D'Lima v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1162
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
D’Lima v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1162
File number: MLG 1514 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 18 November 2024 Catchwords: MIGRATION – student (subclass 500) visa – review of the decision of the (then) Administrative Appeals Tribunal refusing to grant the first applicant a student visa – refusal to granting the second and third applicant visas as members of the family unit – where Tribunal found first applicant was not a genuine applicant for entry and stay as a student –– whether the purported consent for the Tribunal to determine the review without a hearing was irregular – consent procured after advice was given to the applicants by their representative that the written material would be sufficient to secure a favourable outcome – where consent given was effective – whether consent was conditional – whether Tribunal should have taken any step to correct any misconception that favourable outcome was secured – whether Tribunal’s decision affected by legal unreasonableness – application for review dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 214, 214(3)
Migration Act 1958 (Cth) ss 359A, 359C(2), 360(1), 360(2)(b), 360(2)(c), 360(3), 363A, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2
Migration Regulations 1994 (Cth) sch 2, cl 500.212
Cases cited: Hasranv Minister for Immigration and Citizenship [2010] FCAFC 40
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152
Oshlack v Richmond River Council (1998) 193 CLR 72
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 17 July 2024 Date of hearing: 4 October 2024 Place: Melbourne Counsel for the Applicants: Mr A Aleksov Solicitor for the Applicants: Clothier Anderson Immigration Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1514 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIMMARON AMANDA D'LIMA
First Applicant
DENVER EUSTACE
Second Applicant
AIDEN JOSEPH EUSTACE (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to Item 10 Sch 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, the “Administrative Review Tribunal” be substituted for “Administrative Appeals Tribunal” as the second respondent.
2.The amended application for judicial review be dismissed.
3.The first and second applicants pay the first respondent’s costs fixed in the amount of $8,371.30.
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 Gostencnik
By their application filed on 16 May 2019, the applicants seek judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) made on 26 April 2019, affirming a decision of a delegate of the (then) Minister for Immigration and Border Protection refusing to grant the first applicant a Student (Class TU) (Subclass 500) visa and refusing to grant the second and third applicants’ visas as members of the first applicant’s family unit. The application filed contained five unparticularised review grounds. By their amended application filed on 20 June 2024, the applicants abandoned the five review grounds contained in the originating application. In lieu thereof, the applicants advance only one particularised ground as follows (reproduced verbatim):
1. The decision of the Tribunal is affected by legal unreasonableness in that the Tribunal determined the review without a hearing in circumstances where the purported consent for the Tribunal to determine the review without a hearing was irregular.
Particulars
a. On 23 January 2019, the applicants through their Migration Agent lodged a submission to the Tribunal consisting, relevantly, of a covering letter and a signed Form M17.
b. The covering letter contained the submission: “Trust all the above information should suffice and justify the case being remitted. Thus, advised the client that a hearing will not be necessary, but if you have any questions or you need any further information or documentation, please do not hesitate to contact me.”
c. The enclosed signed Form M17 included question 2, in response to which a box was ticked indicating that the applicants “consent to the Tribunal deciding the review without a hearing.”
d. The purported consent was expressed to be conditional on the Tribunal:
i. accepting that the information before it would “suffice and justify the case being remitted”; and
ii. not having any questions or requiring any further information or documentation from the applicants.
e. The Tribunal proceeded to decide the application without a hearing, and stated at [5] of its decision record that “the applicants indicated their consent” and that it was “satisfied that the necessary consent has been given under s 360(2)(b) of the Act.”
f.The applicant in fact provided “consent” only on the understanding, created by the migration agent, that the applicant was certain, in a practical sense, to succeed in the review.
g. In the circumstances, it was legally unreasonable of the Tribunal not to contact the applicants or their Agent to notify that the decision was not going to be favourable without a hearing.
