Kaur v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 869
•13 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 869
File number(s): ADG 59 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 13 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied procedural fairness to the applicant – whether the Tribunal failed to consider applicant’s circumstances – where oral reasons delivered by the Tribunal – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 368D, 368D(1), 368D(2), 368D(3), 368D(4), 368D(5), 368D(7), 476
Migration Regulations 1994 (Cth) cl 500.212(a)
Cases cited: Ammar Aslam Jan v Minister for Home Affairs [2019] FCA 1837
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 524
Djokovic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 117
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Virdi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 282
Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFam2C2G 87
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submission/s: 30 May 2024 Date of hearing: 28 August 2024 Place: Adelaide Applicants: First and Second applicants appeared on behalf of all applicants, self-represented with the assistance of a Punjabi interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 59 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASBIR KAUR
First Applicant
HARBHAJAN SINGH
Second Applicant
HARISMAN KAUR (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 GERRARD
DATE OF ORDER:
13 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application 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 GERRARD:
BACKGROUND
The first applicant (the applicant) is a citizen of India. She first arrived in Australia on 24 October 2008 as the holder of a Vocational Education and Training Sector visa (Class TU) (Subclass 572) (Court Book (CB) 109). Subsequently, the applicant has remained in Australia following the grant of three further student visas and two subsequent subclass 457 visas (CB 109).
Since arriving in Australia, the applicant has enrolled in ten courses (CB 109-110) of which she has completed the following six (CB 175):
·General English, completed in November 2008;
·Certificate III in Horticulture, completed in August 2010;
·Diploma in Horticulture, completed in July 2011;
·Diploma of Management, completed in August 2012;
·Diploma of Business, completed in 2013; and
·Advanced Diploma of Business Management, completed in November 2014.
The applicant applied to become an Australian permanent resident in 2017 but was unsuccessful (CB 177).
On 16 April 2018, the applicant applied for a Student (Class TU) (Subclass 500) visa (the visa) (CB 1-26). In that visa application, the applicant indicated that she intended to study a Master of Technology with an expected completion date of 2019 (CB 177). Her husband (the second applicant) and children (the third and fourth applicants) (the applicants) were included in her application as members of her family unit.
On 27 June 2018, a delegate of the first respondent (the Minister) refused to grant the applicants the visa. The delegate was not satisfied that the applicant met the genuine temporary entrant criterion in cl 500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 101-115). That criterion provides:
The applicant is a genuine applicant for entry and stay as a student:
(a) having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii) if the applicant is a minor--the intentions of a parent, legal guardian or spouse of the applicant…
On 15 July 2018, the applicants applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 116-118).
On 5 January 2021, the Tribunal wrote to the applicant inviting her to provide further information in a “Request for Student Visa Information” form (Information form) by 19 January 2021 (CB 123-127). The Tribunal also provided the applicant with a copy of Ministerial Direction No. 69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’ (Direction 69) (CB 128-132).
In January 2021, the applicant provided a completed Information form (CB 133-143). In that form, the applicant advised that she was now enrolled in an Advanced Diploma of Business which would commence in February 2021 and would be completed by February 2022 (CB 139). When prompted by the form to give information as to why she wished to undertake the proposed study, the applicant answered that she wanted to start her business in her home country and that was the reason she had elected to enrol in the Advanced Diploma of Business. No additional information or detail was provided by the applicant in that form as to the nature of the proposed business. When asked whether there were similar courses available in her home country, the applicant responded that, in her experience, the study options in her own country lacked the practical aspects available in Australian courses. When asked to explain any periods of time when she was not enrolled in a course of study, the applicant explained that she was not enrolled in any course from June 2018 (the month in which the delegate made their decision) to December 2020 because she was “very upset” when her student visa application had been refused and so she did not enrol during that period (CB 140).
