Khan v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 878
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 878
File number(s): MLG 950 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 12 September 2024 Catchwords: MIGRATION – application for judicial review – student visa – whether Tribunal erred in considering Ministerial Direction 69 – whether applicant was a genuine temporary entrant – jurisdictional error not established – application dismissed. Legislation: Migration Act 1958 (Ch) s 65
Migration Regulations 1994 cl 500.212
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 7.01
Cases cited: BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 10
SZRUI v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of last submission/s: 15 August 2024 Date of hearing: 15 August 2024 Place: Melbourne Solicitor for the Applicant: The applicant appeared in person Advocate for the First Respondent: Mr Goodwin Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting appearance ORDERS
MLG 950 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KHAN GUL KHAN
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application and amended application is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed at $8,371.30.
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 CORBETT:
INTRODUCTION
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 27 February 2019 (Decision). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Student (Temporary) Class TU Subclass 500 visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).
Reference in these reasons to “CB” pages are references to the Amended Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit reference “R1”.
BACKGROUND
The Applicant is a citizen of Pakistan.
The applicant arrived in Australia on 21 June 2012 on a student visa.
On 29 December 2016 the applicant applied for the Visa.
On 11 April 2017, a delegate of the Minister refused to grant the Visa on the basis that the applicant did not satisfy cl 500.212 of sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 29 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision and appointed a registered migration agent to act as his representative.
On 29 May 2018, the applicant was invited to provide information to the Tribunal about his proposed course of study and his entry and stay in Australia as a student. The Tribunal also provided the applicant with a ‘Request for Student Visa Information’ form (Request Form) to be completed by the applicant, and a copy of Ministerial Direction No. 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (Direction 69) (CB 131-137).
On 7 June 2018, the applicant’s representative returned the Request Form and provided a number of attachments related to the applicant’s education and health insurance to the Tribunal (CB 138-139).
Prior to the hearing before the Tribunal, the applicant provided a range of documents to the Tribunal including a “statement of purpose” (CB163-164), various letters of employment and documents substantiating his ties to Pakistan (CB165-177).
On 17 January 2019, the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to attend a hearing on 27 February 2019 (Hearing Invitation) (CB199-203). The Tribunal requested the applicant provide the following documents within seven days of receipt of the invitation: a response to the Hearing Invitation; a copy of his current Confirmation of Enrolment (COE); documents evidencing his past studies in Australia; and a written statement addressing the issue of whether he was a genuine temporary entrant. The applicant’s representative provided a response to the Hearing Invitation on 22 January 2019 and another bundle of documents to the Tribunal (CB 206-213).
On 27 February 2019, the applicant appeared at the hearing before the Tribunal and was represented by his agent. At the conclusion of the hearing, the Tribunal made an oral decision to affirm the decision under review.
Tribunal decision
On 18 March 2019, the Tribunal published written reasons for the decision made on 27 February 2019 (CB 235-239) (Decision). At paragraph [5] of the Decision, the Tribunal identified that the “role of the Tribunal is to take a fresh look at your application and make a new decision as to whether or not you are eligible for the grant of a student visa”. The Tribunal then identified that it was required to determine whether the applicant satisfied cl 500.212 of sch 2 to the Regulations and was a genuine applicant for entry and stay as a student (at paragraph [6]).
The Tribunal noted in the Decision that in considering whether the applicant was a genuine temporary entrant, it was necessary to have regard to the matters set out in Direction 69. It set out the issues it would take into consideration in accordance with Direction 69, including the applicant’s circumstances, the value of courses to his future, his immigration history, the incentive to remain in Australia or return home, and if the applicant is using the student visa program to maintain ongoing residence in Australia, as well as any other relevant matter (at paragraph [8]).
For the reasons given at paragraphs [14] to [37] of the Decision, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student. Those reasons included that:
·the applicant’s answers to questions regarding his future plans indicated he did not have any fixed plans guiding his studies (at paragraph [24]);
·the applicant’s history of completed studies indicates he is “adequately trained and resourced to return home and commence a business or accept a job offer” and his proposed course would not add significant value to his career prospects (at paragraphs [29]-[30]);
·although the applicant had a wife and immediate family back home which may provide some incentive to return home, he appeared settled having spent 6 and one-half years in Australia with a longstanding history of work, and that there is a strong incentive for the applicant to remain in Australia (at paragraph [35]); and
·the applicant took a 10-month gap between two courses, breaching condition 8202 of sch 8 to the Regulations, and the Tribunal had no confidence the applicant would abide by future visa conditions (at paragraph [37]).
