Kapali v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 643
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kapali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 643
File number: MLG 398 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 11 August 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the applicant was denied an opportunity to provide material in support of his application – whether the applicant was denied procedural fairness or natural justice – whether the Tribunal failed to advise the applicant of the information he was required to provide – whether the Tribunal failed to provide the applicant with additional time to produce information – whether the Tribunal erred by making an oral decision – whether the Tribunal failed to provide written reasons for its decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 359A, 359AA, 360, 368D & 476 and Division 5 of Part 5
Migration Regulations 1994 (Cth), cl 572.223 in Schedule 2
Cases cited: Abebe v The Commonwealth [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 10 August 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms A Wong Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 398 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHYAM KAPALI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.The application (as amended on 10 August 2022) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Nepal (Court Book (“CB”) 2). He first arrived in Australia in February 2009 as the holder of a student visa (CB 100).
He has since been granted two further student visas (at the subclass 572 level) and has been enrolled in 16 courses across a variety of fields (including Hospitality, Automotive Mechanical Technology, Business Management, Engineering and Building and Construction) since his arriving in Australia in 2009 (CB 100).
On 15 December 2015, the applicant applied for a further Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) (CB 1-22). That visa application included the applicant’s wife as a member of his family unit. The applicant’s wife is not a party to this proceeding and information related to the applicant’s wife will not be discussed further in this decision. Annexed to the applicant’s visa application were a variety of supporting documents (CB 23-41), including two Overseas Student Confirmation-of-Enrolment documents (“CoE”) for a Certificate IV in Engineering and a Diploma of Building and Construction (Management) (CB 26-28).
On 8 January 2016, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to provide further information (including information addressing the “genuine temporary entrant criterion” in cl 572.223(1)(a) in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”)) (CB 52-66).
On 4 February 2016, a representative from “EK Migration & Education” (the “applicant’s representative”) provided material to the Department via email in response to the Department’s request for more information (CB 73-86).
On 9 February 2016, the applicant’s representative provided additional material to the Department (again via email) (CB 87-90).
On 5 September 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 97-102). The delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily and, as such, did not meet the requirements set out in cl 572.223(1)(a) in Schedule 2 of the Regulations.
On 23 September 2016, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 103-105).
On 19 December 2017, the Tribunal invited the applicant (by email) to attend a hearing before it on 23 January 2018 (CB 116-128). Importantly, that correspondence asked that the applicant provide further material, as follows (CB 118):
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
The applicant did not respond to the hearing invitation or provide any of the requested material to the Tribunal.
On 23 January 2018, the applicant appeared before the Tribunal at the scheduled hearing (CB 133-135). He provided a completed “Student Visa – GTE Questionnaire” at that time (CB 136-141). In that form, the applicant answered “no” when asked whether he had a current CoE. He answered “N/A” in relation to questions about his current course of study and current enrolment (CB 136).
At the Tribunal hearing (on 23 January 2018), the Tribunal made an oral decision in which it affirmed the delegate’s decision refusing to grant the applicant the visa (CB 147).
On 16 February 2018, the applicant sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
On 25 July 2018, the Tribunal reduced its oral decision to a written statement of its decision and reasons (CB 150-152). A copy of those written reasons was provided to the applicant via email on 25 July 2018 (CB 148-149).
TRIBUNAL’S DECISION
The Tribunal’s written statement of decision and reasons is three pages long and spans 14 paragraphs.
The Tribunal began by identifying the visa decision under review and acknowledged that it had initially made an oral decision in the matter on 23 January 2018 (at [1]-[2]).
The Tribunal confirmed that before it was the review application made by the applicant in relation to a decision made by the delegate on 5 September 2016 refusing to grant the applicant the visa (at [3]).
The Tribunal noted that the applicant had applied for the visa on 15 December 2015 and detailed the subclasses contained within the visa class at the time of application (CB [4]).
The Tribunal then identified the basis upon which the delegate refused to grant the applicant the visa, as follows:
5.The delegate in your case refused to grant the visa on the basis that you did not satisfy the requirements of clause 572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that you were a student who intends genuinely to stay in Australia temporarily.
The Tribunal confirmed that the applicant appeared before it to give evidence and present arguments – noting that the applicant was the only person to give oral evidence at the hearing and that no interpreter was used (at [6]).
The Tribunal then clarified the issue it would address, as follows:
7.While the issue before the delegate was whether you are a genuine temporary entrant, the issue before the Tribunal now is whether at the time of this decision you meet the enrolment requirements for a student visa.
The Tribunal explained further that for most subclasses of student visa, an applicant is required (at the time of decision) to be enrolled in an approved course of study (at [8]).
