 - 398) only its invitation to comment pursuant to s 359A by email.
(b) The Tribunal gave 14 days to respond.
(c) The Applicant’s migration [agent] did not bring the s 359A correspondence to the Applicant’s attention.
(d) The former migration agent did not respond to the s 359A correspondence.
(e) On 7 January 2019 at 1:09am (CB 400) by email the Applicant’s new migration agent (Residency Guide) advised the Tribunal that Residency Guide was the Applicant’s new migration agent (CB 400 – 404).
(f) The Tribunal proceeded to make its decision on 08 January 2018 (CB 408-410) and proceeded to notify the Applicant (CB 407) and the Applicant’s migration agent (CB 406).
(g) The Tribunal had limited regard to and / or failed to engage with:
a. The limited time given to the Applicant to respond considering the impending Christmas holidays and the Christmas holiday break;
b. The change in migration agent of which it was on notice (as per advice given by the new agent on 7 January 2019 at 1:09 am) and prior to making its decision.
c. Consider whether the previous agent may have brought the s 359A correspondence to the attention of the new agent or the Applicant.
d. Whether sufficient time was given overall
(h) The Tribunal proceeded on the basis that assumption that it was not required to give consideration to the above considerations in application of 359A, s 360 and s 363A and s 494C of the Migration Act (CB 409; AAT at [3 – 4]) in exercise of its discretion to proceed to make the decision.
(i) A reasonable Tribunal would not arrive at the conclusion or deal with the failure to respond in the circumstances of the Applicant’s case.
(j) The Tribunal has fallen into jurisdictional error.
At the hearing in support of these Grounds Mr Bhatta relied on the affidavit of the Applicant affirmed on 30 August 2019 in which he gave evidence which may be summarised as follows:
a)unknown to the Applicant, on 12 December 2017 the second migration agent’s registration “was ceased” by the Office of the Migration Agents’ Registration Authority;
b)on 26 February 2018 the second migration agent helped the Applicant lodge his merits review application, which nominated the third migration agent as the Applicant’s migration agent (see [11] above), but the Applicant did not know and never discussed the merits review application with the third migration agent;
c)the s.359A letter dated 5 December 2018 was never brought to the Applicant’s attention by either the second or third migration agent and neither the Applicant nor Mr Bhatta were aware of that letter; and
d)if the Applicant had been made aware of the s.359A letter he “would have responded”.
In connection with this affidavit evidence of the Applicant, I note that:
a)the Applicant is hardly an innocent abroad and attained the degree of Bachelor in Information and Communication from Western Sydney University at the end of 2016, yet there is no evidence explaining and there is a degree of implausibility in the Applicant contending that he remained silent, inactive and unenquiring in connection with his review application for the period of 10 months from its lodgement on 26 February 2018 until he appointed Mr Bhatta as his new registered migration agent and solicitor on 4 January 2019 and that during this period he never spoke or sought to speak with the third migration agent; and
b)there is nothing in the evidence before me which establishes the reason or basis for the cessation of the second migration agent’s registration with the Office of the Migration Agents’ Registration Authority. In other words, there is nothing before me which indicates that his registration ceased for a benign reason such as non-renewal and lapsing, or by reason of some disciplinary sanction.
Mr Bhatta at the hearing also tendered a bundle of documents marked Exhibit C which appeared to indicate that the second migration agent did cease to be a registered migration agent on 12 December 2017 and that EP Migration Australia was a business name of Effective Processing Migration Australia Pty Ltd, and that the second and third migration agents were either directors or joint participants in the business of EP Migration Australia with another solicitor and registered migration agent, one Mr Dennis Micheal.
