Dona v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1261
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dona v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1261
File number(s): MLG 485 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 28 November 2024 Catchwords: MIGRATION – application for judicial review – student visa –whether self-represented applicant was denied procedural fairness – whether failure to warn of privilege against self-incrimination – whether questions asked by the Tribunal exposed applicant to self-incrimination – whether to extend privilege against self-incrimination to a civil and administrative review proceeding – erroneous interpretation of Regulations – application dismissed. Legislation: Migration Regulations 1994 (Cth) Sch 2, part 500 Sch 2, cls 500.211, 500.212, 500.212(a), 500.218 Cases cited: Khanna v Minister for Immigration & Border Protection [2015] FCCA 1971
Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653
Menesses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638; [2019] FCAFC 190
Minister v Immigration and Border Protection v Khanna [2016] FCA 142
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (2007) 228 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Orders by Consent LLQQ v Minister for Immigration. Citizenship and Multicultural Affairs No. QUD387/2024 (18 September 2021)
Promsopa v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs [2020] FCA 1480
Pyneboard v Trade Practices Commission (1983) 152 CLR 329; [1983] HCA 9
Saini v Minister for Immigration and Border Protection [2016] FCA 858
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 29Division: Division 2 General Federal Law Number of paragraphs: 72 Date of last submission/s: 7 November 2024 Date of hearing: 18 October 2024 and 7 November 2024 Place: Melbourne Advocate for the Applicants Ms A Julian-Armitage Solicitor for the Applicants Fairfields Lawyers Counsel for the Respondents Mr A Cunynghame Solicitor for the Respondents Sparke Helmore Lawyers ORDERS
MLG 485 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NILUKA EROSHINI DOLAGE LIYANA ARACHCHIGE DONA
First Applicant
PRADEEP SANJEEWA DOLAGE
Second Applicant
SANUTHMI YEHANSA DOLAGE (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 12 February 2020 be dismissed.
4.The applicants pay the first respondent’s costs and disbursements of and incidental to the proceedings in the sum 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 CORBETT
The applicants seek judicial review of the decision of the second respondent (Tribunal) made on 16 January 2020. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse the applicants a Student (Subclass 500) visa (visa).
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R1”.
BACKGROUND
The applicants are Sri Lankan citizens. The first applicant arrived in Australia on 4 May 2009 on a TU 573 student dependent visa (CB 53).
On 12 March 2018, the first applicant applied for the visa. The application included her husband (the second applicant) and two children (the third and fourth applicant) as members of a family unit (CB 1-27). Prior to the 2018 application, the first applicant held five student visas and one graduate skill visa, making the total duration of the applicants stay in Australia on temporary resident visas, nine years (CB 53-4).
On 26 April 2018, the delegate refused to grant the visa (CB 51-62).
On 8 May 2018, the applicants lodged an application for review to the Tribunal and appointed a representative to act on their behalf (CB 63-4).
On 19 December 2019, the applicants were invited by the Tribunal to attend a hearing to give evidence and present submissions to be held on 16 January 2020 (CB 71-5). The applicants appeared at the hearing self-represented, and the first applicant gave evidence. The Tribunal affirmed the decision of the delegate not to grant the visa and gave reasons orally (CB 85-7).
On 28 April 2020, the Tribunal provided written reasons for the decision (CB 93-7) (Decision).
TRIBUNAL DECISION
The Decision was succinct. The Tribunal identified the issue to be determined namely, whether the first applicant satisfied the primary criteria set out in part 500 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 95 [6]).
The Tribunal then considered cls 500.211 to 500.218 of the Regulations and identified two criteria for determination (CB 95-6 [10]):
1.Whether the first applicant is currently enrolled in a course of study as required by clause 500.211; and
2.Whether the first applicant is a genuine applicant for entry and stay as a student in Australia as required by clause 500.212.
The Tribunal was satisfied that the first applicant was enrolled in a registered course of study and that the first applicant wished to undertake that course (CB 96 [12]-[13]). The first applicant satisfied the first criteria (CB 96 [14]).