Based on the information before it, the Tribunal was not satisfied that the applicant was a genuine student who intends to stay in Australia temporarily and found that he did not meet
cl 500.212 of sch 2 to the Regulations (at paragraph [37]). The Tribunal accordingly affirmed the decision under review not to grant the applicant the Visa (at paragraph [38]).
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 2 April 2019. In an amended application dated 27 May 2021 (CB 11-16) the applicant set out numerous grounds for review. Those grounds were (without amendment):
1.The Administrative Appeal Tribunal focused only and solely on the objections of the delegate of the Minister and did not take a fresh look of the overall decision. The tribunal was not ready to even hear the applicant pleas and objections other than they decided to enquire. If during the hearing the applicant want to say something, other than the delegates objections, the tribunal member thought and consider that the direct diversion from the case. The Tribunals entirely focus on the ground taken by the delegate for the refusal of the applicant visa application as well as on the future plans of the applicant while overlooking the legality of the decision of the delegate of the Minister. The Ministerial directions No. 69 is perhaps one of the guideline for deciding a student visa application for the delegates but not all in all especially for the Administrative Appeal Tribunal. The whimsical interpretation of the directions by the delegate of the Minister leads to the refusal of the applicant visa application. The Tribunal was supposed to review, evaluate and scrutinized the decision of the delegate of the Minister instead of evaluating around one reason in general raised by the Delegate. The Tribunal decision was capricious in nature and spirit which ultimately leads to not providing a fair opportunity of proper hearing and amount to Jurisdictional error.
2.The applicant Khan Gul Khan was not heard by the Delegate of the Minister before the visa refusal as the Migration Act, 1958 provides for the opportunity to comment in the form of adverse information letter to the applicant. Hence, the applicant was condemned unheard at the time of visa refusal by the Delegate of the Minister as well as by the Administrative Appeal Tribunal. This was the statutory duty of the Administrative Appeal Tribunal to ensure that such primary right were exhausted or not but unfortunately they overlooked it. The infringement of this right is against the Natural Justice and amount to jurisdictional error. The fact of denying the opportunity to comment on the adverse information and intimation for the specific visa refusal is a biased decision which is void ab initio. This mandatory flaw was also overlooked by the Administrative Appeal Tribunal in the hearing and decides the case without considering this mandatory rule of law as per the Migration Act 1958.
3.The applicant was enrolled in the consistent program at a higher level after completing many other lower levels relevant education including English course, Diploma of Management, Certificate IV in Business, Advance Diploma of Business, Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery, Diploma of Hospitality and Advance Diploma of Hospitality from Australia but the delegate of the Minister overlooked or at least not properly considered this fact. The applicant starts the Bachelor of Tourism and Hospitality Management with great enthusiasm but due to the biased decision of the Administrative Appeal Tribunal it in vain. Furthermore, the applicant is still interested in completing at least the tertiary qualification from Australia and to return back to his home country but engaged in the legal litigations. Due to these litigations, as well as due to the COVID 19 epidemic the applicant concentration diverted and hence ultimately living life in uncertainty. The Ministerial Direction 69, are misapplied by the delegate of the Minister and not properly considered the applicant Khan Gul Khan circumstances in home country and in Australia as well the value of the enrolled course for the applicant's future and immigration history while the Tribunal did not even discussed these mandatory issues. The academic career of the applicant, including attendance record, the relevance of the study, and the completion of all almost enrolled courses till the decision of the Delegate and the value of the courses for my future was also ignored by the Delegate as well as by the Tribunal. The overlooking of the above mentioned facts are primarily amounts to jurisdictional errors.
4.I applied a valid application for a student visa which is also acknowledged by the delegate of the Minister in the visa refusal letter. And basically it was refused by the delegate of the Minister because she was not satisfied. I strongly contest this point, as legally it was not provided in any law or regulation that the applicant should also satisfy the Delegate but it is actually the law and regulations which are to be satisfied. The applicant was a genuine student and was eligible to comply with all the conditions specified for the applied visa. As I understand, my student visa was refused by the delegate primarily on the reason that she was on the opinion that my completed vocational level study sufficient for my future career which I think is not a valid reason for any student visa refusal. "The completion of the vocational level study" reason for student visa refusal is neither legal nor logical because if this was the intention of the legislators then why they did not banned or at least mentioned clearly through legislative amendments. The irrelevant or wrong matter was basically taken by the delegate and decides the applicant case on that very reason and the Administrative Appeal Tribunal upholds the same. The finding and considering such like issues by itself is in error in law and jurisdiction. Hence, in my opinion this is a clear case of jurisdictional error because the fact in issue was not a legal or relevant fact.