The applicant also provided a confirmation of enrolment in relation to her Advanced Diploma of Business. In written submissions, the Minister observed that the new confirmation of enrolment had been “created” on 19 January 2021, which the Minister says was after the Tribunal asked the applicant to complete the form (CB 144). For the sake of clarity, this was the date by which the Tribunal had asked the applicant to respond to the Information form, but certainly after that request had been issued. In any event, nothing appears to turn on this.
On 3 February 2021, the applicant was invited to attend a hearing scheduled for 23 February 2021 (CB 146-150).
On 23 February 2021, the applicant attended the hearing (CB 165-167). At the conclusion of that hearing, the Tribunal delivered an oral decision affirming the delegate’s decision not to grant the applicant the visa (CB 171). On 22 March 2021, the Minister requested the Tribunal provide written reasons for its decision. The Tribunal provided a written record of its decision on 1 April 2022 (CB 173-179).
On 15 March 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s reasons begin by identifying the visa decision under review, noting that the applicant had applied for the Student (Temporary) (Class TU) visa on 16 April 2018. The Tribunal explained that, on 27 June 2018, a delegate of the Minister had refused to grant the applicant the visa because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [1]).
The Tribunal explained its role in assessing the delegate’s decision, and the evidence and arguments it had considered. The Tribunal also acknowledged that the Tribunal hearing had been conducted by telephone, noting that the applicant had raised no difficulty with appearing by telephone and that the Tribunal considered there had been no disadvantage to the applicant in presenting her case (at [2]-[3]).
The Tribunal noted it was satisfied that the applicant was currently enrolled in a registered course of study, namely, an Advanced Diploma of Business, and the only determinative issue therefore was whether the applicant was a genuine temporary entrant for entry and stay in Australia as a student (at [4]-[5]). In doing so, the Tribunal explained that it had considered and applied cl 500.212 of the Regulations, as well as Direction 69.
Against this background, the Tribunal made the following findings.
The Tribunal found that the applicant had first arrived in Australia from India on 24 October 2008 on a student visa and had remained in Australia since that time save for returning to India on approximately four occasions, the most recent being in late 2016 or early 2017 (at [8]). The Tribunal accepted that the applicant is married and has two daughters in Australia, but that she is in contact with extended family members in India (at [10]). The Tribunal accepted that, although there are economic incentives to remain in Australia, they are not significant and that the applicant’s personal ties to India are a strong incentive to eventually return home (at [23] and [24]).
The Tribunal heard that the applicant’s reason for studying in Australia rather than India was that ‘the majority of study [in India] is theoretical and does not give real time experience’ but the Tribunal placed little weight on this due to the applicant having last studied in India in 2006 (at [9]). The applicant claimed they eventually want to start a business in their home country, but provided scant details about the proposed business, how they would start that business, or the expected income from such business (at [9] and [11]). The Tribunal placed little weight on these statements.
The Tribunal found that the applicant has remained in Australia on four student visas and two subclass 457 visas which enabled the applicant to work for a period in the regional towns of Kadina and Streaky Bay (at [15]). The Tribunal found that the applicant applied for permanent residency in 2017 but that was refused, and that the applicant has a ‘wish to live ongoing in Australia’ (at [16]).
The Tribunal did not accept the applicant’s evidence that she chose to study horticulture so that she could assist with her brothers’ farming interests in India, particularly noting that she had since shifted into management-related studies (at [17]). When questioned by the Tribunal member about this course of study, the applicant gave vague general responses about starting her own business, but the Tribunal was not satisfied the applicant had any specific intentions in this regard (at [18]). The Tribunal put to the applicant that she has been in Australia for over 12 years and that she is attempting to live here permanently by making repeat visa applications, which the applicant denied (at [21]).