The Tribunal then considered the second criteria as critical (CB 96 [15]). In determining whether the first applicant satisfied the second criteria, the Tribunal considered the first applicant’s intentions at the time of making the decision (CB 96 [17]). The Tribunal noted it must also have regard to the guidelines referred to in Ministerial Direction No. 69 (CB 96 [17]).
The Tribunal then recorded the first applicant’s evidence to the Tribunal at the hearing on 20 April 2020 as follows (CB 96-7 [18]-[19]):
The tribunal at the outset of this particular hearing asked the applicant what she intends to do following completion of the Diploma of Business in early 2021. She said initially that she was going to find a better job either in Australia or Sri Lanka. Upon further inquiry by the tribunal she stated that she would really prefer to find a job in Australia. In fact, she said she would prefer to find a job in Australia.
The tribunal then asked her if it was her intention to remain in Australia permanently. She answered “Yes”. She then proceeded to explain to the tribunal that she had applied for what is known as a subclass 190 visa. She explained that that is a State sponsored visa being supported by Tasmania State. She said that she lived in Tasmania and that if she was granted the visa it will give her permanent residence as well as her family.
The Tribunal then found that it was clear on the evidence of the first applicant that it is her intention to remain in Australia permanently based on her own admissions and the fact that she has applied for the subclass 190 visa, and it is her long-term aspiration to remain in Australia on a permanent basis (CB 97 [20]). The Tribunal found that the first applicant did not have an unqualified intention to remain in Australia temporarily and that it was her intention (at the time of the Tribunal hearing) to remain in Australia permanently (CB 97 [21]).
The Tribunal held that it was not satisfied that the first applicant meets the criteria for the grant of a temporary subclass student visa because it is not her intention to remain in Australia on a temporary basis as a student. Subsequently. the second, third and fourth applicants did not meet the criteria for the grant of student visas because the first applicant did not meet the primary criteria (CB 97 [22]).
PROCEEDINGS IN THIS COURT
On 12 February 2020, an application for judicial review was filed with the Court by the legal representatives for the applicants. The application identified eight grounds of review as follows (verbatim):
(1)The member of the AAT did not correctly interpret clause 500.212(a) in schedule 2 of the Migration Regulations in relation to the applicant’s educational history.
(2)The member of the AAT did not correctly interpret Ministerial Directive No. 69, “Assessing the genuine temporary entrant criterion for student and student guardian visa application”.
(3)The members’ decision was based on a number of broad conclusions not based on facts or law.
(4)The applicant stated in her application that she needs employment in the information and technology sector. The student visa sought would enable her to enhance her employment prospects.
(5)By incorrectly interpreting the relevant provisions of the Migration Act and he regulations made thereunder the second named defendant made jurisdictional errors.
(6)The applicant intends to name grounds of further jurisdictional errors after obtaining the transcript the audio recording of the hearing conducted by the second respondent.
(7)That the Respondents pay the Applicant’s costs.
(8)That the Honourable Court makes such orders as it might consider appropriate in the circumstances an application.
The application was supported by an affidavit affirmed by the first applicant on 12 February 2020. The affidavit states in paragraph [5] that further grounds of jurisdictional errors may be provided after review of the transcript of the Tribunal hearing.
On 3 June 2020, a Registrar of the Court made orders appointing the first applicant as litigation guardian for the third and fourth applicants and for the filing of any amended application with proper particulars, further evidence, supplementary court books and written submissions.
The hearing of the application for judicial review was listed before this Court on 18 October 2024.
The applicants did not file any documents in accordance with the orders of the Registrar made on 3 June 2020. However, on 16 October 2024, the applicants’ solicitor filed an affidavit sworn that day seeking that the hearing be adjourned or alternatively heard as a pre-hearing directions hearing.
Prior to the hearing on 18 October 2024, the Court erroneously sent an email to the parties on 7 October 2024 stating that the proceeding was listed for a pre-haring on 18 October 2024. The Court had previously sent a notice of listing for final hearing to the parties on 3 September 2024 and consent to the applicants’ counsel appearing at the hearing via video link on 7 October 2024.
On 18 October 2024, there was a hearing before this Court. Ms Julian-Armitage, of counsel, appeared for the applicants via video link. The Minister was represented by Mr Cunynghame, solicitor.