5.The visa refusal decision changes my life and priorities. This decision also affected me a lot in the shape of financial, emotional and psychological loss and ultimately resulted as a great impediment in my studies and goals. The poor advices and communications by my previous agent also deteriorate my genuine case and this is clear from the detail decision of the Administrative Appeal Tribunal (Paras-11, 12 and 13). The delegate of the Minister decision was based on the inferences and not a single plausible legal evidence or reason was mentioned in the decision, but perhaps a capricious decision which is based on illegal, unreasonable opinions and perceptions. My stay in Australia is temporary as per my circumstances and there are no logical and plausible reasons that I will not be returned to my home country. My wife, parents, brothers and sisters and all other family members are the major incentives to return to my country Pakistan. The Administrative Appeal Tribunal also inserts an entirely new ground in the decision for the confirmation of visa refusal letter at Para 37 which was the breached of the visa condition 8202. This is not clear to me that how I breached this clause 8202 as well as I think this was not in the domain of the Tribunal to arise new grounds in the merit review but they are statutorily supposed to independently review or to check the validity and legality of the Delegates of the Minister decisions.
The applicant filed an affidavit in support of the amended application on 28 May 2021 (CB 17-63). The affidavit annexes:
(1)A bundle of certificates related to his education;
(2)A confirmation of enrolment dated 25 February 2021;
(3)The delegate’s decision;
(4)The Decision;
(5)Various letters attesting to the applicant’s employment in Australia; and
(6)What appears to be an untranslated and a translated copy of the applicant’s marriage certificate.
Also before the Tribunal were the following copy documents:
(1)General English Course Certificate dated 23 August 2012;
(2)Certificate IV in Business dated 13 September 2013;
(3)Diploma of Management dated 13 September 2013;
(4)Advanced Diploma of Business dated 31 January 2015;
(5)Certificate III in Commercial Cookery dated 25 July 2016;
(6)Certificate for Diploma of Hospitality dated 21 July 2017;
(7)Record of Results for Diploma of Hospitality; and
(8)Letter from Australian Careers Education Pty Ltd certifying applicant’s completion of Diploma of Hospitality dated 22 July 2017.
The Minister filed a Response to the original application in this proceeding on 8 May 2019.
The Minister also relied on written submissions filed in response to the amended application on 26 April 2024.
HEARING
The hearing of the amended application before this Court took place on 15 August 2024. The applicant appeared in person. Mr Goodwin, solicitor, appeared for the Minister.
The Court confirmed that the applicant had received the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to inform the Court of the basis on which the Tribunal made any error.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. 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.
As can be observed from the grounds of review in the amended application as set out in paragraph 17 above the written grounds are repetitive and often unclear.
The Minister, as a model litigant identified five grounds of review from the amended application. They were:
·The Tribunal failed to turn an impartial mind to its task, did not scrutinise the legality of the delegates decision and erred in applying Direction 69, in circumstances where it was not bound by it;
·The Tribunal erred because the delegate did not invite the applicant to comment before making their decision;
·The Tribunal came to an incorrect decision about whether the applicant was a genuine temporary entrant when weighing the facts before it;
·It was unreasonable for the Tribunal to find that the applicant’s completion of vocational level study weighed against the claim to be a genuine temporary entrant; and
·The applicant received “poor advices and communications by my previous agent” and that this “deteriorated the applicant’s genuine case.”
The Court invited the applicant to explain and expand on each ground of review in the amended application.
The Applicant explained that Ground 1 was a failure of the delegate to interview him or hear his explanation before making the decision to refuse a further student visa. It was submitted that the Tribunal failed to independently assess or review the delegate’s decision or consider the failure by the delegate to have an interview and consider the applicant’s explanation of his intention to return to Pakistan. Ground 2 was an extension of ground 1 and the applicant submitted that the refusal to hear his explanation was a denial of “natural justice” which also infected the decision of the Tribunal which he said did not turn a fresh or independent mind to his application for a new visa but was tainted by the decision of the delegate.