BACKGROUND
On 12 December 2016, the first applicant, a citizen of India, applied for a student visa with the second and third applicants applying for visas as members of the same family unit: Court Book (CB) 1-CB19. The fourth applicant was born on 13 May 2017: CB89.
The delegate refused to grant the first to third applicants visas on 23 June 2017: CB62-CB75. The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily and found that she did not satisfy the criteria in cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations). Consequently, the second and third applicants did not satisfy the criteria in cl 500.311: CB73-CB75.
On 7 July 2017, the applicants applied to the Tribunal for review, attaching a copy of the delegate’s decision: CB76-CB78. Following her birth, the fourth applicant was added to the applicants’ review application before the Tribunal: CB92-CB102.
The first applicant gave notice to the Tribunal on 11 May 2018 appointing a migration agent representative and authorised recipient: CB104. The Tribunal requested information from the applicants’ representative on 9 January 2019, demonstrating the first applicant was enrolled in a registered course of study and was a genuine applicant for entry and stay as a student by completing an online ‘Request for Student Visa Information’ form: CB106-CB109. The request for information was accompanied by a copy of Ministerial Direction No.69 given under s 499 of the Migration Act 1958 (Cth) (Act): CB110-CB113.
Between 23 and 25 January 2019, the applicants’ representative provided the Tribunal with various documents including a completed ‘Request for Student Visa Information’ form signed by the first applicant, a written submission and other supporting materials: CB115-CB238; Exhibit 2R, affidavit of Elizabeth Hsu at [3] and annexure EH1. The completed ‘Request for Student Visa Information’ form indicated that the applicants consented to the Tribunal deciding the review without a hearing: CB118.
TRIBUNAL’S DECISION
On 29 April 2019, the Tribunal notified the applicants’ representative of its decision to affirm the delegate’s decisions: CB243 and provided the representative with a copy of the Tribunal’s Statement of Reasons and Decision (Decision) dated 26 April 2019: CB246-CB254. The Tribunal’s Decision sets out some background matters and the relevant regulatory scheme pertaining to the grant of a student visa at [1]-[8]. The Tribunal notes at [5] that the applicants consented to the Tribunal deciding the review without a hearing; its satisfaction that the necessary consent had been given under s 360(2)(b) of the Act (as then in force); and, pursuant to s 360(3) (as then in force), the applicants were no longer entitled to appear before it.
The Tribunal concluded at [58] of the Decision that the first applicant was not a genuine applicant for entry and stay as a student. In doing so, the Tribunal reasoned:
(a)the first applicant and her husband had established strong personal relationships in Australia: Decision at [20]-[22]; the applicant's ties to Australia, including her family and community ties, would present a strong incentive to the applicant to remain: Decision at [51]; and considering these personal and family ties, the first applicant’s personal ties to India would not serve as a significant incentive to return to India: Decision at [49]-[50];
(b)the first applicant was well settled, well connected and had income-earning opportunities in Australia: Decision at [52];
(c)the first applicant decided to begin studying in Australia 14 days after arriving on a tourist visa:
(i)this was a short period within which to make such a significant decision considering the logistical and financial challenges, and the necessity to remain in Australia to give birth to her second child and the effect of the birth on that decision and on her study;
(ii)consequently, the Tribunal considered it was unlikely the first applicant decided to commence study after arriving. Instead, the Tribunal found the first applicant’s activities indicated a level of planning and forethought, and that her decision to come to Australia to study and give birth to her second child was planned before arrival: Decision at [24]-[36];
(d)the first applicant’s failure to return to complete a Master of Accounting which she deferred to give birth to her child; her failure to explain the reason for not resuming that study; and later returning to complete four units in a Master of Business Administration, was inconsistent with her reasons for applying for the visa - her lifelong ambition to become a professional accountant and to operate an accountancy practice in India: Decision at [37]-[43]; and
(e)the first applicant provided inconsistent statements about her future career plans in India. The first applicant’s claim that she wanted to work in her family business, or a multinational company in India, were inconsistent with that which the applicant claimed was the decisive reason behind relocating her family – the desire to become qualified to operate her own chartered accountancy business: Decision at [44]-[46].