The core submission of Mr Bhatta in support of the Amended Application, which was consistent with [14] of the Applicant’s Outline of Submissions dated 13 September 2019 prepared by Mr Kumar of Counsel (AOS), was that the Tribunal did not invite the Applicant to a hearing and proceeded to make its decision without giving him an opportunity to be heard, and in doing so ignored the fact that Mr Bhatta had been appointed as the Applicant’s new registered migration agent, of which appointment it had been advised on 7 January 2019 (see [13] above). Mr Bhatta submitted that in such circumstances it was incumbent upon the Tribunal to make enquiry into the circumstances of the appointment of the new registered migration agent. His argument was encapsulated in the following exchange at the hearing:
MR BHATTA: It might help this court as we are dividing the facts into two central contentions. The first is [the Tribunal] making a decision a day after a new migration agent’s appointment form without considering or inquiring about it.
HIS HONOUR: How would it know? When the tribunal made this decision, how would it know that there had been some issue about the migration agents?
MR BHATTA: I will go into that detail. That’s a part of the submission I will go into, your Honour, but that’s – once a new migration agent has been appointed, would it be reasonable for the [Tribunal] to even consider why at this stage the new migration agent has been appointed and whether the applicant has any knowledge about the invitation letter that was sent to previous migration agent
HIS HONOUR: I think that’s a completely far-fetched submission, sir. We are not dealing with one – the department and – we know from the paper today that the tribunal has got 60,000 cases backlog. How can – it’s entirely unreasonable. You seem to be suggesting that because there has been a change of migration agent that someone in the tribunal should consider that maybe there’s a problem associated with the change and make inquiries of whether there was a problem. That is very far-fetched, I have to put to you, sir, if that’s what you are putting to me, and that is what you’re putting to me, isn’t it?
MR BHATTA: That is what I am putting.
(TP10.1 – 23)
At the hearing Mr Bhatta further submitted that “action and inaction of the agent has led to the case to be here today” and that such action and inaction was “not just negligent, it’s above that”. However, he did not take up the heavy burden of proving or submitting fraud on the Applicant and the Tribunal by reason of the fraud of a third party. Mr Bhatta responsibly did not submit at the hearing that either the second migration agent or third migration agent was fraudulent in any of their actions or inactions, or that any fraud resulted directly on the Tribunal in a way that stultified or disabled it from due discharge of its imperative statutory functions with respect to the conduct of the review. Nor was any such charge of fraud made in the AOS.
The state of the evidence before me, even when viewed in the Applicant’s favour, could only be said to suggest some form of negligence, carelessness or inattention (conduct on which neither the second migration agent nor third migration agent has been heard), rather than, as is required, specifying conduct which was fraudulent, how it was fraudulent and how it was acted upon: see generally the leading authority on third party fraud of SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and the recent discussion of the relevant principles in the decision of the Full Court of the Federal Court of Australia comprised of Griffiths, Mortimer and Wheelahan JJ in Minister for Home Affairs v DUA16 [2019] FCAFC 221, and in particular Griffiths J at [46].
Consideration
Ground 1
In my view the Tribunal did not deny the Applicant procedural fairness under ss.359, 359AA (which is irrelevant because it applies to information given orally at a hearing, which in this case did not take place) or 359A. The Applicant does not dispute that the third migration agent was named as his duly appointed representative in his merits review application lodged on 26 February 2018 with the help of the second migration agent, albeit that the second migration agent appears to have ceased to have been a registered migration agent on 12 December 2017, for reasons that are not in evidence.
It is not in dispute that the third migration agent remained the authorised representative of the Applicant until 7 January 2019, almost three weeks after the date for a response to the s.359A letter had passed. The validity of the s.359A letter is not in question because it complied with s.359B(1) and (2) of the Act, provided the prescribed period of 14 days for a response as required by reg.4.17 of the Regulations and was sent to the third migration agent by email in accordance with ss.379A(5) and 379G.
When the Applicant failed to respond to the s.359A letter s.359C of the Act then applied, and the Tribunal was entitled thereunder to “make a decision on the review without taking any further action to obtain the applicant’s views on the information” and ss.360 and 363A also became applicable (see [15] above).
The apparent failure on the third migration agent’s part to communicate the s.359A letter to the Applicant does not establish jurisdictional error on the part of the Tribunal and this Ground is not made out.