Ms Julian-Armitage applied for an adjournment of the hearing, noting confusion about the date for final hearing and submitted that “the matter [was] a mess”. The applicants sought an adjournment of the hearing for two months in order to file and serve further evidence, written submissions and an amended application with particulars.
The Court directed Ms Julian-Armitage to the 3 June 2020 orders that had provided the applicants with the opportunity to file and serve an amended application and further evidence. Ms Julian-Armitage submitted that the applicants’ previous barrister had passed away before being able to address the preparation of the proceeding and that the applicants required a further opportunity to put their case in order. It was submitted that the Minister would not be jeopardised or prejudiced by an adjournment.
The Court asked Ms Julian-Armitage to identify the jurisdictional error or errors of the Tribunal to be relied upon by the applicants. It was submitted that the applicants would now seek to rely on a failure by the Tribunal to accord the applicants procedural fairness by failing to warn the first applicant of the privilege against self-incrimination when giving evidence to the Tribunal about her intention to stay permanently in Australia. Ms Julian-Armitage referred to a recent decision of Justice Meagher of the Federal Court of Australia that supported that proposition. The name and citation of that decision was not then known to counsel. The applicants sought a further opportunity to consider that decision and make submissions regarding that potential error and also to file an amended application.
The application for an adjournment was opposed by the Minister noting that there had been no misunderstanding as to the listing for final hearing, that the Minister complied with pre-hearing orders, and prepared a Court Book for final hearing, together with written submissions based upon the applicants’ application. The Minister was ready to proceed. Nevertheless, no prejudice, save as to costs thrown away, could be identified if there was a short adjournment.
In the interests of justice, the adjournment was granted and the applicant was ordered to file and serve any amended application, further evidence, a list of authorities and an outline of written submissions by 25 October 2024. The Minister was ordered to file and serve any affidavit and submissions in reply by 1 November 2024 with the final hearing to resume on 7 November 2024.
On 25 October 2024, the applicants filed and served an amended application, further affidavit, list of authorities and written submissions.
On 30 October 2024, the Minister filed and served an affidavit in response to the applicants’ further materials and a further outline of written submissions.
In the amended application for judicial review. The amended grounds of review were as follows (verbatim):
1. The Tribunal denied the applicant procedural fairness.
2.1 The Tribunal denied the unrepresented first applicant procedural fairness by questioning her on matters about which ordinarily an unrepresented party could invoke the privilege against self-incrimination with out warning her contrary to law and the Tribunal’s requirement to, inter alia, conduct its matters fairly.
2.1 The failure to warn the applicant led to responses to questioning that the Tribunal member misinterpreted leading to the Tribunal determining that the applicant’s departmental decision be affirmed.
2.3 The Tribunal’s breach of procedural fairness was material and infected the Tribunal’s assessment of the applicant’s true intentions to be able to secure a better employment opportunity after completion of the course of study for which she had applied for the subject visa.
2.The Tribunal failed to correctly interpret clause 500.212(a) in Schedule 2 of the Regulations 1994 erroneously concluding that the applicant was not a “genuine Temporary entrant” based on her responses to questioning in relation to her future plans for employment either in Australia or Sri Lanka.
3.The Tribunal did not correctly interpret Ministerial Direction 69, “Assessing the genuine temporary entrant criterion for student and student guardian visa application”.
On 7 November 2024, the final hearing of the application for judicial review resumed. Ms Julian-Armitage appeared for the applicants and Mr Cunynghame appeared for the Minister.
The applicants relied on the further affidavit of the first applicant sworn on 25 October 2024 (exhibit “A1”) and the applicants’ written outline of submissions and list of authorities dated 25 October 2024.
In the affidavit sworn on 25 October 2004 the first applicant said the following:
I am the first applicant in this application.
1.As a result of my application for a subclass 500 student visa being refused by the First Respondent, I sought review of that decision to the Administrative Appeals Tribunal (AAT) as it then was.
2.On 16 January 2020, the Second Respondent heard my application for review in Melbourne. At the time we were living in Tasmania and travelled to Melbourne for the hearing.
3.Despite the fact that I had engaged the services of a Registered Migration Agent (RMA) to represent me and my family throughout the duration of the review, my RMA informed us that he never attends hearing and certainly would not be attending with us at the AAT.
