Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 515
•18 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 515
File number(s): BRG 79 of 2020 Judgment of: JUDGE EGAN Date of judgment: 18 March 2021 Catchwords: MIGRATION – Application for Medical Treatment Visa – relationship between cl. 602.212 and cl. 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) – whether applicant medically unfit to depart Australia – whether applicant genuinely intended to stay only temporarily in Australia – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), Schedule 2, cll 572. 235, 602.212, 602.215, Cases cited: Eros & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013)249 CLR 332.
Number of paragraphs: 37 Date of last submission/s: 15 March 2021 Date of hearing: 15 March 2021 Place: Brisbane Counsel for the Applicant: Mr Rebetzke Solicitor for the Applicant: Bhardwaj & Associates Counsel for the First Respondent: Mr Psaltis Counsel for the First Respondent: Clayton Utz Second Respondent Submitting appearance save as to costs. ORDERS
BRG 79 of 2020 BETWEEN: KARAMJIT KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
18 MARCH 2021
IT IS ORDERED THAT:
1.The Further Amended Application for Review filed on 6 August 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant is a citizen of India who arrived in Australia on 7 November 2008 as the partner of her husband who was the grantee of a student visa.
On 21 September 2012, the applicant applied with her husband for further student visas. On 11 December 2012, a delegate of the Minister refused to grant the visas. Upon review, the Migration Review Tribunal affirmed the decision of the delegate on the ground that the applicant’s husband had not substantially completed his course of study, his thereby not satisfying cl. 572.235 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). As the partner of the visa applicant, the Migration Review Tribunal found that the applicant could not satisfy the primary criteria or secondary criteria, and that, therefore, her application was refused. A review of that decision before the Federal Circuit Court of Australia was dismissed on 7 August 2014.
An Application for Ministerial Intervention was refused, whereupon the applicant and her husband were each granted a bridging visa on the basis that they would each depart Australia.
A subsequent Ministerial Intervention Application was approved on the basis that the applicant had suffered personal injuries sustained in a motor-vehicle accident which had occurred on 22 October 2014. A medical treatment visa was granted allowing the applicant to stay in Australia until 14 June 2017.
On 13 June 2017, the applicant applied for a further medical treatment visa. On 20 June 2017, the Minister refused the application on the basis that the Minister was not satisfied under cl. 602.215(1) of Schedule 2 to the Regulations that the applicant intended to genuinely only stay in Australia temporarily.
On 1 November 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the Minister’s delegate to refuse to grant the further medical treatment visa application.
After the submission by the applicant of much supporting material and three (3) appearances before the Tribunal by the applicant whilst assisted by a Migration Agent, the Tribunal affirmed the decision of the delegate on 16 January 2020.
On 11 February 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal.
Consideration of Applicant’s Claims
At the hearing before the Court, the applicant relied upon a Further Amended Application for Review, the grounds of which were as follows:
“1. The Tribunal failed to carry out its statutory task in assessing the Applicant's application for a visa in accordance with the law by failing to assess the Applicant's claims against subclauses 602.212(2) to (8) of Schedule 2 of the Migration Regulations 1994 (the Regulations), other than subclause 602.212(6).
2. The Tribunal's task miscarried when considering the criteria in clause 602.215 of Schedule 2 of the Regulations by failing to first consider whether the Applicant met the criteria in one of subclauses (2) to (8) of clause 602.212 in that:
a. The Tribunal could not assess the genuine intention of the Applicant to stay temporarily in Australia for the purpose for which the visa is granted because the purpose for which the visa is granted depends on which criteria in clause 602.212 is met by an Applicant; and
b. Whether the Applicant met the criteria in one of the subclauses (2) to (8) of clause 602.212 is a “relevant matter” required to be considered by subclause 602.215(1)(c).
3. The Tribunal gave an impermissibly narrow and erroneous construction to the term "medical treatment" as used in the criteria for Subclause 602 - Medical Treatment visas in the Regulations by imposing a temporal limitation on the extent or type of treatment that may qualify as a purpose for which the visa may be granted.
