Bui v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 719
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bui v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 719
File number: PEG 242 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 18 August 2023 Catchwords: MIGRATION – Training visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the impact of the COVID-19 pandemic on the applicant’s sponsor – whether the Tribunal’s decision was illogical or irrational – whether the conduct of the applicant’s representative amounted to a fraud on the Tribunal – whether the Tribunal erred in conducting its hearing by telephone – Ministerial intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 351, 366, 476 and Part 5
Migration Regulations 1994 (Cth), cl 407.214 in Schedule 2
Cases cited: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 710
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712
SZNNE v Minister for Immigration & Citizenship [2010] FCA 194
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 10 August 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Mickle Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 242 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HUU TAM BUI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Vietnam (Court Book (“CB”) 23-24).
On 3 November 2018, the applicant applied for a Training (Class GF) (Subclass 407) visa (the “visa”) (CB 22-34). With that visa application, the applicant provided a copy of his passport and an IELTS Test Report Form (CB 35). In his visa application, the applicant nominated a registered migration agent to act as his authorised recipient (the “representative”) (CB 25-26). He also listed “Tao Group Pty Ltd ATF Annalise Family Trust” (trading as “Tao Cafe”) (the “sponsor”) as his sponsoring employer in the nominated position of “Cook” (CB 26-27).
On 18 December 2018, the Department of Home Affairs (the “Department”) invited the applicant to “comment on information” (CB 39-42). Specifically, the Department noted that the applicant had “not been identified in an approved … nomination by [his] intended sponsor or any other sponsor” (which was a criteria for the grant of the visa). The invitation letter also noted as follows (CB 41):
In the absence of an approved nomination from your prospective sponsor, you can either:
# Provide comment on your intentions regarding your visa application (including providing evidence that you are the subject of an approved Training (subclass 407) nomination); or
# Provide a written request to withdraw your visa application if you no longer intend to continue with the application. (Note: If there are any other applicants [members of your family unit] included on your application, a written withdrawal request should be provided by each applicant. Parents or guardians of applicants under the age of 18 may provide a withdrawal request on behalf of these applicants.)
The applicant was required to respond to that invitation within 28 days (CB 41).
No response was received by or on behalf of the applicant (CB 49).
On 17 January 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 48-50). The delegate was not satisfied that the applicant met cl 407.214 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”) because he was not identified in an approved nomination (CB 49).
On 29 January 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 51-52). The applicant again appointed his representative to assist him with that review application (CB 52).
On 24 October 2022, the Tribunal invited the applicant (through his representative) to attend a hearing before it (by telephone) on 11 November 2022 (CB 66-79).
The applicant appeared at the Tribunal hearing (by telephone) on 11 November 2022. He was assisted at that hearing by a Vietnamese interpreter. His representative did not attend the Tribunal hearing (CB 85-88).
Later that day (on 11 November 2022), the Tribunal also affirmed the delegate’s decision refusing to grant the applicant the visa (CB 95-96).
On 13 December 2022, the applicant sought judicial review of the Tribunal’s decision in this Court (CB 1-7). The applicant also filed an affidavit (annexing a copy of the Tribunal’s decision and relevant notification letters) in support of his application (CB 8-12). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to first outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is two pages in length and spans four paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 17 January 2019 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
2.The visa applicant applied for the visa on 3 November 2018. The Delegate refused to grant the visa on the basis that thew Applicant did not satisfy the requirements of cl. 407.214 in Schedule 2 of the Regulations, because the Applicant did not have an approved nomination by a temporary activity sponsor or occupational trainee sponsor, The Applicant’s proposed sponsor, TAO Group Pty Ltd had applied for approval, but this was refused by a Delegate on 18 December 2018. Although the TAO Group commenced an application before this Tribunal to review the refusal of their nomination, that application for review was subsequently withdrawn, on 17 June 2022. In these circumstances the applicant does not have an approved sponsored training position, and cannot meet the requirements of cl.407.214.