The Tribunal continued:
9.On 19 December 2017, a written invitation to attend the hearing today was sent to you via your immigration agent. In that invitation you were requested to provide a copy of your current certificate of enrolment to the Tribunal at least seven days before the scheduled date of the hearing. A copy of the certificate was not provided.
10.At the hearing today, you were again requested to provide to the Tribunal a copy of your current certificate of enrolment. You did not do so. In your sworn evidence before the Tribunal, you advised that your last course of enrolment in a course of study was in 2016 in fabrication engineering, you had not been enrolled in a course of study since that time, that you were currently not enrolled in a course of study, and you did not currently hold a certificate of enrolment which, as we have discussed, is a prerequisite for the grant of a student visa.
The Tribunal outlined the applicant’s evidence before it in relation to a permanent residency application he had made (and which was being considered by the Department) but noted that, for the purpose of the application before it, the applicant “was not currently enrolled in an approved course of study” and “[did] not currently hold a certificate of enrolment” (at [11]).
The Tribunal ultimately determined as follows:
12.Accordingly, there is no evidence before me that you are now enrolled in or have a current offer of enrolment in an applicable of course of study. Therefore, the current enrolment prerequisite for all student visa subclasses is not met. Furthermore, there is no evidence that you meet the criteria for either of the remaining subclasses of TU. You are neither supported by the relevant Minister, as required by clause 576.229, nor have you made the visa application on the basis of being a student guardian.
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [13]-[14]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 16 February 2018 contains three “grounds of review”, as follows (without alteration):
1.I believe I was denied procedural fairness by the AAT as I was not given the opportunity to provide extra documents in support of my application.
2.I thus feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to provide all supporting documents on their application.
3.I also feel that the law was incorrectly applied as the AAT did not advise me properly of the things I was supposed to produce at the hearing neither was I given more time despite repeated requests.
In support of the application for judicial review, the applicant affirmed and filed an affidavit annexing the Tribunal’s notification of its oral decision. That affidavit also states as follows (without alteration):
•I was granted a student visa Subclass and I came to Australia on 8 February 2009. After my studies, I applied for a Graduate Work (class VC subclass 485) visa which was granted. I had applied for a further student visa on 15 December 2015. Unfortunately, it was refused on 7 September 2016. (Application ID1000587217, File Number: BCC2015/3906516).
•I was not satisfied with the reasoning behind the refusal and felt that my visa should not have been refused. As such, I applied for a review of my case at the AAT for review within the necessary time (My Case No. 1615565).
•After waiting for a very long time, I was finally invited to a hearing on the 23rd of January 2018.
•After the hearing, I was not given the opportunity to provide extra documents in support of my application. I also feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to provide all supporting documents on their application.
•I also feel that the law was incorrectly applied as the AAT did not advise me properly of the things I was supposed to produce at the hearing.
•I was charged such a big amount for the appeal process and I believe that I should have at least received clarification regarding the expectation of the Tribunal at the hearing. My application was refused on the spot orally and till date I have not received a full refusal record. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment. As such, I feel that the AAT had made an error in their judgement and refused my application for review. Thus, I would like to challenge the decision of the AAT as I feel it was not lawful and fair. As such, I have decided to appeal the decision at the Federal Circuit Court in the hope of getting a fair and lawful outcome so that I can get my visa as planned.
On 12 December 2018, procedural orders were made by Registrar Ryan of this Court giving the applicant an opportunity to file any amended application, evidence and written submissions. Unfortunately, no further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 16 February 2018, a Court Book numbering 152 pages (marked as Exhibit 1), written submissions filed by the Minister on 3 August 2022 and the affidavit of Ada Oi-Yee Wong affirmed and filed on 8 August 2022 (the “Wong affidavit”).
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had copies of the materials before the Court (as outlined above).
The Court noted that the application for judicial review filed by the applicant only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the applicant orally amending the application to rectify the oversight. The Court explained this issue to the applicant and made an order amending the application for judicial review to include seeking a writ of mandamus.
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained that he wanted to study to gain knowledge to assist him in his employment as a welder and that he was concerned that he had not been given an opportunity to present evidence in that (or any) regard to the Tribunal. This issue will be discussed below in relation to the applicant’s grounds of review.
CONSIDERATION
Grounds of review
The applicant’s grounds of review are not particularised. While “problematic”, this Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or to understand what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will address that error accordingly: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Grounds 1 and 2
For ease of reference, grounds 1 and 2 state:
1.I believe I was denied procedural fairness by the AAT as I was not given the opportunity to provide extra documents in support of my application.
2.I thus feel that Natural justice was not given to me as no application should be decided without allowing the applicant proper opportunity to provide all supporting documents on their application.