4. The Tribunal misconstrued or misapplied the criteria in subclause 602.215(1) in that it misstated, in its reasons at paragraph [49], that the visa is for the Applicant to "receive treatment on a temporary basis and then to abide by the terms of the visa and return to her in India [sic]" when the requirement is not for the Applicant to receive treatment on a temporary basis, but for the Applicant to have a genuine intention to stay temporarily in Australia for the purpose of medical treatment or for related purposes.
5. The Tribunal failed to consider a relevant matter for subclause 602.215(1)(c), namely whether the Applicant met the criteria in one of the subclauses (2) to (8) of clause 602.212.
6. The Tribunal's purported exercise of power was affected by misunderstanding subclause 602.215(1)(c) as creating an additional issue of whether there are compelling or exceptional circumstances to warrant departure from the purpose of the visa, or compelling personal reasons for the grant of the visa, as is evident from the Tribunal's reasons at paragraphs [8] and [51].
7. The Tribunal's decision was the result of arbitrary or capricious decision-making, or lacked an intelligible justification, and was therefore legally unreasonable in that the Tribunal recorded incompatible reasoning with respect to the applicant and her husband having not taken steps to leave Australia in 2014:
a. At paragraph [31] the Tribunal recorded it placed "no weight" on this fact;
b. At paragraph [44] the same fact was used to conclude that the applicant "has shown an unwillingness to leave Australia".
It was submitted on behalf of the applicant that Grounds 1, 2 and 5 were to be considered together, as were Grounds 3 and 4. It was conceded that Grounds 6 and 7 were independent grounds.
Clauses 602.2, 602.211 and 602.212 of Schedule 2 to the Regulations were respectively as follows:
“602.2 – Primary Criteria
Note: All applicants must satisfy the primary criteria unless the applicant is a member of the family unit of a person who holds:
(a) a Subclass 602 visa on the basis of satisfying subclause 602.212(6) (unfit to depart); or
(b) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis of satisfying subclause 685.221(4) (unfit to depart).
Those applicants must satisfy the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
602.211
The applicant seeks to visit Australia, or remain in Australia temporarily, for the purposes of medical treatment or for related purposes.
602.212
(1) The requirements in one of subclauses (2) to (8) are met.
Medical treatment
(2) All of the following requirements are met:
(a) the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;
(b) arrangements have been concluded to carry out the treatment;
(c) if the treatment is an organ transplant:
(i) the donor of the relevant organ is accompanying the applicant to Australia; or
(ii) all requisite arrangements to effect the donation of the organ have been concluded in Australia;
(d) the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
(e) arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(f) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Organ donor
(3) All of the following requirements are met:
(a) the applicant seeks to donate an organ for transplant in Australia;
(b) if the organ recipient is also an applicant, the requirements described in subclause (2) are met in relation to the organ recipient;
(c) the applicant satisfies public interest criterion 4005;
(d) arrangements have been concluded for the payment of all costs related to the organ transplant and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;
(e) either:
(i) the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or
(ii) evidence is produced that the relevant government authority has approved the payment of those costs.
Support person
(4) All of the following requirements are met:
(a) the applicant seeks to give emotional and other support to an applicant in relation to whom:
(i) the requirements described in subclause (2) or (3) are met; or
(ii) the requirements described in subclause 675.212(2) or (3) are met; or
(iii) the requirements described in subclause 685.212(2) or (3) are met;
(b) the person to whom the applicant is to provide support holds:
(i) a Subclass 602 visa on the basis that the requirements described in subclause (2) or (3) have been met; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa on the basis that the requirements described in subclause 675.212(2) or (3) have been met; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa on the basis that the requirements described in subclause 685.212(2) or (3) have been met;
(c) the applicant satisfies public interest criterion 4005.
Western Province of Papua New Guinea
(5) All of the following requirements are met:
(a) the applicant is a citizen of Papua New Guinea;
(b) the applicant resides in the Western Province of Papua New Guinea;
(c) the Department of the government of Queensland that is responsible for health has approved the medical evacuation of the applicant to, or treatment of the applicant in, a hospital in Queensland.