4.Our RMA did not assist us with anything to do with the application for review other than complete the form that was filed at the time of the application for review.
5.At no time did our RMA tell us how the matter/hearing would be conducted, nor did he tell us, in any details, that we could be questioned on issues that could give rise to us responding in a manner that could give rise to self -incrimination. More importantly, we were not informed as to how we could handle the situation should something like this arise.
6.Consequently, we turned up at our hearing totally unprepared and unrepresented.
7.The member who conducted the hearing did not take very long to form an opinion and make his decision. In fact, the hearing has been allocated 2 hours and we were there for only 15 or so minutes which concluded with the member giving us an oral negative decision followed by a written decision some 3 months later.
8.The Tribunal questioned me as to my intentions after the completion of the course for which I was seeking the subject visa. In particular, the reason why I wanted to undertake the course I had enrolled in. I responded saying that I am qualified in the area of information technology and that the Diploma in Business which I had enrolled in and wanted to complete would improve my employment opportunities either in Sri Lanka my country of citizenship or Australia.
9.When questioned as to whether I would like to stay and work here in Australia, I responded that I would like that. I did so as I was of the view that, should a job opportunity come up with an employer or State government that would sponsor me, I would take up that opportunity.
10.At no time did I responded to any of the Tribunal's question along the vein that I would remain in Australia no matter what nor that it was my intention to remain in Australia at all costs. As I mentioned earlier, I did say to the member that I would seek a position in either country.
11.Although I have been in Australia for an extended period, I have, at all times, respected the terms and conditions of my various visas and fully complied with all the responsibilities those visas have included.
12.I am extremely grateful and fortunate to have had the advantage of an excellent education proffered here in Australia and was merely seeking to obtain an advantage over the numerous information technology jobseeker by undertaking the business course I was seeking to complete.
APPLICANTS’ SUBMISSIONS
It was submitted by the applicants that the Tribunal denied the applicants procedural fairness at the hearing. The denial of procedural fairness arose from the following circumstances (verbatim):
(a) the applicant was unrepresented at the hearing of her application;
(b) the applicant was not advised by the Second Respondent of her right to invoke the privilege against self-incrimination (there is no evidence that the applicant otherwise had knowledge of that right at the time of the hearing);
(c) the applicant was asked questions that exposed her to self-incrimination and, consequently, the privilege would have entitled the applicant to refuse to answer those questions;
(d) in the face of that questioning, the applicant did not invoke the privilege and provided answers; and
(e) evidence given by the applicant in response to the questioning was ultimately relied upon by the Second Respondent in deciding the application.
In relation to points (b), (c), (d) and (e) above, counsel for the applicants placed reliance on orders made by consent on 18 September 2024 in a Federal Court of Australia proceeding LLQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor. No case citation was provided but a copy of the consent order was reproduced in the applicants list of authorities (see Orders by Consent LLQQ v Minister for Immigration. Citizenship and Multicultural Affairs No. QUD387/2024 (18 September 2021) (LLQQ)). That order, noted in orders made by Justice Meagher, a concession by the Minister in that case that:
…the Second Respondent made a jurisdictional error by denying the Applicant procedural fairness at the hearing of his application for merits review. That denial of procedural fairness arose from the following circumstances:
(a) the Applicant was unrepresented at a hearing of his application;
(b)the Applicant was not advised by the Second Respondent of his right to invoke the privilege against self-incrimination (and there is no evidence that the Applicant otherwise had knowledge of that right at the time of the hearing);
(c)the Applicant was asked questions that exposed him to self-incrimination and, consequently, the privilege would have entitled the Applicant to refuse to answer those questions;
(d)in the face of that questioning, the Applicant did not invoke the privilege and provided answers; and
(e)evidence given by the Applicant in response to the questioning was ultimately relied upon by the Second Respondent in deciding the application.
It was submitted that it logically follows that a similar concession in the present case would be the correct course of action without the need to take this matter further.