The Tribunal consequently concluded that the second to fourth applicants were not members of the family unit of someone who met the primary criteria and affirmed the delegate’s decisions refusing to grant the first to third applicants’ student visas: Decision at [60]-[61].
CONSIDERATION
As earlier noted, the applicants’ sole ground of review contends the Tribunal’s Decision is affected by legal unreasonableness. This is because the Tribunal determined the review without a hearing in circumstances where the purported consent for the Tribunal to determine the review without a hearing was irregular. It was irregular, so called, because consent appears to have been procured after “wrongheaded” or misconceived advice was given to the applicants by their representative to the effect that the written material provided to the Tribunal would be sufficient to secure a favourable outcome in the review, and so obviating the need for a hearing.
As the High Court observed in Minister for Home Affairs v DUA16[2020] HCA 46; 271 CLR 550 at [26]:
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
(footnotes omitted)
Section 360 of the Act (as then in force) required the Tribunal to invite an applicant for review to appear before it to give evidence and present arguments relating to the decision under review, unless, relevantly, the applicant consented to the Tribunal deciding the review without the applicant appearing before it. Therefore, if an applicant gave his or her consent under s 360(2)(b), the Tribunal could make a decision without the applicant appearing before it. And the applicant was not entitled to appear before the Tribunal: s 360(3).
Section 363A of the Act (as then in force) provides that if a provision of Pt 5 states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
The interaction of s 360(1) of the Act (as then in force) with some of its exceptions and the effect of s 363A (as then in force) was considered in Hasranv Minister for Immigration and Citizenship[2010] FCAFC 40; 183 FCR 413. The Full Court in Hasran said:
25 . . . the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M.
26 As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it.
27 Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.
28 This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.
29 The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.
Although Hasran concerned a failure by an applicant to provide information by the date required pursuant to an invitation under s 359C(2) of the Act (as then in force) – one of several exceptions to the obligation in s 360(1) mentioned in s 360(2) (as then in force) – the reasoning in Hasran is also apposite when another of the exceptions in s 360(2) applies. Thus, when consent is properly given under s 360(2)(b), s 360(3) applies. That section attracts the operation of s 363A, which as the Full Court in Hasran explained, has the effect that the Tribunal does not have power to permit the applicant to appear at an oral hearing.
As earlier noted, the first applicant gave notice to the Tribunal that she appointed a migration agent to act as her representative and authorised recipient: CB104. Subsequently the Tribunal wrote to the representative inviting the first applicant to provide it with information “about the course(s) of study [the first applicant was then] undertaking and [her] entry and stay in Australia as a student”. The specific detail about the information sought was set out in a ‘Request for Student Visa Information’ form, which the first applicant was asked to complete and return: CB105-CB109.
By two emails each dated 23 January 2019: CB115, CB180, the representative sent the Tribunal several documents, including a covering letter and submission: Exhibit 2R; affidavit of Elizabeth Hsu at annexure EH1; and a signed ‘Request for Student Visa Information’ form: CB116-CB128, indicating the applicant’s consent to the Tribunal deciding the review without a hearing: CB118.
The covering letter contained, inter alia, the migration agent’s submission and a concluding paragraph as follows (reproduced verbatim):
Trust all the above information should suffice and justify the case being remitted. Thus, advised the client that a hearing will not be necessary, but if you have any questions or you need any further information or documentation, please do not hesitate to contact me.
On 27 February 2019, the representative wrote to the Tribunal in the following terms:
Dear AAT,
Re: reference: 1714565
This client is heavily pregnant and due to give birth soon. It will be great if this case is finalised as soon as possible so as to be eligible to access the student visa health cover. Unfortunately she will not be eligible to access this insurance she has been paying for, unless she holds a student visa. It is a substantial fee of AUD8000 that will have to be paid out of pocket.
