Jorgensen v Minister for Immigration

[2019] FCCA 2715

FEDERAL CIRCUIT COURT OF AUSTRALIA

JORGENSEN v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2715

Catchwords:
MIGRATION – Application for visitor visa – Tribunal not satisfied that applicant would comply with visa conditions – immaterial finding not affecting decision of Tribunal – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch.2. cl.600.211, cl.600.612. Sch.8. cl.8101, cl.8201, cl.8503, cl.8531

Cases cited:

Hossain v Minister for Immigration (2018) 359 ALR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Applicant: ALAN BRADLEY JORGENSEN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 228 of 2019

Judgment of: Judge Egan

Hearing date: 20 September 2019

Date of Last Submission: 20 September 2019

Delivered at: Brisbane

Delivered on: 24 September 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Ms Tattersall of Sparke Helmore

Second Respondent Submitting appearance

ORDERS

1. The name of the First Respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application for review filed on 22 February 2019 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 228 of 2019

ALAN BRADLEY JORGENSEN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The visa applicant is a 38 year old female citizen of Vietnam.

2. The review applicant is a 69 year old male Australian citizen who resides in Cairns. He lives with his mother who is 90 years of age. He also has a son aged approximately 13 years who attends school in the Cairns region.

3. The review applicant met the visa applicant in August 2016 during a business trip to Vietnam. He and the visa applicant have met on at least 15 occasions on ‘business and pleasure trips’ [1] in Vietnam, Singapore, Malaysia and Bali.

   [1]        Court book page 85.

4. On 14 May 2018, the visa applicant made an application for a Visitor (Class FA) Visa. The applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

5. The criteria for a subclass 600 visa are set out in Part 600 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). Clause 600.211 requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted. Clause 600.211 provides as follows:

   Clause 600.211

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

   (c) any other relevant matter.

6. The delegate refused to grant the visa on the basis that the visa applicant did not meet the cl. 600.211 criteria. The delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose of the visa.

7. On 22 February 2019, the applicant filed an application for review of the Tribunal’s decision. The grounds of such application were as follows:

   Grounds of application

   1. The Member erred in failing to apply the Department of Home Affairs fundamental reason for offering a Family Sponsored Visitors Visa in the first place, and that is to enable Australian family members to be visited by overseas relatives. Here, the Applicant, a 4th generation Australian, has an overseas Partner of 2.5 years standing, with a DNA certified 4 month old child together, needs to urgently spend time with his son at an important formative period to create natural father son bonding, as well as with his partner to determine if they are truly compatible living together, with his existing family of his 13 yo son and 88 yo ill mother.

   2. That the Member erred in failing to take into account the manifestly changed circumstances from that when the Immigration officer refused this visa. The Applicant couple not only since has had a child, but it was now unconscionable, for the Applicant father, to leave his ailing 88 yo mother, which he lives with and her official carer, to go visit his partner and 4 month son in Vietnam. This error by the Member, is further magnified because of his Veteran Affairs widowed mother's 2 recent falls where she split her knee cap _in November and then in mid January fractured her right wrist. On both occasions he was present and able to get her immediately to hospital. So given no other adult lives in her Cairns home, then the only humane solution was that instead of him leaving his totally 24/7 dependent mother, to visit his Fiancé' and baby in Vietnam, that they instead, visit him in Cairns.

   3. The member erred in failing to recognize the importance of the treating hospital's letter of 17^th January 2019, where it stated that she needed to be supervised at all times when mobilized, out of bed. Veteran Affairs fought hard for her to go into a nursing home for 2 months during recovery, but she flatly refused, saving the Government $600 per day. This decision was predicated upon the Applicant staying with her and not travelling overseas to see his new family. But the Member failed to take this critical factor into account.

   4. That on the evidence the AAT Member erred when she could not have reasonably concluded that like the IMMI Officer, the Applicant would likely not comply with the terms of the 3 months Family Sponsored Visitors Visa and return to Vietnam. But she did not have to return to Vietnam at all. She only had to exit Australia at the end of the Visitor's Visa's term, if it were not extended, which likely would be to Bali which is only a 4.5 Hour flight from Cairns and costing around $200 each way and where the Applicant and her, had established Bali as their second home after nearly 10 visits there in previous 2 years.