Unfit to depart
(6) All of the following requirements are met:
(a) the applicant is in Australia;
(b) the applicant has turned 50;
(c) the applicant has applied for a permanent visa while in Australia;
(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;
(e) the applicant has been refused the visa;
(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.
Financial hardship
(7) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant holds:
(i) a Subclass 602 visa; or
(ii) a Subclass 675 (Medical Treatment (Short Stay)) visa; or
(iii) a Subclass 685 (Medical Treatment (Long Stay)) visa;
(d) the applicant is suffering financial hardship as a result of changes in the applicant’s circumstances after entering Australia;
(e) the applicant, or a member of the applicant’s immediate family, is likely to become a charge on the Commonwealth, a State, a Territory or a public authority in Australia;
(f) the applicant, or a member of the applicant’s immediate family, cannot leave Australia for reasons beyond his or her control;
(g) the applicant has compelling personal reasons to work in Australia;
(h) the applicant satisfies public interest criterion 4005.
Compelling personal reasons
(8) All of the following requirements are met:
(a) one of the following applies:
(i) the requirements described in paragraphs (2)(a) to (c) are met in relation to the applicant;
(ii) the requirements described in paragraphs (3)(a) and (b) are met in relation to the applicant;
(iii) the requirements described in paragraphs (4)(a) and (b) are met in relation to the applicant;
(iv) the requirements described in subclause (5) are met in relation to the applicant;
(v) the requirements described in paragraphs (6)(a) to (e) are met in relation to the applicant;
(b) the applicant is in Australia;
(c) the applicant has compelling personal reasons for the grant of the visa;
(d) the applicant satisfies public interest criterion 4005, other than paragraph 4005(1)(c).”
As to the criteria as set out in cl. 602.212(2) – (8) of Schedule 2:
(a)The Tribunal recorded at [10] of its reasons that save for cl. 602.212(6), the applicant had not put forward any evidence in support of her claims that any of the other cl. 602.212 criteria had been satisfied; and
(b)It was noted by the Tribunal that the applicant had not satisfied all of the cl. 602.212(6) criteria because she had not, at the time of the Tribunal’s decision, attained the age of 50 years. The applicant was born on 11 March 1975.
At [15] of its reasons, it was open for the Tribunal to find that the applicant had not discharged her onus to establish that the requirements of cl. 602.212 had been met as required.
Having so found, the Tribunal then examined whether the criteria as set out in cl. 602.215 of Schedule 2 to the Regulations had been met. Clause 602.215 relevantly provided as follows:
“602.215
(1) 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 602 visa would be subject; and
(c) any other relevant matter.
(2) However, subclause (1) does not apply if the requirements described in subclause 602.212(6) are met in relation to the applicant.”
At [18] of its reasons, the Tribunal noted that cl. 602.215 would not apply in circumstances where an applicant was medically unfit to depart Australia, [1] however, at [13] of its reasons, it had noted that there was no evidence that the applicant was medically unfit to depart Australia for any relevant reason. That was so in circumstances where the age requirement in cl. 602.212(6), as earlier adverted to, had also not been met.
[1] Clause 602.212(6)(f
At [19] – [50] inclusive of its reasons, the Tribunal closely considered the applicant’s medical condition, and the treatment provided to her as a consequence of injuries sustained by her in the motor vehicle accident of 22 October 2014.
Applicant’s Submissions
As to Grounds 1, 2 and 5 of the Grounds of Review, it was claimed on behalf of the applicant that the Tribunal had failed to properly exercise jurisdiction when assessing the applicant’s application by failing to assess the applicant’s claims against each of sub-clauses (2 – 8) of cl. 602.212 of Schedule 2 to the Regulations. There is no merit to such claim.
Clause 602.212 only required satisfaction of one of its sub-paragraphs. If one such sub-paragraph was met, then the task of the Tribunal was then to consider whether cl. 602.215 had been met. To that extent, cl. 602.212 must be read in conjunction with, and as being conditioned by, the provisions of cl. 602.215.