Your understanding and humane approach will very much be appreciated.
The Tribunal determined the review without conducting a hearing, noting at [5] of the Decision: “the applicants indicated their consent to the Tribunal deciding the review without a hearing”; that it was “satisfied that the necessary consent has been given under s 360(2)(b) of the Act”; and “that, pursuant to s 360(3), the review applicants are no longer entitled to appear before it”.
There is no dispute that consent given under s 360(2)(b) must be informed and effective in order for the Tribunal to decide a review without being required to invite the applicant to appear before it to give evidence and make arguments. An effective consent is a necessary condition to enliven the Tribunal's power to determine the applicants’ review application without a hearing: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; 154 FCR 572 at [74].
Counsel for the applicants accepted at the hearing before me, and properly in my view, that the consent given was effective. However, while the first applicant signed a ‘Request for Student Visa Information’ form: CB116-CB128, indicating the applicants’ consent to the Tribunal deciding the review without a hearing: CB118, the applicants contend the necessary “consent” was conditional and affected by a misconception. The applicants contend the conditional consent is evident from their representative’s comment in the covering letter earlier reproduced, and that consent was given on the strength of the migration agent’s advice to the applicants that the written material would be sufficient to secure a favourable outcome.
Based on the representative’s correspondence to the Tribunal reproduced above, it appears likely that the representative formed a view that the materials provided to the Tribunal in January 2019 would be sufficient for the Tribunal to grant the applicants the visas’ sought. It is evident that advice, to that effect, was communicated by the representative to her clients. And as the representative helpfully set out in writing, it is because of this view that she advised “the client[s] that a hearing will not be necessary”.
The first applicant signed the ‘Request for Student Visa Information’ form, thus declaring that the information in the form was complete and correct and that she was authorised to sign the form on behalf of all applicants: CB128. Part of the information was the hearing information given in section 2 of the ‘Request for Student Visa Information’ form which had been marked with the applicants’ consent to the Tribunal deciding the review without a hearing: CB118. The hearing information therein contains the following:
Note: If you consent to us deciding your review without a hearing:
We will make a decision on your application based on the information and evidence before us, and you will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. This means we may either affirm or set aside the decision under review. Further information about different types of decisions and what happens once we have made our decision may be found on our website
Please provide us with all the information you would like us to consider in deciding whether you meet the criteria for a student visa. We may make our decision at any time after the period for responding to this invitation has passed.
If there is more than one review applicant, you may only consent to us deciding the review without a hearing if you have the authority of each applicant to do so.
The note above clearly explains the three-fold consequence of the applicants giving consent. First, the applicants will not be invited to appear at a hearing to give evidence and present arguments relating to the issues arising from the decision under review. Second, the Tribunal will decide the review application based on the information and evidence before it. Third, the Tribunal may either affirm or set aside the decision under review. In the circumstances, I do not accept the consent given was conditional. The document containing the consent signed by the first applicant contains no condition. The consent was given with the knowledge expressed in writing, of the three-fold consequence and importantly, that the Tribunal may either affirm or set aside the decision under review. There is also no express condition set out in the correspondence from the applicants’ representative. Only an expression of confidence that the information provided to the Tribunal was enough to succeed and on that basis the representative advised “the client” that a hearing was not necessary.
As already noted, I accept that the applicants’ consent was likely given because their representative advised them that the materials provided to the Tribunal would be sufficient to secure a favourable outcome. But there is no suggestion here that some aspect of the operation of the legislative scheme, including the procurement of the applicants’ consent, was affected by fraud or dishonesty. Rather, that which procured the applicants’ consent was overly optimistic, or perhaps even wrongheaded or negligent advice about the applicants’ prospects. But as the High Court observed in SZFDE v Minister for Immigration and Citizenship[2007] HCA 35 at [53] “there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made”.