With regard to Direction 69 and the applicant’s intention to genuinely stay in Australia temporarily as a student, the Tribunal did not accept there are reasonable reasons for the applicant not undertaking their current proposed course of study in India (at [22]). The Tribunal did not accept that there is any real value in the applicant’s current course of study, or that it would assist the applicant’s employment prospects over and above the study they had already completed. The Tribunal did not accept that the course of study was relevant to the applicant’s proposed future employment, whether that be in a café, restaurant or petrol station (at [25]). The Tribunal concluded that the applicant is using the student visa program to maintain ongoing residence in Australia (at [26]).
The Tribunal was ultimately not satisfied that the applicant intended to genuinely stay in Australia temporarily (as required by cl 500.212 in Schedule 2 of the Regulations) (at [28]).
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a subclass 500 Student visa (at [29]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 15 March 2021 contains three grounds of review as follows (without alteration):
1.Administrative Appeal Tribunal made Jurisdictional error by not considering our current enrolled study documents.
2.Administrative Appeal Tribunal made Jurisdictional Error by not considering our previous study record.
3.Administrative Appeal Tribunal made Jurisdictional Error by not providing us written decision. We only received oral decision.
The applicant filed an affidavit with that judicial review application (on 15 March 2021). The affidavit annexed a copy of both the delegate’s decision and the Tribunal’s decision.
The applicant appeared before the Court on 28 August 2024 without legal representation but with the assistance of a Punjabi interpreter. The Court confirmed with the applicant that she had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 15 March 2021 (the affidavit being taken as read and in evidence at the hearing on 28 August 2024), a Court Book numbering 179 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 30 May 2024.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 28 August 2024, the applicant was invited to tell the Court what she believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig);
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)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 and Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]).
However, it was also explained to the applicant that this was not an exhaustive list, and she should attempt to articulate why she said the Tribunal had fallen into error.
In her submissions before the Court, the applicant expressed that she wanted to study in Australia and then return to India to start a business. She said that she was stressed when she had been notified of the refusal of her visa and that stress had led to her not being able to continue with her study. The Court asked the applicant directly if there was anything in particular she thought the Tribunal did wrong or any mistake that the Tribunal had made, and the applicant said no.
CONSIDERATION
As outlined above, there are three grounds of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection[2015] FCA 1392). In this matter, the application includes three succinct but clear grounds.
Grounds one and two
Grounds one and two can be dealt with together. Through these grounds, the applicant submits that the Tribunal failed to consider the applicant’s ‘current enrolled study documents’ and her ‘previous study record’. The applicant did not elaborate on this at the hearing of this matter.
In written submissions, the Minister submitted that both these grounds are not made out because the Tribunal’s reasons demonstrate that it took both the applicant’s past and present studies into account. Furthermore, it was a matter for the Tribunal to assign the weight it considered to be appropriate to each of those matters as part of its overall application of Direction 69 (citing Ammar Aslam Jan v Minister for Home Affairs [2019] FCA 1837).
The Court accepts the Minister’s submissions in relation to this. The Tribunal clearly identified that it had regard to the applicant’s enrolment and history of study. Relevantly, the Tribunal stated in its decision (CB 175, 177-178):
1. As I have said, I obviously considered the delegate's decision. I gave careful consideration to your study or enrolment history here in Australia, and I am going to take a bit of time putting it on the record. You completed successfully a General English course between 27 October 2008 and 28 November 2008. There were further enrolments in English courses and community services-related courses, but they were cancelled. Between 24 August 2009 and 23 August 2010 you successfully completed a Certificate Ill in Horticulture (Wholesale Nursery). That.is to your credit. Between 24 August 2010 and 26 July 2011 you successfully completed a Diploma in the same subject, horticulture. Between 29 August 2011 and 28 August 2012 you successfully completed a Diploma of Management. Between 8 October 2012 and 7 October 2013 you successfully completed a Diploma of Business. Then you completed the Advanced Diploma of Management between 2 December 2013 and 28 November 2014.