To the extent that the applicant suggests that he was not given an opportunity to provide material in support of his application, this fails on a factual level.
On 19 December 2017, the Tribunal invited the applicant to appear before it at a hearing scheduled to take place on 23 January 2018 to give evidence and present arguments relating to the issues in his case (CB 116-128). That invitation also explained to the applicant what he should do prior to the hearing and requested that the applicant provide documents and information to the Tribunal as follows (CB 117-118):
What you should do within 7 days of receipt of this letter
…
Please provide all documents you intend to rely on to establish that you meet the criteria for the visa. The decision made by the department to refuse to grant a visa should set out the reasons why you did not meet the criteria, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English or accompanied by a translation from a qualified translator.
Additionally, please provide this information so that a decision can be made as quickly as possible:
1.A copy of your current Certificate of Enrolment (COE) as required for the grant of a student visa.
2.Document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa.
3.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
4.An explanation of any gaps in your enrolment/s and any documentary evidence relevant to your explanation.
We will assess whether you intend genuinely to stay in Australia temporarily.
Relevant to this requirement is a direction from the Minister known as Direction No. 53. A copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine temporary entrant by referring to this Direction.
We request that the written statement and other evidence are provided to us at least 7 days before the hearing date.
This request put the applicant on notice about what information was required of him and what the Tribunal would be assessing in relation to his matter.
As outlined above, the applicant did not provide any material to the Tribunal relating to his enrolment in any course of study. Nor is there any evidence before the Court to suggest that he sought more time within which to do so or that any further documents might be forthcoming.
The applicant completed a “Student Visa – GTE Questionnaire” form on 23 January 2018 (the date of the Tribunal hearing) (CB 136-141). In that form, the applicant answered “no” when asked whether he had a current CoE and answered “N/A” when asked questions relating to his current course of study and current enrolment (CB 136).
The Court notes that, at the Tribunal hearing of the matter, the Tribunal assessed whether the applicant met the enrolment requirement for the grant of the visa. The applicant was also asked, again, to provide the Tribunal with confirmation of his enrolment in a course of study. In that regard, the Court notes that the Tribunal’s decision provides follows:
10.At the hearing today, you were again requested to provide to the Tribunal a copy of your current certificate of enrolment. You did not do so. In your sworn evidence before the Tribunal, you advised that your last course of enrolment in a course of study was in 2016 in fabrication engineering, you had not been enrolled in a course of study since that time, that you were currently not enrolled in a course of study, and you did not currently hold a certificate of enrolment which, as we have discussed, is a prerequisite for the grant of a student visa.
On the applicant’s own evidence (both orally and in the completed “Student Visa – GTE Questionnaire” form), he was not enrolled in any course of study. Indeed, his last enrolment was in 2016.
The applicant advised the Tribunal that he was seeking permanent residency through an alternate visa subclass and that the Department was still assessing his application in that regard. The Tribunal detailed that evidence as follows:
11.You advised that you had applied for a permanent residency under the appropriate visa subclass in September of 2017. You were still seeking permanent residence but a decision had not yet come down from the relevant department as to whether you would be granted that visa. But for our own purposes, you are not currently enrolled in an approved course and you do not currently hold a certificate of enrolment.
There is no evidence before the Court to suggest that the applicant sought additional time (either prior to or at the hearing) within which to provide the Tribunal with confirmation of his enrolment in any course of study or that he intended to enrol in any course of study.
The Court is satisfied that the applicant was provided with a proper opportunity to present his case and provide documents to the Tribunal in support of his application.
He chose not to do so.
No error arises in this regard.
Insofar as the applicant claims he was denied procedural fairness or natural justice, the Court disagrees.
The Tribunal’s procedural fairness obligations are set out in Division 5 of Part 5 of the Act.
The Court is satisfied that the Tribunal met those obligations in its review of this matter. Specifically:
(a)the Tribunal did not exercise the powers under s 359, 359A or 359AA of the Act to obtain additional information or to invite the applicant to comment or respond to information. There was no error in this approach. It was the applicant’s responsibility to provide the Tribunal with the evidence it needed to be satisfied that he met the criteria for the grant of the visa: Abebe v The Commonwealth [1999] HCA 14;
(b)the Tribunal invited the applicant to attend a hearing (as required by s 360 of the Act) and he did so;
(c)the Tribunal plainly referred, in its hearing invitation, to information and evidence relevant to visas of this sort. This information placed the applicant on notice of matters which would assist him and detailed the evidence the Tribunal required from him;
(d)the applicant provided evidence about his enrolment status during the course of the hearing (at [10]-[11]);
(e)the Tribunal listened to the applicant and actively sought further information from him about his enrolment status. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI; and
(f)there is nothing to indicate that the applicant requested additional time to provide information to the Tribunal or that he asked for an adjournment of the hearing. Accordingly, there was no request made to the Tribunal for the exercise of any discretion.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness.