   5. The Member erred in failing to take into the account that now with the changed circumstances with the Applicant’s 3 months old baby, who was soon to be have Australian Citizenship status by the Descent provisions, that they would not possibly contemplate violating the terms of the Visitor's Visa and overstay illegally, as that would then destroy their inevitable opportunity to stay permanently in Australia.as a family. No person surely could be that short sighted, especially when it would forever effect their new born child.

   6. The Member erred when she tried to impose her suggestion on the Visa Applicants that they best apply for a Proposed Marriage Visa, and not just a Visitor’s Visa, which suggestion implied that the Applicants were not being genuine in applying for the Visitors Visa. But if the Visa Applicants were not yet ready to lock into marriage, without first trialling the living together for3 months with this Applicants existing family, then they cannot be pushed into marriage before they are ready. Further, the member erred in failing to take into account that the Applicants were not ready to pay out perhaps $15,000 in PR Fees and Migration agent fees for a Proposed Marriage Visa. In addition, the Member failed to take into account that time was of the essence, for the Applicant father to get to know his son given at 4 months, his baby boy is growing up fast and soon his baby stage would be gone forevermore. And it was not an option to desert his quickly aging mother, to visit his new baby and Partner.

   7. The Member erred in concluding that it was an indication the Applicants would likely not comply with the Visitor's Visa conditions of leaving before Visa expired, just because the Applicant requested details of the Member's thoughts that he place a security bond and indeed questioned it's necessity, given that the enormity of his Partner 'doing a runner', thereby forfeiting her and their baby, from ever getting Permanent Residency. So the Member was not entitled to construe that in the Applicant being prudent and asking and questioning the member's view of a Bond, showed that the Applicant intended to default on the Visa, else he would have just paid the Security Bond without question. And where indeed would a fleeing lady Visitor with a. 4 month old baby, go to? Further, the Member acknowledged the Applicants were involved in a Fruit Box and Plastics importing business in Cairns, but failed to factor that in when ruling that she still was likely to abscond. And failed to take into account that the Applicant who sponsored her, would be in all sorts of trouble.

   8. The Member erred in not taking into account that of the 8.8 million Visitors Visas granted by the Respondent last year, then none had a stronger reason to visit Australia than the Applicant's partner and baby, given the Applicant could not visit them. Further, that none of those 8.8m visitors had more to lose than the Applicants, if they violated their obligation to leave Australia on time. It meant the end of them ever living in Australia and raising a new family. So for the sake of just paying a $200 air fare to Bali from Cairns, and then reapplying for a further Visa, given their child by then, has Australian Citizenship, then it is manifestly wrong to conclude that there is insufficient evidence to demonstrate· she will not breach her Visa terms ..

8. On 15 January 2019, the visa applicant and the review applicant appeared before the Administrative Appeals Tribunal (The Tribunal). They each gave evidence and presented arguments. The visa applicant appeared with the assistance of an interpreter. The review applicant was represented at the time by a registered migration agent.

9. At [12] of its reasons, the Tribunal noted that the issue in the case was whether the visa applicant genuinely intended to stay temporarily in Australia.

10. At [13] of its reasons, the Tribunal noted that the visa applicant sought the visa for the purpose of visiting her de facto partner, namely the review applicant, and his family. That was a purpose for which a visa in the Sponsored Family stream could be granted under cl. 600.231 of the Regulations.

11. At [16] and [17] of its reasons, it was noted by the Tribunal that the applicant wanted to stay in Australia for a period of up to 3 months. It also noted that she had significant ties in Australia – namely her de facto partner who was the father of her new born child.

12. At [18] of its reasons, the Tribunal noted that it must also consider whether the visa applicant intended to comply with the conditions to which the Subclass 600 visa would be subject as required by cl. 600.211(b). Those conditions, to which the visa applicant would be subject, were as set out in cl. 600.612 which provided as follows:

    Clause 600.612

    If the visa is a Subclass 600 visa in the Sponsored Family stream, conditions 8101, 8201, 8503, and 8532 must be imposed.

13. The conditions numbered 8101, 8201, 8503 and 8531 are respectively as follows:

    8101

    The holder must not engage in work in Australia.

    8201

    (1) While in Australia, the holder must not engage, for more than 3 months, in any studies or training.

    (2) However, subclause (1) does not apply to a visa mentioned in the table.

    (Table omitted)

    8503

    The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

    8531

    The holder must not remain in Australia after the end of the period of stay permitted by the visa.