2. There was then a gap of four years or so between your next study. You have just recently commenced the Advanced Diploma of Business, as I have already mentioned, so it appears that between November 2014 and 15 February '21 you did no studies. You have given me an explanation as to that, but the observations are that as of now, you do have already a Diploma of Management, a Diploma of Business, and an Advanced Diploma of Management, so I had to consider that in light of your current enrolment, the Advanced Diploma of Business.
…
17. We spent quite some time going through your study history. I have already outlined it, there is no need for me to go into it in any detail now. I found your answers in relation to why you did these particular courses, such as horticulture, the certificate IV and the diploma, I found difficult to accept. You wanted me to accept that you studied horticulture to help you with your brothers' farming interests, for when you return. I did not find your evidence to be particularly persuasive or convincing. In particular, I concentrated on why you had moved from horticulture, being an agricultural type of course, into management-related studies. You told me that you believed it would be helpful in your future, and that you wanted to get more experience through study.
18. I then probed you for some period of time as to whether you were looking at anything in particular by studying the Diploma of Business and the Diploma of Management. You were not able to provide me with any specific goal or ambition or plan as to why you were doing those particular courses. A course you did, the Advanced Diploma of Management, between December 2013 and November 2014 - when I probed about doing that, you told me that you were thinking about starting a business on your own when you returned. Again, I probed you as to whether you had anything particular in mind. It is fair to say that your answer was not particularly convincing to me. You gave general information about starting a petrol station, or operating a petrol station, cafes or restaurants. It was clear to me that you had not commenced making any particular plans as to what you would need to do. It was clear to me you had not done any particular deep research either.
…
21. I asked why you have just recently enrolled in the further course, the Advanced Diploma of Business. You said to me, because of COVID you are here. If you are here, you should get a qualification, it would be useful to you to go back to India with the Advanced Diploma of Business. I asked what your business plans are now, and you gave the same general response, and that you are thinking about cafe and petrol stations. I then asked you, why do you need an Advanced Diploma of Business., bearing in mind the qualifications you have already got, and you said to me that you do not want to be sitting around in Adelaide doing nothing, when you could be studying. I then identified to you that you and your husband have now been living in Australia for 12 years. and four months, and I put it to you that, in effect, what you are doing is you are living here permanently by repeat applications for visas, in effect trying to extend your stay. You said that was not the case.
…
25. I am not satisfied on all of the evidence, considered individually and collectively, that there is any real value in you studying the current course. I am not satisfied the current course will assist you to obtain employment or improve employment prospects over and above what you have already done here 'in Australia in the studies I have already mentioned. I am not satisfied that the course is relevant to your proposed future employment, whether that be in a cafe, a restaurant, or a petrol station.
The Tribunal clearly had regard to the applicant’s current enrolment and her prior study record. The passages set out above demonstrate that the Tribunal was aware of her current enrolment and history of study, fully engaged with that history and took the time to carefully explain its evaluation of that history to the applicant in the course of its oral decision.
Contrary to the applicant’s assertion otherwise, not only did the Tribunal consider the applicant’s current enrolment and prior history of study, but also fulsomely engaged with that information in reaching its decision. The passages from the Tribunal’s decision set out above demonstrate that the Tribunal conscientiously had regard to all of the evidence, including the applicant’s evidence at the hearing, in respect of the applicant’s enrolment and study history and took the time to explain to the applicant what it did and did not accept.
Furthermore, having regard to the Tribunal’s decision as a whole, the Court observes that the decision is a careful, thorough and considered review of the entirety of the claims and evidence raised by the applicant.
No jurisdictional error is made out in respect of grounds one and two.
Ground three
Through ground three, the applicant argues that the Tribunal fell into jurisdictional error by delivering only an oral decision and not written reasons for its decision. This ground cannot succeed as it is inconsistent with the statutory scheme.
Section 368D of the Act relevantly provides as follows:
(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.