Ground 2
In my view this Ground also fails to establish that the Tribunal fell into jurisdictional error for the reasons which follow.
First, the Tribunal complied with its obligations under ss.359 and 359A of the Act and acted in compliance with ss.359C, 360 and 363A. The reference to s.494C in this Ground is misplaced, as this section has no application to reviews conducted under Part 5 of the Act, and no submission was made in support of the reference to s.494C, either orally at the hearing or in the AOS.
Second, the Tribunal was plainly unaware of any claimed dereliction of duty by either the second migration agent or the third migration agent, and it does not form part of the Applicant’s case that the Tribunal was aware of any such dereliction. Further, in my view the Tribunal had no reason to suspect any dereliction of duty by the third migration agent, analogously to the general rule that a party is not obliged to assume that every person with whom he or she deals is likely to be a knave: Fry LJ in Union Bank of London v Kent (1888) 39 Ch. D 238 at 248. The Tribunal was not bound or obliged to be suspicious, alarmed or concerned at Mr Bhatta being appointed as the Applicant’s new registered migration agent on 7 January 2019. The prescribed period of time to respond to the s.359A letter had expired nearly three weeks before the Applicant appointed Mr Bhatta as his migration agent. The Tribunal was not bound to enquire of Mr Bhatta whether the s.359A letter had been received by the third migration agent and brought to the attention of the Applicant. The Tribunal was not, in the circumstances, bound to ask Mr Bhatta or the Applicant why no response had been made to the s.359A letter. In fact had the Tribunal, prior to making its decision, turned its mind to the Applicant’s failure to respond to the s.359A letter it would have found such to be entirely consistent with the Applicant’s failure to respond to the Department’s letter of 30 November 2017 personally emailed to him by the Department and which invited him to comment on the same issue raised by the s.359A letter, namely that the relationship upon which the Partner visa application had been based had broken down.
Third, I reject this Ground insofar as it claims that the Christmas holiday period impacted upon the period of time given to the Applicant to respond to the s.359A letter. The period of time which the Applicant had to respond to the s.359A letter, being from 5 December 2018 to 19 December 2018, could not reasonably be said to be within any Christmas holiday period.
Fourth, the Tribunal’s decision to proceed to make a decision on the merits review application “without taking any further action to obtain the applicant’s views on the information” (see s.359C(2) of the Act) given in the s.359A letter was not in my view legally unreasonable, irrational or without an intelligible justification. It is clear from [4] of the Decision Record of the Tribunal (see [14] above) that the Tribunal was aware that it had a discretion to continue to seek further comment from the Applicant on the breakdown of his relationship with the sponsor, but in the circumstances it decided to proceed to decision without any such further steps and in my view the Tribunal was in its area of decisional freedom in coming to that view.
Accordingly, Ground 2 is not made out.
The Question of Futility
The Minister submitted that in any event it would be futile to remit the matter to the Tribunal, because of the sponsor’s withdrawal of her sponsorship of the Partner visa application and the breakdown of the relationship between the Applicant and the sponsor.
In a practical sense there is much force in that submission. The Applicant never responded to the Department’s letter of 30 November 2017 by asserting that the sponsor’s withdrawal of her sponsorship was in some way mistaken or that the relationship between them was still continuing, nor has he suggested this at any point in the proceeding.
Nevertheless, it is theoretically possible, although improbable, that on a remittal to the Tribunal the Applicant could claim to meet the requirements of cl.801.221(6) of the Regulations by claiming to have suffered family violence committed upon him by the sponsor, although not a breath of such a claim has been made hitherto. However, such a theoretical possibility was considered by Rares J in Tran v Minister for Immigration and Multicultural Affairs (2006) 154 FCR 536 to preclude a finding of futility, so I would not have declined to remit the matter back to the Tribunal on the ground of futility if I had otherwise found that the Tribunal had committed jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 August 2020
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