14. At [19] of its reasons, the Tribunal noted that the review applicant, in his evidence presented to the Tribunal, stated that the visa applicant was involved in his business. Indeed, the heading to paragraph 2 of the review applicant’s affidavit dated 11 January 2019, [2] stated that the visa applicant was vital to the bioplastics business. At paragraph 2 of such affidavit, when discussing the visa applicant’s visa application, the review applicant said as follows:

    [2]        Court book page 86.

    Amy’s Visit to Cairns is Vital for Our Bioplastics Business, Not Just Family

    2. In April 2018, Amy and I made Application for a 3 Month Family Sponsored Visitor’s Visa for her to visit Cairns and meet my family and for the first time, see Australia. This was to give her given the chance to see the banana farms and the operation of our business in which she has a share in and let her come to understand this important industry in FN Qld and importantly, meet my family. Because we are in business together, Amy focuses on the sourcing of this new biodegradable agriculture film that we plan to replace the current undesirable PE plastic banana box liners. There are over 30 million box liner sets used annually in the Far Nth Qld banana industry. Our new film is made from cassava plants that are prolifically grown in the Vietnam and Indonesian tropical zones, and as yet have not been introduced into the fruit business here in Qld. We believe the cassava growing business in FN Qld is a natural progression once the supermarkets insist on replacing the 30 million sets PA of Plastic box liners. At nearly 40c each, this represents a very good business for us and a big step forward for the environment. I mention all this as Amy well understands the cassava market in both Vietnam and Indonesia and now needs to help me introduce and establish this exciting plastic replacement in Australia.

15. In response to the Tribunal’s question, asked of the visa applicant, if she intended to work whilst in Australia, she said that she would ‘work to keep up her contacts online’. In the light of that response, the Tribunal stated that it was concerned that the applicant would not comply with condition 8101, and not work during any period that she might be in Australia. It was considered by the Tribunal that on the evidence of both the visa applicant and the review applicant, the visa applicant’s professional skill set would be ‘portable’.

16. At [21] of its reasons, the Tribunal found that the review applicant’s hesitation to post a security bond for the visa applicant ‘was not indicative of a sponsor who had confidence the visa conditions would be complied with’. The review applicant took issue with such finding. He submitted, in relation to that finding, as follows:

    AAT erred in Concluding Me Asking about the Bond as a Sign of Doing a Runner.

    8. The AAT Member talked about what about putting up a Bond, where I said, “yes of course I would pay it, if really needed, but is that really needed given that Amy has already got 100 compelling reasons to comply with her Visa conditions?” (including not wanting to ruin her son’s chances and her own, of ever living in Australia). Amy has flown more than 15 times in our 3 years together from Vietnam to Indonesia or Malaysia or Singapore and so it’s hardly a big deal to fly out of Cairns which takes 4.5 hrs to Bali, after her 3 months is up. She can even fly to Port Moresby which takes just 1.5 Hrs, so as to comply with her Visa conditions. So the AAT Member failed to apply the over whelming evidence that she is virtually a zero chance of ‘doing a runner’. Also the AAT Member erred badly in concluding that just because I question the real necessity in lodging a bond, then that was a clear sign about Amy intending to ‘do a runner’. And how can she runaway with a 11 month old baby to care for when she is still breast feeding? Really?

    Deserve Fair Consideration Due to Services Made Beyond the Call of Duty

    9. Where would she go?? If she did ran away her whole future and her son’s would be ruined. And I would be put under the hammer “ Well Mr Jorgensen, you Sponsored her, where is she?? She will easily get her PR in due course if she wants it, because her son is an Aussie citizen soon (by descent) and especially if we get married. So clearly, only a total fool would give all that up, to run away for a week or 2, before she’s hauled in. So on the evidence the AAT Member erred badly ‘in saying there was a strong possibility she won’t want to return to Vietnam. In any case, Amy is living most of the time in Bali which is only 4.5 Hours from Cairns as its infinitely better for me to visit her there than in Ho Chi Minh.