That included, by cl. 602.215(2), a consideration as to whether “the requirements” of cl. 602.212(6) had or had not been met by the applicant. As to that, the applicant did not meet cl. 602.212(6)(b) because she had not reached the age of 50 as at the time of the decision. Further, the applicant did not meet cl. 602.212(6)(f) because, as found by the Tribunal, there was no medical evidence before the Tribunal which suggested that the applicant was unfit to depart Australia due to any permanent or deteriorating disease or health condition. The Tribunal dealt with that issue at [44] – [45] of its reasons as follows:
“[44] There is no recent medical information stating that the applicant cannot travel to her home country. She has had a long-term stay in Australia for the purpose of exploring various forms of treatment and operative procedures. The applicant has had both treatment and consultations over a substantial period of time. She has shown an unwillingness to leave Australia, having been on a Bridging visa E from August 2014 to the date of her accident on 22 October 2014. There was no evidence of her taking steps to leave Australia.
[45] The Tribunal has carefully considered the applicant’s position. There is no current evidence from her about prescribed medications, and why it is necessary for her to continue to live in Australia to continue any such medications. There is no evidence specific evidence from either Dr Sonigra or the applicant that there is medical treatment or a prescribed medicine available in Australia that is not available in India. There is no evidence that the applicant needs support in departing Australia.”
The medical evidence before the Tribunal, and the medical reports annexed to the affidavit of the applicant sworn on 11 March 2021 (leave for the filing of which was granted at the hearing before the Court) suggested generally that the applicant stay in Australia for optimal medical care, [2] but did not state that the applicant was medically unfit to depart Australia.
[2] See for example annexure KK-2 to applicant’s affidavit sworn on 11 March 2021 – report of Dr Sonigra
Hence, because the applicant had not positively advanced any evidence to show that she had satisfied any of sub-clauses 2 – 5 and 7 – 8 of cl. 602.212, and further because the applicant had not met each of the “requirements” of cl. 602.212(6), the Tribunal did not err in next properly considering whether or not the applicant genuinely intended to stay only temporarily in Australia.
At [47] – [51] of its reasons, the Tribunal considered the question as to whether there were compelling personal reasons for the grant of the visa, and whether the applicant genuinely intended to stay only temporarily in Australia, and found as follows:
“[47] The applicant’s evidence is that her mother two brothers and sister continue to live in India in about the village where they were raised. Her father is now deceased not that long ago. Her evidence initially was that she had no involvement with her family but subsequently conceded she had contact with them occasionally.
[48] The submission made on the applicant’s behalf concerned mainly the issue of the applicant having complied substantially with the conditions of the last substantive visa or subsequent bridging visas. A breach by the husband of a condition of a student visa is not a matter which will be held against her. The Tribunal accepts that there is not a breach by her of a substantive visa or any subsequent bridging visas. The representative raises the issue as to evidence from the treating doctor’s that “their patient was in serious need of the treatment and was not fit to travel”. That is not the evidence that was given in the reports but rather the reason why she ought not to travel is because of ongoing medical treatment and not that she was unfit to travel.
[49] The submission also contends that based on the psychiatristic report (Dr Randhawa) dated 22 February 2018 “Karamjit is likely to require another year to recover”. “It is important she remains in the country for continuity of treatment and care”. The purpose of the visa is not for the applicant to continue indefinitely until she fully recovers from her injuries. The visa is not for the applicant to have continuing care, but rather receive treatment on a temporary basis and then to abide by the terms of the visa and return to her in India. The applicant has given evidence that she would prefer to remain in Australia.
[50] From the time of the accident to now, the applicant has remained in Australia for treatment and care. The applicant has received that treatment and care and is, on the evidence, fit to travel to India. However, it appears she is prepared to do so.
[51] The Tribunal has considered cl.602.212(c) as to whether there are compelling personal reasons for the grant of the visa. The applicant has been granted a visa designed for it to be temporary (cl.62.211) for the purpose of receiving medical treatment. The applicant has received medical treatment from a number of specialists, general practitioners and health care professionals from the date of the accident to 15 January 2020, a period of nine years and two months. The applicant has received compensation so as to be able to continue with medical treatment and care in India. She has the support of a husband, and a family in India with whom she says she has occasional communication. The applicant’s case is that she ought to continue to receive medical treatment in Australia notwithstanding her having been granted that temporary Visa. The applicant has not raised any other personal reasons as to why the visa ought to be remitted to the Department.”
