Joshi v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 767
•19 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joshi v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 767
File number(s): SYG 386 of 2021 Judgment of: JUDGE MCCABE Date of judgment: 19 May 2025 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – student visa – application dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 19 May 2025 Place: Sydney Applicants: The first and second applicants appeared in person and on behalf of the third and fourth applicants Solicitor for the First Respondent: Ms C Warren, Sparke Helmore Lawyers Second Respondent: Submitting appearance save as to costs ORDERS
SYG 386 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VASUDHA JOSHI
First Applicant
AMBER JOSHI
Second Applicant
DEMIRA JOSHI (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
19 MAY 2025
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The first and second applicants pay the first respondent’s costs in the fixed amount of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MCCABE:
Ms Vasudha Joshi is the primary applicant in this case. The secondary applicants are dependent members of her family. The outcome for the dependent family members depends on the outcome for Ms Joshi, so I will focus on her case.
Ms Joshi seeks judicial review of a decision by the Administrative Appeals Tribunal dated 11 February 2021 to affirm an earlier decision by a delegate of the minister. The delegate had refused her application for a Student (subclass 500) visa. The delegate also refused the family members visas as dependent applicants. The outcome of that decision turned on the Tribunal’s factual finding that Ms Joshi had not provided important information that went to the question of whether she and her family had genuine access to sufficient funds to meet their costs and expenses during their intended stay in Australia. The ‘genuine access to funds’ requirement is imposed under cl 500.214(3) of sch 2 to the Migration Regulations 1994 (Cth).
The Tribunal had issued the applicant with a hearing invitation on 27 January 2021 that requested:
·confirmation of her enrolment in a course of study – information which was required to calculate the financial burden that had to be met;
·information about her study history; and
·other documents that would demonstrate genuine access to sufficient funds.
A copy of the hearing invitation is reproduced in the court book at pp 72ff. The applicants told me at the hearing before me they recalled receiving the invitation, so they were on notice of its contents. The Tribunal also provided a copy of Migration (LIN 19/198: Evidence of financial capacity— Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (the financial capacity instrument) – to the applicant when it sent out the hearing invitation. A copy of this document is annexed to the affidavit of Emily Rosalind Dankworth Maker on 2 May 2025. The financial capacity instrument outlines detail the decision‑maker may require in order to make the assessment of financial capacity for the purposes of cl 500.214(3).
Section 6 of the financial capacity instrument makes clear the information must be in the form identified in s10 of the instrument. Section 6(3) says where the financial capacity is derived from the income of another person, the evidence must be in a particular form. Section 10 is prescriptive as to the form of evidence which is acceptable. Section 6 also sets out the particular details that must be assessed the decision-maker. Amongst other things, the decision-maker is required to have regard to tuition or course fees.
Ms Joshi did not supply the documents requested in the hearing invitation. The Tribunal records her saying she was not currently enrolled in a course, so there was no confirmation of enrolment and no course fees indicated. At the hearing before me, Mr Joshi said Ms Joshi had been enrolled in an Advanced Diploma of Leadership in Management that was scheduled to commence in 2020 and continue through 2022, but Ms Joshi had not pursued that course of study. He also agreed Ms Joshi did not provide a confirmation of enrolment as requested. It was also accepted there was no information going to the calculation of living costs and expenses which s 6 of the financial capacity instrument requires for the Tribunal to make its decision – and certainly no information in the form required in s 3 in relation to Mr Joshi’s income, or information in the form required in s 10.
In order to succeed in this application for judicial review, the Court must be satisfied the Tribunal’s decision is affected by material jurisdictional error. At first instance, it is the responsibility of the applicants to point out that error, or such error must be apparent on the record.
The application for judicial review filed with the Court enumerates seven grounds of review, but grounds one and seven do not disclose a valid ground of review. The remaining grounds fall into two categories:
·An allegation that the Tribunal’s decision failed to take account of relevant evidence, which amounts to an allegation that the Tribunal’s decision is unreasonable; and
·An allegation that the Tribunal denied the applicants procedural fairness.
I will deal with the procedural fairness issue first.