Ground 3 was explained as a failure by the Tribunal to understand that the applicant did intend to return to Pakistan upon completion of a Bachelor degree in Tourism and Hospitality Management. The applicant submitted that his track record of past study and intention to complete further study did not indicate that he was not a genuine temporary entrant intending to return to Pakistan.
Ground 4 was similar to Ground 3. The applicant submitted that completion of vocational level study leading to enrolment in a Bachelor degree course was of value and that it was wrong for the delegate and Tribunal to conclude that the Bachelor degree was of no value to his career prospects or future business plans.
Ground 5 was similar to grounds 3 and 4 but had the additional element that it was not open to the Tribunal to find that he had breached visa condition 8202 and that the explanation for his failure to comply with the conditions of his previous visa was because his agent had misled him.
In response the Minister submitted that none of the matters raised by the applicant in his explanation to the Court constituted jurisdictional error and were not supported by evidence. In relation to Ground 5 the Minister submitted that there was no evidence to support the assertion that the applicant was misled by his agent nor any credible explanation of the admitted breach of condition 8202. It was submitted that the Tribunal’s finding of a breach in paragraph [37] of the Decision was open on the evidence before the Tribunal. In particular the PRISM records produced before the Tribunal (CB 214) (Decision at [16] and [17]).
The Court has also scrutinised the amended application, the materials before the Tribunal and the Decision to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], and [100], [112] and [113]. The applicant was asked if there was any further documents or things that should have been placed before the Tribunal that were not and whether there were any other aspects of the hearing before the Tribunal that he considered unfair. There were none.
The Court also asked the solicitor for the Minister to address the question of whether there was any evidence or basis for the applicant to submit that there had been a general failure to extend procedural fairness to the applicant by the Tribunal. The Minister submitted that there was not and that any failure to accord procedural fairness by the delegate was not within the jurisdiction of the Court.
CONSIDERATION
Ground 1
An allegation of bias must be distinctly and clearly made and proven: see R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116per Dixon CJ, Williams, Webb and Fullagar JJ; and Minister for Immigration v Jia Legeng (2001) 205 CLR 507 (Jia) at [69] and [72].
Here there is no evidence to suggest that the Tribunal did not bring an impartial mind to the application before it and there is nothing to suggest any prejudgment and nor could a fair minded and informed observer conclude that the Tribunal did not approach its task with an open mind. The applicant was given repeated opportunities to provide relevant documents to the Tribunal and was represented by an agent at the hearing. The Decision reflects that the Tribunal considered all the materials and submissions made and there is no evidence of a refusal to hear the applicant or that the Tribunal was diverted by or persuaded by the reasons of the delegate. The applicant could not identify any further documents or evidence that were not before the Tribunal and upon which he would have sought to rely.
The Tribunal carefully considered all of the applicant’s documents and submissions and assessed those in a fair and impartial manner: see SZRUI v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2013] FCAFC 80 at [22] and [29] and Jia.
Ground 2
This ground, as put by the applicant, is confusing and is repetitious of the first ground. In the amended application it is alleged that the applicant was “not heard by the Delegate” and was “condemned unheard at the time of visa refusal by the Delegate”. This confuses the role of the Tribunal which was to consider the application for the Visa afresh and make a new decision based on the materials before it (Decision at paragraph [5]). There was no error by the Tribunal in that regard.
It is further alleged that the Tribunal denied the applicant “Natural Justice” by overlooking the conduct of the delegate. Again, this misconstrues the role and function of the Tribunal and does not identify jurisdictional error by the Tribunal. The Tribunal correctly identified its role at paragraph [5] of the Decision.
The conduct of the delegate was not a relevant consideration which was overlooked by the Tribunal because the Tribunal was not required to consider that conduct and did not do so in reaching a new decision.
Ground 3
The Tribunal clearly considered all of the courses undertaken by the applicant and that the applicant had recently enrolled in a Bachelor of Tourism and Hospitality Management degree course (Decision at paragraph [29]). However, it was not persuaded that enrolment in that course was consistent with an intention to return to Pakistan or to establish a business in Pakistan. Further the Tribunal held, that completion of a Bachelor degree would not add significant value to the applicant’s career prospects (Decision at paragraph [30]) That conclusion was clearly open to the Tribunal and consistent with the proper application of Ministerial Direction 69. I can find no jurisdictional error by the Tribunal on this ground.