The applicants contend that their representative’s misconception that the materials given to the Tribunal would be sufficient to ensure they succeeded was an obvious error, which had obvious and serious implications – the loss of the applicants’ right to a hearing. They contend the Tribunal was aware of, or at least on notice of, a serious irregularity arising from the representative’s wrongheaded advice to her clients to waive their right to a hearing. The applicants contend, therefore, that the implied requirement of a “legally reasonable” exercise of power called for the Tribunal to take some step to correct the misconception under which the applicants evidently laboured. They contend that the misconception could easily have been corrected by a communication from the Tribunal. The applicants could then decide whether to seek to appear before the Tribunal at a hearing to give evidence and present arguments.
Once it is accepted that the consent given was effective, there is an inherent tension between the applicants’ contention that it was legally unreasonable for the Tribunal to exercise the power to decide the review application without first taking some step to correct the misconception and the statutory scheme.
The obligation under s 360(1) of the Act requiring the Tribunal to invite the applicants to appear before it did not apply as there was effective consent: s 360(2), and as there was effective consent, para (b) of s 360(2) applied. In the result, the applicants were not entitled to appear before the Tribunal: s 360(3).
As by reason of s 360(3) of the Act, the applicants were not entitled to appear, the Tribunal was not empowered to permit the applicants to appear before it: s 363A, even if it was otherwise minded to take some step to correct the misconception under which the applicants may have laboured. Any step that the Tribunal might have taken to correct any misconception could not have resulted in the applicants’ attendance at a hearing. Given the statutory scheme, it was not unreasonable for the Tribunal to decide the review without a hearing and without taking a step to correct the misconception. Having given effective consent, the applicants could no longer MLG 1514 of 2019decide whether to appear at a hearing before the Tribunal because they had no entitlement to so do, and the Tribunal was no longer empowered to permit their appearance.
Absent a proper basis to conclude that the consent given was not effective, the Tribunal’s power to decide the review without a hearing was properly exercised. Consequently, the Tribunal’s decision is not affected by legal unreasonableness and so there is no jurisdictional error as alleged. The applicants were legally represented at the hearing before me and no other review ground was advanced. Since the Tribunal’s decision is not affected by jurisdictional error, the judicial review application as amended will be dismissed.
The first respondent sought scale costs, that is, the amount fixed by reference to Pt 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) in the event the applicants were unsuccessful. Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act)relevantly empowers the Court to award costs in all proceedings before it (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. And except as provided by the Rules or any other enactment, the award of costs is in the Court’s discretion.
In exercising the discretion conferred in s 214(3) of the FCFCOA Act, consideration must be given to whether there is a party in whose favour an award should be made and then the appropriate mechanism by which the quantum of that award should be calculated. Section 214(3) does not contain any express indication of the considerations upon which the Court is to decide which party should pay and the extent of any costs that are to be paid. The power to award costs is to be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. The discretion is unconfined save that it is to be exercised having regard to the subject matter, scope and purpose of the empowering enactment: Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] (per Gaudron and Gummow JJ).
In the instant case, the applicants did not dispute that an order for costs should be made in the first respondent's favour should they be unsuccessful, and they also sought their costs per scale in the event they succeeded in their judicial review application. Considering the history of this matter; the result; the amendment to the review grounds after the first respondent had filed written submissions; the work involved as disclosed from the filings; that the vast preponderance of the legal expenditure by the first respondent in connection with this application will have been incurred in the period following 4 January 2023; and that the third and fourth applicants are minors, the first and second applicants should pay the first respondent’s costs fixed in the amount of $8,371.30, being equivalent to the amount fixed by Sch 2 Pt 2 of the Rules for a migration proceeding which concludes at a final hearing.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 18 November 2024
SCHEDULE OF PARTIES
MLG 1514 of 2019 Applicants
Fourth Applicant:
BRIANNA MARY EUSTACE
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4
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