3.The applicant appeared before the Tribunal on 11 November 2022 with the assistance of a Vietnamese Interpreter, yet had nothing of any consequence to say in response to cl.407.214
DECISION
4.The decision of the Delegate as made on 17 January 2019 is affirmed by the Tribunal.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 13 December 2022 contains two grounds of review, as follows:
1.The Tribunal failed to give sufficient weight to the impact of COVID-19 on the nomination company TAO Group Pty Ltd. The Tribunal failed to engage in an active intellectual process of considering the evidence before it.
2.The Tribunal made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds. Since the Tribunal failed to give sufficient weight to the impact of COVID-19 on the nomination company, the decision made by the Tribunal was so unreasonable that no reasonable person in the position of the Tribunal would have made it. It is a decision that was illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
On 7 March 2023, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 13 December 2022, a Court Book numbering 96 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 3 August 2023 and the affidavit of service of Grace Mickle (affirmed on 4 August 2023 and filed in this Court on 7 August 2023).
The applicant appeared before this Court on 10 August 2023 without legal representation. He was assisted by a Vietnamese interpreter. Ms Mickle appeared on behalf of the Minister.
The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
Adjournment request
The Court notes that on 28 July 2023, the applicant contacted the Court, via email, and requested that the Court “postpone” the hearing. The applicant’s email stated (without alteration):
I am really appreciative and hope that you can have some time to look at and understand my case. It is really bad for me and my family.
As you can see my visa application for a Training Visa was refused in 2018. The reason was my agent and employer had put me in the wrong position in the Nomination application. (We discussed clearly on the phone that my Training program is supposed to be from Cook to a Chef). It may have been their mistake.
After that, I asked the agent, they said I can do AAT and work to gain enough experience and then apply for a Temporary Skill Shortage Visa. And the Covid pandemic happened after that. I think you also understand that tough time. Until now I am still working for that Employer, they still want to do a Sponsor Visa for me because I am a good worker and I have worked for her for 5 years until now.
The requirements for a new visa is needed to get a Skill Assessment approval to apply for a Temporary Work Visa which is in progress. I got Stage 1 approval, and I applied for a Stage 2 in January. My problem is I need some more time to wait for a Technical Interview for Stage 2. But the agent said this final Stage takes a lot of time.
So I would like to request a postponement for my Hearing Court which is on 10th of August and reschedule my Hearing Court at a later time, so that I can have a chance to finish my Skill test and have an opportunity to apply for a new Visa which is good for my career and future. Because, I have not got any chance to get a new visa since I arrived in Australia.
I hope that my explanation could help you have a clear overview of my circumstances and help me in this difficult time.
I look forward to hearing from you soon.
Attached to that email was an employment reference letter from the sponsor dated 20 May 2023.
Later that day (also 28 July 2023), my chambers contacted the Minister’s representative to seek the Minister’s position in relation to the applicant’s request for the hearing to be postponed.
On 1 August 2023, the Court received an email from the Minister’s representatives which advised as follows:
The Minister opposes the applicant’s postponement request on the basis that:
•the applicant does not suggest, nor has he provided evidence, that he is unable to attend the hearing scheduled for 10 August 2023; and
•the reason for the postponement request, being that the applicant would like more time to obtain a skills assessment to apply for a temporary work visa, does not have any bearing on the issue before the Court, being whether there is any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 11 November 2022 to affirm a decision to refuse the applicant a Training (Class GF) (subclass 407) visa.
On 4 August 2023, the Court advised the parties that the matter would proceed to hearing on 10 August 2023 and explained that, if the applicant sought an adjournment, an application in a proceeding would need to be filed.
The applicant did not file a formal application for an adjournment with the Court.
At the commencement of the hearing (on 10 August 2023), the applicant was asked if he still sought an adjournment. The applicant advised that he did.
The correspondence outlined above was tendered and referenced as Exhibit 2 at that hearing.
The applicant’s adjournment “request” was denied for the reasons that follow.
The Court notes that, when determining whether or not an adjournment ought to be granted, the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for that request;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources;
(see: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
The applicant’s reason for requesting that the matter be adjourned were that he wanted to “have a chance to finish [his] Skill test and have an opportunity to apply for a new Visa”. In oral submissions before the Court, the applicant suggested that he may be eligible for a Subclass 482 visa or another similar visa.