In oral submissions, Ms Julian-Armitage further submitted that it was appropriate to extend the privilege against self-incrimination to a civil and administrative review proceeding to preserve the first applicant’s “dignity” as a litigant in person who did not understand her rights and the procedures of the Tribunal. From this submission, the Court has inferred that the applicants’ case is that it was procedurally unfair for the Tribunal to rely on the first applicant’s evidence, in circumstances where she was unrepresented and not warned that she need not answer the Tribunal’s questions if they may tend to be detrimental to, or embarrassing to her application for the visa. No authority was cited for that proposition. However, reliance was placed on paragraph [4] of the first applicant’s affidavit sworn on 25 October 2024, where she asserted that her registered migration agent “did not assist us with anything to do with the application for review other than complete the form that was filed at the time of the application for review”.
In relation to amended grounds two and three of the amended application, the applicants submitted that the Tribunal erred in finding that because the first applicant wished to ultimately settle in Australia on a long -term basis, if she was presented with the opportunity, the Tribunal wrongly inferred that the first applicant did not intend to genuinely stay in Australia temporarily. Reliance was placed on paragraph [10] of the first applicant’s affidavit and the absence of evidence of any breach of the applicants’ previous student and skilled graduate visas.
Ms Julian-Armitage referred to the decision at first instance of Khanna v Minister for Immigration & Border Protection [2015] FCCA 1971 at [25]–[28] (Khanna) per Judge Manousaridis. In particular, paragraph [27] where his Honour said that it is necessary to:
“recognise that the fulfilment of such a person’s intention to reside permanently in Australia is conditional; it is conditional on the person later applying for and being granted a permanent residence visa, or being granted a temporary visa which could lead to the person being granted a permanent residence visa”.
In that case, his Honour held that the Tribunal erred when finding that an intention to reside permanently in Australia on a different visa, does not imply that the applicant does not have an intention genuinely to stay temporarily on a student visa. His Honoured found that the Tribunal relied on an erroneous assumption that if the applicant’s wish was to settle in Australia in the long term, if given the opportunity, the applicant did not have an intention genuinely to stay in Australia temporarily (Khanna at [32]–[33] per Judge Manousaridis). The application for judicial review was allowed and the proceeding was remitted to the Tribunal to de determined according to law.
It was submitted that the first applicant’s stated intention to remain permanently in Australia did not mean that the applicants would seek to remain permanently, if a student visa was granted or that the applicants would remain in Australia unlawfully. It was open to the Tribunal as an inquisitorial body to question the first applicant in respect to whether they, [the applicants], would leave the country at the conclusion of the student visa and apply for another visa from their home country. It was submitted that the Tribunal erred when interpreting cl 500.212 of the Regulations and also denied the applicants procedural fairness by persisting with questioning, without the provision of a warning as to the privilege against self-incrimination.
The Court expressed its concern to counsel for the applicants about the discrepancy between the first applicant’s evidence at paragraphs [9] and [10] of her affidavit sworn 25 October 2024 and the record of her evidence in the Decision (CB 96 [18]-[19]). The Court noted that there was no transcript of the hearing produced by the applicants to assist in resolving the discrepancy or to verify the applicant’s assertions. Counsel for the applicants submitted that she thought there was a transcript in the Court Book but may have been mistaken. Counsel then offered to obtain instructions as to the production of a transcript by the applicants. The Court invited the Minister to make submissions before ruling on that request.
MINISTER’S SUBMISSIONS
The Minister relied on the respondents’ outline of written submissions and list of authorities filed 4 October 2024. The Court Book prepared on behalf of the respondents was tendered and marked exhibit “R1”. The Minister also relied on an affidavit of Adam Cunynghame affirmed 30 October 2024 which was tendered and marked exhibit “R2”.
The affidavit (R2) deposed to matters arising from the amended application and submissions of the applicants filed 25 October 2024. In particular to the reference to the consent order in LLQQ. Annexed to the affidavit was a copy of the application filed in the Federal Court of Australia in that proceeding and a copy of the decision of the Tribunal. It revealed that the Tribunal cancelled the applicant’s bridging visa on character grounds due to a substantial criminal record. In that case, the applicant was unrepresented at the hearing before the Tribunal and was asked questions by the member about his offending, dealings with police and dealings with prison officers. The answers to which were likely to expose the applicant to criminal penalties. The Tribunal also made adverse findings as to the credibility of the applicant and found that the applicant lied to police. The Tribunal also made findings about the applicant’s history of criminality, poor character and substance abuse. Mr Cunynghame submitted that the circumstances in that case were quite different to this case.