In Eros & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 at [12] and [21], when considering the meaning of the term “genuinely intends to stay temporarily in Australia”, Allsop CJ said:
[12] In Saini v Minister for Immigration and Border Protection [2016] FCA 858; 245 FCR 238, Logan J dealt with cl 572.223. Significant reliance was placed on his Honour’s judgment by the Minister in this case. I will deal with those submissions in due course. As shall be seen from the discussion of the Tribunal’s reasons shortly, that decision, and this appeal, turn on the meaning of, and what can be used to inform a conclusion about the question whether, “the applicant intends genuinely to stay in Australia temporarily” in subcl (a). In Saini 245 FCR at 245 [28] Logan J said the following about that part of the equivalent provision in subcl 572.223(1)(a) (with which I agree in relation to the equivalent words in subcl 500.212(a)):
The words … are concerned with how long the visa applicant intends to stay in Australia and nothing else.
…
[21] The express finding is that Ms Eros intends to remain in Australia while her daughter is here. The evidence was that this was for two years: see [20] of the reasons. On any view that is a temporary stay, by reference to the accepted meaning of the word “temporary” referred to by Wilcox J in the context of construing the phrase “temporarily absent from Australia” in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]:
The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”. The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”.
…
I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.”
The applicant’s stay had not been relatively short, and was undefined and open ended as to the length of time that the applicant intended to stay in Australia. When considering the manner in which the Tribunal relevantly performed its statutory task, there was nothing to suggest that when doing so the Tribunal had acted in a “clearly unjust” or “arbitrary” or “capricious” or "unreasonable" way. [3]
[3] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].
The Tribunal carefully considered the medical evidence before it in the context of there being no evidence that the applicant intended to return to India. The Tribunal was entitled to have regard to the fact that the applicant had arrived in Australia in 2008, and that she could have returned to India for medical treatment after the accident in 2014 but had not done so, notwithstanding that she had received a substantial monetary compensation payment for injuries sustained by her in such accident.
Grounds 1, 2 and 5 of the Further Amended Application for Review are without merit.
Grounds 3 and 4 of the Further Amended Application for Review cavil with the Tribunal’s factual finding that the applicant was not medically unfit to depart Australia. To that extent, the applicant sought that the Court undertake an impermissible merits review.
The Tribunal closely considered the evidence before it, and relevantly had regard to the contents of neurological and psychiatric reports presented to it prior to making its findings. The grounds conflate a medical specialist’s recommendation that the applicant remain in Australia for the purpose of continuing a course of medical treatment with the satisfaction of the onus on the applicant that it be established that the applicant was medically unfit to depart Australia. There is a clear distinction between the two. Further, as the Tribunal had earlier found, the applicant had failed to meet any of the cl. 602.212 criteria.
Grounds 3 and 4 of the Further Amended Application for Review are without merit.
Ground 6 of the Further Amended Application for Review erroneously seeks to import some error into the Tribunal’s reasoning process by suggesting that it not ought to have had regard to whether or not there were compelling personal reasons for the grant of the visa under cl. 602.215(1)(c) of Schedule 2 to the Regulations. There is no merit in such claim. The words ‘any other relevant matter’ in cl. 602.215(1)(c) were so wide in scope as to allow the Tribunal to have regard to other matters of a personal nature which legitimately might have been able to have been taken into account. The Tribunal did consider whether there were any compelling personal reasons for the grant of the visa and found that there were none. That the Tribunal did so did not constitute a misunderstanding by it of what its statutory task was.
Ground 7 of the Further Amended Application for Review was a claim that the findings of the Tribunal were legally unreasonable. There is no merit to such claim. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
“[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
The Tribunal weighed up all of the evidence before arriving at its decision. The Tribunal considered in detail the substantial medical evidence presented to it. It analysed the applicant’s claims in the context of such evidence and found against the applicant, as it was entitled to do.
There is no merit to such claim.
The decision of the Tribunal was not legally unreasonable, and did not lack 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.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 18 March 2021
dated 18 February 2021.
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