While the Court is sympathetic to the applicant’s particular circumstances, the Court notes that the skills assessment cannot assist the applicant to meet the criteria of for the grant of the visa the subject of the review before this Court. Similarly, any new visa application cannot assist the applicant in relation to the matter before this Court.
In the circumstances, the Court determined that granting the adjournment would not be in the interests of the administration of justice and considered it appropriate to proceed with the hearing.
The applicant understood the Court’s concerns (when they were explained to him at the hearing) and, ultimately, proceeded with the hearing.
Substantive hearing
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decisions it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he did not have a chance to explain why the nomination was refused or explain about the training to be undertaken. The applicant explained that his representative had incorrectly completed paperwork (emphasising that there was a misunderstanding and the applicant was listed as “a cook”, rather than “a chef”) and the applicant believes this is the reason that the sponsorship was refused.
The applicant also explained that the Tribunal hearing was conducted by telephone and was concerned that he may not have been able to properly explain everything. Further, the applicant said that he was stressed and was trying to put everything together in a hurry.
Finally, the applicant told the Court that he trusted his agent to put the paperwork together but the agent had not “done the right thing”. The applicant explained that he thought this was why “everything was refused”.
These issues, to the extent that they address jurisdictional error, will be considered below.
CONSIDERATION
Grounds of review
Ground 1
Ground 1 provides:
1.The Tribunal failed to give sufficient weight to the impact of COVID-19 on the nomination company TAO Group Pty Ltd. The Tribunal failed to engage in an active intellectual process of considering the evidence before it.
By ground 1, the applicant claims that the Tribunal ought to have considered the impact that the COVID-19 pandemic had on the sponsor.
The Court disagrees.
Any consideration by the Tribunal in this regard could only have been undertaken in relation to the Tribunal’s review of the nomination refusal. As outlined by the Tribunal (at [2] in its decision), the sponsor had commenced an application for review with the Tribunal but that application for review was subsequently withdrawn by the sponsor on 17 June 2022.
The only question for the Tribunal to consider in relation to the application before it was whether the applicant was the subject of an approved nomination. Consideration of the impact of the COVID-19 pandemic on the sponsoring company would not have assisted the Tribunal in considering that issue as it was irrelevant in relation to the review application before it.
No jurisdictional error arises in that regard.
Ground 2
Ground 2 states:
2.The Tribunal made a jurisdictional error by engaging in a process of reasoning that was illogical, irrational and not based upon findings of fact supported by logical grounds. Since the Tribunal failed to give sufficient weight to the impact of COVID-19 on the nomination company, the decision made by the Tribunal was so unreasonable that no reasonable person in the position of the Tribunal would have made it. It is a decision that was illogical, irrational and lacking a basis in inferences of fact supported on logical grounds.
As outlined above, the sole issue for consideration by the Tribunal in this matter was whether the applicant satisfied the requirements set out in cl 407.214 in Schedule 2 of the Regulations – that is, whether the applicant was the subject of an approved nomination.
Clause 407.214 in Schedule 2 of the Regulations relevantly provides:
407.214
If the approved sponsor is not a Commonwealth agency:
(a)the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and
(b)the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and
(c)the approval of the nomination has not ceased under regulation 2.75A; and
(d) either:
(i)there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.
As set out in the Regulations, the sponsor was required to nominate a program of occupational training in relation to the applicant and that nomination had to be approved.
Here, the sponsor sought approval of the nomination in relation to the applicant. That nomination was refused by a delegate of the Minister on 18 December 2018 (CB 40-41 & 96).
While the sponsor had initially applied to the Tribunal for review of the decision refusing the nomination application, the sponsor withdrew that review application on 17 June 2022 (CB 96).
As set out above, any consideration in relation to the COVID-19 pandemic was of no consequence in the circumstances of this matter. In circumstances where there was no approved nomination in relation to the applicant, there was nothing illogical or irrational in the Tribunal in determining that the applicant did not meet the criteria for the grant of the visa. Rather, it was the only decision open to the Tribunal on the evidence before it.