Statement in relation to oral decision
(2)If a decision on a review is given orally, the Tribunal must:
(a)make an oral statement that:
(i)describes the decision of the Tribunal on the review; and
(ii)describes the reasons for the decision; and
(iii)describes the findings on any material questions of fact; and
(iv)refers to the evidence or any other material on which the findings of fact were based; and
(v)identifies the day and time the decision is given orally; or
(b)make a written statement that:
(i)sets out the decision of the Tribunal on the review; and
(ii)sets out the reasons for the decision; and
(iii)sets out the findings on any material questions of fact; and
(iv)refers to the evidence or any other material on which the findings of fact were based; and
(v)records the day and time the decision is given orally.
(3)The Tribunal has no power to vary or revoke the decision after the day and time the decision is 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;
…
(5)If the Tribunal makes an oral statement under paragraph (2)(a), and, at any time after the oral statement is made, the Minister makes a written request for the oral 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.
(7)The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a)a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or
(b)a failure to comply with subsection (4), (5) or (6).
The Minister accurately summarised the application of s 368D to the applicant’s circumstances as follows (at [16] of its written submissions):
The Tribunal’s decision to deliver its reasons orally meant that it was not obliged to notify the applicants of the decision under s 368A nor was it required to give them a copy of a written statement of the decision under s 368. There is no evidence that the applicants invoked their right under 368D(4) to apply for the Tribunal to “reduce the oral [decision] to writing”, and the 14 day period in which they could do so expired on 9 March 2021. In any event, any failure by the Tribunal to comply with s 368D(4)(b) does not invalidate its decision. For completeness, the Tribunal also responded to the first respondent’s request for a written copy of decision under s 368D(5) of the Act and that document forms part of the court book filed on 2 May 2021.
This Court has held that there is no denial of natural justice by virtue of the Tribunal delivering an oral decision (see Dhillon v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 524 at [15] per Judge Lucev; Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFam2C2G 87 at [30] per Judge Ladhams; Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 117 at [42] per Judge Given). Quite clearly, the Tribunal has the power to give reasons for its decision orally and that is precisely what the Tribunal did in this matter.
As correctly pointed out by the Minister, the applicant failed to make a request pursuant to s 368D(4) within the 14-day period prescribed by the Regulations. In any event, the Minister did make a request for the oral statement of reasons to be provided in writing which the Tribunal did (CB 172-179).
The Tribunal was entitled to deliver oral reasons for its decision, and it complied with statutory requirements in this respect. Moreover, the Tribunal did provide a written statement of the decision once requested by the Minister.
Ground three is not made out.
Discretionary refusal of relief – ulterior purpose
The Minister also submitted, as an alternative, that the Court should refuse to grant relief in the exercise of its discretion. The Court was asked to “draw an inference” that the applicant is pursuing this judicial review proceeding for an “ulterior purpose”, namely, to extend her residence in Australia. In support of that submission, the Minister relied upon an affidavit of Benjamin Mayne affirmed on 30 May 2024. That affidavit did no more than annex a copy of screenshots of the applicant’s PRISMS records.
A similar argument was rejected by this Court in Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818 at [52]-[59] (Kaur). In Kaur, this Court declined to draw the adverse inference sought by the Minister on the basis that it bordered on a veiled request to engage in impermissible merits review. Such an inference should not be drawn lightly and the Minister’s reliance on authorities said to support this position was misplaced. The Court also observes that Judge Laing declined to make a similar inference sought by the Minister in Virdi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 282 at [29]-[30].
For the same reasons as set out in Kaur, this Court declines to make the inference requested by the Minister.
Nevertheless, as the Court has accepted that there is no apparent jurisdictional error which arises on the face of the decision, the application has not succeeded and there is consequently no need for this Court to consider withholding relief on this basis.
CONCLUSION
The application for judicial review, supporting affidavit and additional oral submissions presented by the applicant have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 13 September 2024
SCHEDULE OF PARTIES
ADG 59 of 2021 Applicants
Fourth Applicant:
HARISRAT KAUR
2
21
2