In relation to the absence of a transcript of the hearing before the Tribunal, Mr Cunynghame confirmed that no transcript had been produced by the applicants or reproduced in the Court Book. On behalf of the Minister, it was submitted that the Decision was a contemporaneous and unbiased record of the first applicant’s evidence, that would be more reliable than the first applicant’s recollection reproduced in her affidavit sworn 25 October 2024, more than four years after the event. It was also submitted that in paragraphs [9] and [10] of the first applicant’s affidavit, the first applicant did not deny that the first applicant said “yes” to the Tribunal’s question as to her intention to stay permanently. Instead her evidence was that she did not say to the Tribunal that it was her intention to remain in Australia “at all costs”. Mr Cunynghame conceded that the Decision did not record that the first applicant said those words, so there was no conflict in the recording of the evidence in that regard. The member did not find in the Decision that the applicant intended to stay in Australia “at all costs”. It was submitted that the applicants bear the onus of proof in establishing error and there was no evidence to support a ground of review that the Tribunal erred in relying on an erroneous recording of the evidence. Further, no ground of that kind was raised in the amended application.
In relation to the alleged denial of procedural fairness, Mr Cunynghame submitted that the privilege against self-incrimination did not permit the first applicant to refuse to answer questions from the Tribunal that may be against self-interest or unhelpful to her case. The privilege allows litigants and witnesses protection from giving evidence that may expose that person to civil penalty or criminal prosecution (see Menesses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638; [2019] FCAFC 190 at [85]). It is not a privilege against answering questions that might suggest that the first applicant did not meet the criteria for the visa. The Tribunal simply asked the first applicant a question the answer to which might be relied on to decide the visa application or application for review adversely.
Furthermore, it was submitted that the case of LLQQ was distinguishable, and no jurisdictional error has been demonstrated for a denial of procedural fairness as alleged.
In relation to grounds two and three of the amended application for judicial review, the Minister submitted that the applicants were inviting this Court to engage in impermissible merits review, based on disagreement with the Tribunal’s findings (cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). It was submitted that the first applicant’s evidence that she wanted to secure employment yet had not done so in Australia, did not prevent the Tribunal from relying on the first applicant’s evidence that she intended to remain in Australia permanently. There was nothing tentative or conditional about that evidence or the first applicant’s stated intention. Therefore, it was open to the Tribunal to find that the first applicant did not meet the primary criteria in cl 500.212 of the Regulations.
Mr Cunynghame referred to the decision of Justice Logan in Saini v Minister for Immigration and Border Protection [2016] FCA 858 at [33] (Saini), in which his Honour disagreed with the views expressed by Judge Manousaridis in Khanna in the passages relied on by the applicants. In this case it was open to the Tribunal to conclude that the first applicant did not intend to remain temporarily in Australia and there was no error in doing so. It was for the Tribunal to give weight to the first applicant’s evidence and not for this Court to reassess the weight given to the evidence before the Tribunal (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]).
SUBMISSIONS IN REPLY
Ms Julian-Armitage joined issue with the submission that the Decision was contemporaneous with the evidence given by the first applicant to the Tribunal. It was submitted that there was a delay between the date of the hearing before the Tribunal on 16 January 2020 and the written reasons on 28 April 2020, hence the Decision was not contemporaneous. Ms Julian-Armitage offered to make available to the Court a recording of the hearing before the Tribunal to assist in clarifying any discrepancy in the evidence, although counsel had not listened to the recording. That course was opposed by the Minister who submitted that it was now too late to rely on the recording, a further indulgence would prejudice the Minister and delay the final resolution of the application. In the circumstances and given the previous opportunities given to the applicants to place materials before the Court, leave to rely on the recording was refused.
CONSIDERATION
In the relatively recent decision of Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653 at [46] (Lucas), Justice Meagher of the Federal Court of Australia considered whether the applicant in that case was denied procedural fairness by the Tribunal when self-represented and not warned of his right to privilege against self-incrimination.