Ground 4
This ground is also confusing. It appears to suggest that the delegate failed to act in accordance with law or applied a wrong legal principle. There is also an allegation that the conclusion reached by the delegate and Tribunal was “neither legal nor logical” which appears to be a broad allegation of “unreasonableness” amounting to jurisdictional error: see BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 at [34].
The Tribunal identified the legal issue to be determined, namely whether the applicant satisfied clause 500.212 of the Regulations and the level of satisfaction required by that regulation (Decision at paragraphs [5] – [7]) and the role of the Tribunal (Decision at paragraph [9]). The Tribunal then considered the evidence and materials presented to it and drew available inferences from that material.
There is nothing in the reasoning of the Tribunal that suggests an illogical, irrational or unreasonable decision. The conclusions reached by the Tribunal at paragraphs [37] and [38] of the Decision were open on the evidence before it and there was a logical connection between the evidence before the Tribunal and the inferences and conclusions drawn from that evidence: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [132]-[135]. No error arises in relation to that ground.
Ground 5
This ground also refers to the conduct of the delegate. To the extent that an allegation is made about the Tribunal it is said that the Tribunal “inserts an entirely new ground in the decision for the confirmation of visa refusal letter at Para 37 which was the breach of the visa condition 8202”. The applicant then says, “This is not clear to me that how I breached this clause 8202 as well as I think this was not in the domain of the Tribunal to arise new grounds in the merit review…”.
The breach of condition identified by the Tribunal was a failure to enrol in an appropriate course of study for a period of 10 months. This was referred to in paragraphs [16] and paragraph [17] of the Decision. At the hearing the Court asked the applicant if he was in breach of condition 8202 and he agreed that he was. He claimed that this was due to his agent misleading him. However, as was the case before the Tribunal, the applicant had no evidence to support how or why he had been misled by his agent.
In Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061, Chief Justice Allsop of the Federal Court of Australia considered cl 500.212 of sch 2 to the Regulations and set out the criteria to be satisfied by the delegate and the Tribunal when considering that regulation. At paragraph [14] his Honour set out the terms and structure of cl 500.212 and the three distinct criteria required to be considered one of which is the applicant’s intention to comply with any visa conditions. The Tribunal was bound to consider the applicant’s intention in that regard and did so at paragraph [37] of the Decision after identifying and stating the relevant test at paragraph [7]. It did so based upon the record of compliance of the applicant as it was entitled to do (clause 500.212 (b)(i)) and any other relevant matter (clause 500.212 (c)) when reaching a conclusion as to the applicant’s stated intentions.
The consideration of visa condition 8202 was not a “new ground in the merit review” but a relevant consideration which the Tribunal correctly identified. The applicant did not identify any evidence before the Tribunal that the Tribunal failed to consider when considering his explanation of why he had breached the conditions of his previous visa. Therefore, it was open to the Tribunal to conclude as it did in paragraph [37] of the Decision that the applicant did not have the requisite intention to comply.
This ground must also be rejected.
For completeness, although the applicant did not expressly submit that the Tribunal exercised its discretion in a legally unreasonable way, after a critical review of the Decision by this Court, it could not be held that “no sensible authority acting with due appreciation of its responsibilities” would have exercised its discretion as it did: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71]. Further, the Tribunal’s decision to exercise the discretion as it did, had an “evident and intelligible” foundation (Li, at [76]) such that the Decision cannot be properly characterised as a legally unreasonable decision. It was reasonably open to the Tribunal to balance competing considerations in the exercise of its discretion as it did.
Further there is no evidence before this Court or material in the Court Book to suggest any failure to extend procedural fairness to the applicant by the Tribunal.
At the conclusion of the hearing before the Court the solicitor for the Minister informed the Court that the name of the first respondent should be amended to “Minister for Immigration and Multicultural Affairs”. Pursuant to Rule 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the name of the first respondent and the title to this proceeding shall be amended accordingly.
The solicitor for the Minister also sought the Minister’s legal costs of the proceeding on the applicable scale.
CONCLUSION AND ORDERS
The name of the first respondent and the title to this proceeding is amended to Minister for Immigration and Multicultural Affairs.
The application and amended application is dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $8,371.30.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 12 September 2024
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