No error arises in relation to the conduct of the review.
Grounds 1 and 2 are, accordingly, dismissed.
Ground 3
Ground 3 provides:
3.I also feel that the law was incorrectly applied as the AAT did not advise me properly of the things I was supposed to produce at the hearing neither was I given more time despite repeated requests.
This ground fails on a factual level.
As noted by the Court above, in its hearing invitation letter sent to the applicant on 19 December 2017 (CB 116-128) the Tribunal asked the applicant to provide “all documents” he intended to rely on to establish that he met the criteria for the grant of the visa (CB 117).
The invitation letter detailed the type of specific information that would allow the Tribunal to make a decision in relation to the applicant’s matter (CB 118). Items 1 and 2 in the list provided in that letter requested a copy of the applicant’s current CoE and documents to demonstrate that the applicant was currently enrolled in a course (or that he had an offer of enrolment). The letter also specified that both the CoE and proof of enrolment were requirements for the grant of a student visa (CB 118).
Despite this request being made more than a month prior to the Tribunal hearing, the applicant did not provide any material to the Tribunal in relation to his enrolment status.
As set out above, there is also no evidence before the Court to suggest that the applicant sought any additional time (at any point prior to or at the Tribunal hearing) to provide the Tribunal with confirmation of his enrolment in any course of study or that he intended to enrol in any course of study but required more time to do so. Indeed, the applicant’s evidence to the Tribunal was that he was not enrolled in any course of study and had not been enrolled in any course since 2016 (at [10], CB 151).
No error arises in relation to ground 3.
Affidavit
The applicant affirmed and filed an affidavit with this Court on 16 February 2018 (in support of his application for judicial review). That affidavit sets out some background information about his visa application and migration history and largely repeats the applicants grounds of review (as outlined above). It also provides as follows:
•I was charged such a big amount for the appeal process and I believe that I should have at least received clarification regarding the expectation of the Tribunal at the hearing. My application was refused on the spot orally and till date I have not received a full refusal record. It was such an important application for me and I feel that a direct refusal of my review is very harsh punishment. As such, I feel that the AAT had made an error in their judgement and refused my application for review. Thus, I would like to challenge the decision of the AAT as I feel it was not lawful and fair. As such, I have decided to appeal the decision at the Federal Circuit Court in the hope of getting a fair and lawful outcome so that I can get my visa as planned.
In addition to issues already raised in the applicant’s grounds of review (and addressed above), the applicant appears to broadly take issue with the Tribunal making an oral decision at the hearing before it and a “failure” on the part of the Tribunal to provide written reasons for its decision.
To the extent that the applicant has concerns about the Tribunal giving an oral decision, the Court notes that the Tribunal is empowered to do so under s 368D(1) of the Act, which provides:
368D Tribunal’s decisions given orally
How and when oral decisions are taken to have been made
(1)A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.
The Tribunal made an oral decision in this matter on 23 January 2018 at 10.05am (CB 147).
In circumstances where a decision is made by the Tribunal orally, the applicant is entitled to request that a written statement of reasons be provided by the Tribunal pursuant to s 368D(4) of the Act, which provides:
368D Tribunal’s decisions given orally
…
Written statement to be provided on request of applicant
(4)If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:
(a) reduce the oral statement to writing; and
(b)within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:
(i)to the applicant by one of the methods specified in section 379A; and
(ii)to the Secretary by one of the methods specified in section 379B.
The applicant was advised by the Tribunal (on 23 January 2018) that he could request a written statement of the Tribunal’s decision in its letter providing him with details of the oral decision (CB 143).
The Tribunal reduced its oral statement to writing on 25 July 2018 (CB 150-152) and a copy of those written reasons was provided to the applicant via email on 25 July 2018 (CB 148-149).
There is no evidence before the Court to suggest that the applicant requested that the Tribunal provide a written statement of reasons and it is thus not possible for the Court to ascertain if the written reasons were provided within the requisite 14 day timeframe. However, even if the written reasons were provided by the Tribunal outside of the 14 day time period, as explained by this Court in its decision of Gadapa v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 606, such a procedural irregularity would not result in invalidity to the Tribunal’s decision: s 368D(7) of the Act.
No error arises in relation to the Tribunal making an oral decision in this matter or in the provision of written reasons by the Tribunal.
CONCLUSION
The application for judicial review and the applicant’s affidavit (both filed by the applicant on 16 February 2018) fail to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application (as orally amended on 10 August 2022) is, accordingly, dismissed.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 August 2022
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