Her Honour at [46], referred to a decision of the then Chief Justice Allsop, as authority for the proposition that the Tribunal may deny procedural fairness to a self-represented party if its question “strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person” (see Promsopa v Minister for Immigration, Citizenship, Migrant services and Multicultural Affairs [2020] FCA 1480 at [37] per Allsop CJ (Promsopa)).
In Lucas, her Honour held that the Tribunal denied the applicant procedural fairness when not warning the applicant of the privilege against self-incrimination and subsequently finding that he had misled the District Court of Queensland, which was a criminal offence and exposed the applicant to criminal prosecution or civil penalty (Lucas at [51]).
In this case, the first applicant was asked the question if it was her intention to remain in Australia permanently to which she replied, “Yes” (CB 96 [16]). There was no risk of criminal prosecution or civil penalty arising from a question to that effect and the question was clearly relevant to an assessment of the primary criteria under cl 500.212 of the Regulations. The first applicant was self-represented at the hearing before the Tribunal but there was nothing in the question that implied that it would be used to draw any adverse inference or conclusion about the character of the first applicant or expose her to criminal prosecution or conviction (see Pyneboard v Trade Practices Commission (1983) 152 CLR 329; [1983] HCA 9 at [12] and [24]; Promsopa at [36] and Lucas at [51]). To the contrary, the Tribunal noted the candour with which the first applicant gave her evidence (CB 97 [21]).
In Promsopa, the applicant was asked by the Tribunal about claims made for Centrelink payments for which the applicant was not legally entitled. This exposed the applicant in that case to criminal prosecution. There is no suggestion in this case that the first applicant may be exposed to criminal or civil penalty by any answer given and no offence or civil penalty provision has been identified by the applicants to which the first applicant may be exposed.
It was submitted that the privilege against self-incrimination extends to preserve the “dignity” of a self-represented litigant before the Tribunal, but no authority for that proposition was identified by counsel for the applicants. In Promsopa, Allsop CJ said at [45]:
The Tribunal’s failure to give that warning caused Ms Promsopa not just practical, but real, injustice. The finding was material to the Tribunal’s ultimate conclusion and the evidence procured left Ms Promsopa liable to prosecution under the Code.
Here, the question asked by the Tribunal may have caused the first applicant practical prejudice but not any real injustice. The findings and ultimate conclusion of the Tribunal did not leave her liable to prosecution or penalty. It was not procedurally unfair to ask the first applicant about her actual intentions. That was a central issue to be determined by the Tribunal that it was entitled to investigate. In the circumstances, there was no denial of procedural fairness or unfairness in the questioning of the first applicant by the Tribunal or to her actual intentions. That ground of review fails.
In grounds two and three of the amended application for judicial review, the applicants contend that the Tribunal erred by failing to correctly interpret cl 500.212(a) in Sch 2 of the Regulations and failed to correctly interpret Ministerial Direction No. 69. There are no particulars given to identify those errors or why they are material.
In oral and written submissions, reference was made to the decision of Judge Manousaridis in Khanna. In that case, his Honour considered an application for judicial review of a decision of the Tribunal affirming a decision of a delegate of the Minister not to grant the applicant a student visa. The Tribunal was not satisfied that the applicant genuinely intended to stay in Australia, temporarily. The applicant gave evidence that she intended to settle in Australia in the long term if given the opportunity.
His Honour held at [27]-[29] that the key to answering the question of whether a person genuinely intends to remain temporarily in Australia is to:
“…recognise that the fulfilment of such person’s intention to reside permanently in Australia is conditional; it is conditional on the person later applying for and being granted a permanent residence visa, or being granted a temporary visa which could lead to the person being granted a permanent residence visa.
That a person’s intention to do X is conditional on the happening of some event does not necessarily prevent the person from being treated as having the intention to do X A person who conditionally intends to reside permanently in Australia, therefore, can be said to have an intention to reside permanently in Australia, whether or not the person ultimately succeeds in being granted a permanent residence visa. On its face, that would be inconsistent with an intention to stay in Australia temporarily. But there must also be considered the person’s intention if he or she is not to succeed in being granted a permanent residence visa. If the person’s intention would be to return to his or her country at the end of the 573 visa period if the person does not obtain permanent residency in Australia, or some other visa that would entitle the person to stay in Australia beyond the 573 visa period, then it could equally be said that the person intends to stay in Australia temporarily, that is, only for the 573 visa period. On this approach, a person who intends to stay permanently in Australia, if a visa to that effect is granted to him or her, but who also intends to leave Australia at the end of the 573 visa period if the person does not obtain any visa that will entitle the person to stay in Australia beyond the 573 visa period, would hold apparently inconsistent intentions.