17. The finding of the Tribunal that the visa applicant did not genuinely intend to stay temporarily in Australia for the purpose for which the visa was granted ([24] of the reasons of the Tribunal) rested mainly, however, upon its findings as set out in [22] and [23] of its reasons, which provided as follows:

    [22] The Tribunal discussed with the review applicant its concerns that the visa applicant would not return to Vietnam at the end of her stay if the visa was granted. Given the evidence both at the time of application, in the affidavits of the review applicant provided prior to hearing and the evidence given at hearing that the intention of the parties was for them to marry and then lodge an application for the visa applicant to stay in Australia permanently the Tribunal was concerned this visa was being used not for a temporary visit but as a way to bypass the waiting period of a partner visa application. The Tribunal was concerned condition 8503 would not be complied with.

    [23] The Tribunal appreciates the totally understandable wish of the review applicant for him and his partner and newborn son to be together as a family and to spend time with his mother whose health has deteriorated in recent times. This was corroborated by the evidence provided prior to hearing of her recent falls. The Tribunal further appreciates the visa applicant has not met the mother of the review applicant and that as she is nearing 90 years of age the time they as a family get to spend with her is highly valued. The Tribunal has taken this into account in making its decision.

18. The review applicant had stated in paragraph 1 of his ‘Affidavit’ dated 11 January 2019 [3] that he hoped to marry the visa applicant in late 2019. As to that, however, the review applicant made the following submissions in paragraphs 6 and 7 of his submissions handed up to the court at the hearing:

    [3]         Court book page 85.

    Officer & Member are Wrong to Impose Their Own Views about Preferring PR

    6. We are not talking about trying to sneak in a potential terrorist into our pretty safe country, we are talking about just a normal 38 harmless lady and my potential wife coming to Cairns to meet my family and live with me for 3 months on a trial basis, to see if our age difference of 30 years can still work or not. Yes, I offer her and our son a good life here, but hey, it’s not every girls desire to be married to some much older husband, right? So the “try before you buy” is a long proven bit of wisdom. So with so many proper reasons to come visit my family in Cairns, why should the AAT Member and IMMI officer refuse her this opportunity by saying effectively “na, na, na, you should be Applying for a Permanent Residency Visa, not just a $400, 3 month visa. You can’t fool us. We know all about this abuse of Visas. So best you take the punt and pay for the $15,000 PR Visa instead.

    How many People have $15,000 to Risk on a PR Visa, when Uncertainty Prevails?

    7. Not everyone has a ‘lazy’ $15,000 to $20,000 laying around to pay the Immi fees of $7,700 for the PR plus another $10,000 or so for an Immigration Lawyer’s fees. Even this moment such a fee, we do not have available to risk paying. If Amy or I, after 3 months decide we are not really suited, then paying that $15,000 has been a total waste. Most people would offer the comment if that scenario turned out, “gee, why didn’t you get her over here for 3 months to do a trial?” “I would have to say; “Sorry, the Immigration Dept would not allow that.”

1. The Court is unsure as to whether the ‘try before you buy’ proposition was one intended to operate for the benefit of the visa applicant or the review applicant. In any event, it left open, on either scenario, the real possibility of a marriage taking place if both parties were, during or after the three month visa period, mutually enamoured. The prospect of a marriage, in those circumstances, was something that the Tribunal took into account in finding that the visa applicant did not genuinely intend to stay only temporarily in Australia. The Tribunal was concerned that the issue of a visitor’s visa in the circumstances would be used as a way to “bypass the waiting period of a partner visa application.” [4]Such a finding was open to the Tribunal in the circumstances. A person does not have a genuine intention to stay temporarily in Australia, on a visitor’s visa, if they have, as part of their intentions when entering the country, an intention to marry at a future time, and stay in Australia, either in the event of a loving relationship developing during the 3 month visa period, or for other reasons of expediency. Those circumstances were clearly in the mind of the Tribunal when it arrived at its decision.

   [4]        Paragraph [22] of Tribunal reasons.

2. When combined with the other findings about the visa applicant ‘working to keep up her contacts online’ whilst in Australia if granted a visitor’s visa, as well as the concession on the part of the review applicant that the visa applicant would be involved in his business whilst she was in Australia, the decision to refuse to grant the visa was not one which was attended with irregularity or illogicality.