The Tribunal’s procedural fairness obligations are limited under Pt 5, Div 5 of the Migration Act 1958 (Cth). It is clear the primary applicant was invited to attend the hearing in a timely way: she was given 15 days’ notice. Ms Joshi was also put on notice that certain information was required, and she had the benefit of the delegate’s decision which highlighted the issue that was troubling the Tribunal. Ms Joshi attended the hearing. There does not appear to be anything unusual recorded about the Tribunal’s conduct of the hearing – apart from the fact the hearing lasted eight minutes. The Tribunal proceeded to make its decision on the question as it was effectively framed in advance of the hearing.
The fact the hearing was so short is surprising, to say the least, and it plainly led to the applicants’ belief that they were given short shrift. It is entirely understandable they should think that: their future in this country was on the line, and the apparent callousness of the Tribunal deciding that future on the strength of such a short hearing is startling. An eight-minute hearing suggests minimal engagement; I spent longer than that in my engagement with the parties as we attended to the housekeeping in these proceedings. Justice must not only be done, it must be seen to be done. When hearings are so short, there is a danger they will be regarded as perfunctory. That reflects poorly on the Tribunal’s decision-making and undermines its larger role of improving government decision-making by modelling good decision-making behaviour. I should add the fact the applicants went away from the hearing feeling understandably dissatisfied with their treatment no doubt contributed to their decision to appeal. Whatever the outcome of the appeal process, a poorly handled Tribunal hearing adds to the cost and the backlogs in the Court. Any efficiency gains that might be derived from short hearings can just add to the cost and inefficiency and backlogs overall.
Having said that, the Tribunal did manage to glean all the relevant evidence. This was not a complicated case. Once the applicant confirmed she was not currently enrolled, and once it became clear there was no further material forthcoming, the Tribunal’s conclusion followed. There is no substance to the grounds contending a want of procedural fairness.
If I am wrong about that, and the Tribunal’s short hearing was found to be wanting, I am not satisfied it was a material jurisdictional error because there is no suggestion the applicants were (or are) capable of satisfying the requirements because the primary applicant was not actively enrolled at the time.
What of the grounds contending a failure to take account of relevant information that had been provided?
Ms Joshi concedes she did not provide a confirmation of enrolment. The confirmation of enrolment was necessary under s 6 of the financial capacity instrument so the Tribunal could determine the amount of resources required. She also concedes she did not supply information in the form required in s 6(3) or s 10 of the financial capacity instrument.
The Tribunal observed there were gaps in the applicants’ evidence that were insurmountable. Its decision was reasonable notwithstanding the brevity of the hearing – indeed, it was the only outcome available on the evidence.
That means the grounds of review contending a failure to take account of relevant evidence must fail. There was no further evidence that has been identified which was available to the Tribunal that it failed to consider.
The application for judicial review must therefore be dismissed. To be clear, the application for review is also dismissed in relation to Mr Joshi and the two children since the outcome of their cases was effectively dependent on the outcome of Ms Joshi’s application.
That leaves only the question of costs. The minister has asked for an award of costs fixed in the amount of $6,500. Ms Warren, who appeared for the minister, said that amount understates the amount actually expended on the file, and is less than the amount indicated in the Court’s scale. She also said it was proportionate to the amount of work involved. Mr and Ms Joshi did not have anything to say about the award of costs beyond the fact they will experience hardship if the costs order were to be enforced. (Mr Joshi says he has recently become unemployed.) Mr Joshi also said he did not appreciate costs might be awarded; the applicants thought the Court’s processes were available to taxpayers free of charge. I pointed out the minister foreshadowed an application for costs in his response to the application for judicial review, and he identified the amount of costs he would seek in the written submissions that were filed recently.
While I acknowledge the applicants may be experiencing hardship, that goes to the question of whether the costs order should be enforced – a different question to the one I must decide. I am satisfied it is appropriate to order costs against Mr and Mrs Joshi (but not their children) in this case. Those costs should be awarded in favour of the minister in the fixed amount of $6,500 in circumstances where I am satisfied the amount is reasonable, particularly having regard to the work that appears to have been done and the amount indicated on the Court’s scale.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 26 May 2025
SCHEDULE OF PARTIES
SYG 386 of 2021 Applicants
Fourth Applicant:
RUDRANK JOSHI
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