No jurisdictional error arises in relation to ground 1.
Oral submissions
Conduct of the agent
The applicant told the Court that his representative had incorrectly completed the forms relating to his training and he believed this was the reason the sponsorship application had been refused. The applicant also claimed that he had trusted his representative to correctly complete all of the paperwork relevant to both his visa and the sponsorship applications but that his representative “had not done the right thing”.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]), when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act. That is, the fraud must have directly impacted the Tribunal’s decision-making process.
On the material before this Court, it cannot be said that the conduct of the applicant’s representative amounts to fraud. Further, negligence, incompetence or bad advice (while unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for negligence, incompetence or bad advice (and the Court makes no findings about the applicant’s representatives in this regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed elsewhere.
No jurisdictional error arises in this regard.
Hearing by telephone
Insofar as the applicant raises concerns about the Tribunal hearing occurring via telephone, as set out by this Court in CXD22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 710, there is nothing prohibiting the Tribunal from conducting a hearing by telephone: Brar v Minister for Immigration & Anor (No 2) (2017) 322 FLR 81 at [16]; Minister for Immigration & Border Protection v Dhillon (2014) 227 FCR 525 at [28]; SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 at [24]-[25]; MZAHK v Minister for Immigration and Border Protection [2017] FCAFC 87 at [30]; SZNNE v Minister for Immigration & Citizenship [2010] FCA 194 at [49].
Further, s 366 of the Act specifically allows for evidence to be given before the Tribunal by telephone and, relevantly, provides:
366 Oral evidence by telephone etc.
(1)For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
…
The Court notes that the Tribunal hearing in this matter was held during the COVID-19 pandemic and that the applicant was notified of the Tribunal’s arrangements during that time in its hearing invitation (dated 24 October 2022 and sent via the applicant’s representative) (CB 66-79). Relevantly, the invitation letter stated (CB 68-69):
Please see the COVID-19 Special Measures Practice Direction – Migration and Refugee Division (available at for further information and directions about the current procedures for the AAT.
That same letter advised that the applicant needed to contact the Tribunal as soon as possible if he was not available to appear on the scheduled hearing date or if he believed that he would “experience difficulty participating in the hearing as arranged” (CB 69).
The applicant also completed and returned the “Response to hearing invitation” form. In that form, the applicant answered “no” when asked “is any issue that may affect your ability … to take part in the hearing …?” and “do you believe you or another person will experience difficulty participating in the hearing or the hearing cannot be conducted as arranged in the hearing invitation?” (CB 82).
The applicant attended the Tribunal hearing as scheduled on 11 November 2022 by telephone (CB 85-88). There is no evidence before the Court to suggest that the applicant raised any concerns regarding the quality of the telephone connection or that he had any difficulties understanding the Tribunal Member.
This Court was not provided with a transcript of the Tribunal hearing and there is no evidence in the Court Book (or before the Court) that suggests that the applicant had any difficulties when appearing before the Tribunal by telephone. Nor is there any evidence before the Court to suggest that the applicant was prejudiced by attending the Tribunal hearing by telephone.
No error arises in this regard.
MINISTERIAL INTERVENTION
The applicant applied for the visa in this matter on the basis of a nomination application made by a sponsor. Unfortunately, that nomination application was not approved. Consequently, the applicant’s visa application was refused.
The applicant told the Court that he has continued to work very hard for the sponsor (after his visa had been refused) and has gained more skills and experience such that he can now apply for a new visa. The applicant believes that he is now eligible for a Subclass 482 visa (or similar) and is currently having his skills formally assessed.
While the Court is not able to assist the applicant (as no jurisdictional error arises in this matter), the Court draws the applicant’s attention to the Minister’s discretionary powers. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicant’s visa, and that decision has been upheld on review, the Minister has a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision.
CONCLUSION
The application for judicial review (filed by the applicant on 13 December 2022) has failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 18 August 2023
0
22
0