3. To the extent that the Tribunal may have erroneously found that the review applicant’s reluctance to post a bond was not indicative of a sponsor who had confidence that the visa conditions would not be complied with (there was evidence that the visa applicant had complied with all visa requirements when entering and leaving a number of other countries on a regular basis), such finding was immaterial in circumstances where the Tribunal had otherwise properly considered the claims of the applicant, and had found that visa conditions would otherwise be unlikely to be complied with. In Hossain v Minister for Immigration (2018) 359 ALR 1, Edelman J, when discussing whether an error on the part of a Tribunal was jurisdictional or not, said at [40] and [72] as follows:

   [40] With respect, however, I wish to observe that there may be a number of circumstances in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome. Edelman J has referred to one such circumstance:  where respect for the dignity of the individual may mean that a denial of procedural fairness should be regarded as a jurisdictional error regardless of the effect it may have had on the result reached by the decision maker. Another such circumstance is where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses himself or herself to the wrong criterion. In such a case, the decision maker's error will be a jurisdictional error – a failure to exercise the jurisdiction of deciding the question according to the applicable criterion – regardless of whether one can say that, if properly directed and having determined the application by reference to the correct criterion, the decision maker would have been bound to make the same decision.

   …

   [72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.

4. If there was an error on the part of the Tribunal on the bond issue, such issue in the Court’s view was not jurisdictional in nature in the light of other compelling reasons for the Tribunal having arrived at its decision. It was not a finding that infected the final decision of the Tribunal with jurisdictional error in the circumstances.

5. As to Ground 1 of the application for review, the applicant’s complaint was that the Tribunal failed to consider that the purpose of the visa was to “enable Australian family members to be visited by overseas relatives”.

6. However, the Tribunal did consider such matter at [13] and at [23]-[24] of its reasons. Otherwise, a complaint that the Tribunal failed to afford sufficient weight to such consideration was a complaint about the finding of the Tribunal, and the complaint was one which went to factual matters about which the Court was not entitled to inquire, any such inquiry constituting an impermissible merits review of such finding.

7. As to Ground 2 of the application for review, the applicant alleges that the Tribunal failed to take into account matters relating to the newborn child’s existence, as well as the ill health of the review applicant’s mother – each said to be a basis for the granting of the visa. However, the Tribunal took each in account. It noted photographs of the newborn child and a report relating to the review applicant’s mother’s ill health ([11] of Tribunal reasons), the significant ties that the visa applicant had to Australia ([17] of Tribunal reasons), and the family circumstances of the review applicant in particular ([23]-[24] of Tribunal reasons). The same considerations relating to questions of weight apply in relation to this ground as they did in relation to Ground 1.

8. As to Ground 3 of the application for review, this ground again relates to the ill health of the review applicant’s mother, and the assertion that the Tribunal failed to have due regard to the contents of a letter from the Cairns and Hinterland Hospital and Health Service dated 17 January 2019 [5] which recorded the views of a physiotherapist and an occupational therapist. The Tribunal specifically made reference to such letter in [11] of its reasons. The Tribunal also had specific regard to the review applicant’s mother’s health at [24] of its reasons. As to weight, the same considerations apply as in relation to the previous grounds.

   [5]        Court book page 127.

9. As to Ground 4 of the application for review, this complaint about not complying with the visitor’s visa in terms of returning to Vietnam at the end of the visa period has been dealt with above. Such finding was immaterial to the Tribunal’s reason for refusing to grant the visa.

10. As to Ground 5 of the application for review, this ground also relates to the Ground 4 contentions, and as such, has been dealt with in the same way as Ground 4.

11. As to Ground 6 of the application for review, the Court has already quoted extensively from the applicant’s submissions. Those submissions support the finding of the Tribunal that the visa applicant, if granted the visa, would not have had an intention to only remain temporarily in Australia. The findings of the Tribunal in relation to the circumvention of the waiting period associated with a partner visa application are apt. There is no merit to such ground.

12. As to Ground 7 of the application for review, the question of a security bond has already been dealt with above.

13. As to Ground 8 of the application for review, this ground again relates to the question of the visa applicant not returning to Vietnam at the end of the visa period in the context of the reluctance on the part of the review applicant to post a higher security bond. There was no evidence concerning the assertion that the visa applicant’s application was more meritorious than 8.8 million other visitor visas granted or applied for over the “last year” or not. The ground is incapable of proper consideration due to its lack of particularity, but insofar as it related to the merits of the decision, it seeks an impermissible merits review.

14. It cannot be said that no other rational or logical decision maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

15. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

16. Neither could it be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious enquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25]-[27] where it was said:

    [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.

17. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

18. The application for review is without merit and is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  24 September 2019