In truth, there would be no inconsistency between these two intentions. That is so because the intentions would be directed to two mutually exclusive states of affairs. A person's intending to stay permanently in Australia, if qualified to do so, is directed to a state of affairs that assumes the person has been granted a permanent residence visa. On the other hand, a person's intention to leave Australia at the end of the 573 visa period, if no permanent residence visa or some other visa is granted to the person during that period, is directed to a different state of affairs, namely, the person's having obtained no further visa to stay in Australia beyond the 573 visa period. A person, therefore, may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of the 573 visa period if, by the end of the period, the person obtains no further visa that would permit him or her to stay in Australia beyond the 573 visa period. It follows, then, that a person who intends to stay permanently in Australia, if qualified to do so, does not by itself imply the person does not intend to stay in Australia temporarily.
His Honour found at [33] that the Tribunal erred in assuming that the applicant’s wish to settle in Australia in the long term, if given the opportunity, implied that the applicant did not have an intention genuinely to stay in Australia temporarily. This was held to be a jurisdictional error.
In Minister v Immigration and Border Protection v Khanna [2016] FCA 142 at (Khanna No 2), Justice Reeves allowed an appeal from the decision of Judge Manousaridis in Khanna. His Honour held that there was no jurisdictional error by the Tribunal and that the weight given to the evidence before the Tribunal by the Tribunal was a matter for the Tribunal (Khanna No 2 at [24]). His Honour held that there was no indication that the Tribunal asked itself the wrong question or did not apply the plain meaning of the words used in the relevant Regulation.
Khanna was also considered and viewed unfavourably by Justice Logan in Saini at [30] where his Honour held that:
…if there is a settled intention, at the time of decision, later to seek a visa that
will lead other than to temporary residence, that intention is not consistent with
an intention “genuinely to stay in Australia temporarily”. What is required is an
evaluation by the decision-maker of intention as at the time of decision.In the circumstances, I do not consider it appropriate to adopt the reasoning of Judge Manousaridis in Khanna. The uncontested evidence of the first applicant in this case is that she intended to stay in Australia permanently. There was no error in placing reliance upon that evidence.
In the present case, there is nothing to suggest in the Decision that the Tribunal asked itself the wrong question or failed to properly apply cl 500.212 of the Regulations. The Tribunal considered the evidence of the first-applicant’s intentions at the time of the decision, together with objective criteria and stated the relevant question to be determined (CB 96 [17]). That included consideration of the guidance given in Ministerial Direction No. 69. It was clearly open on the evidence of the first applicant to reach the conclusion reached by the Tribunal and it would be an impermissible transgression into the merits of the Decision to revisit the Tribunal’s reasoning in that regard (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (2007) 228 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). Grounds two and three of the amended application must also fail.
CONCLUSION
The function of this Court is to determine if the Tribunal committed a jurisdictional error. None of the three grounds relied on by the applicants disclose jurisdictional error and there is nothing illogical or irrational about the reasoning disclosed by the Decision. The amended application for judicial review filed 25 October 2024 is dismissed.
At the conclusion of submissions at the hearing before this Court the solicitor for the Minister sought an order for costs, in the event that the application for judicial review was dismissed. The Minister seeks costs and disbursements of and incidental to the application for judicial review, including costs thrown away by the adjournment of the hearing on 18 October 2024 in the sum of $8,371.30 which is the applicable scale amount and is fair and reasonable.
The solicitor for the Minister also sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs. Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 12 February 2020 is dismissed.
The applicants pay the first respondent’s costs and disbursements of and incidental to the proceedings in the sum of $8,371.30.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 28 November 2024
SCHEDULE OF PARTIES
MLG 285 of 2020 Applicants
Fourth Applicant:
SETHUM VENITHA DOLAGE
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10
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