Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 267
•22 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 267
File number(s): MLG 555 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 22 March 2024 Catchwords: MIGRATION – Where primary visa applicant did not have a standard business sponsor at time of Tribunal decision – remnant costs issues following late withdrawal of applicants’ solicitor prior to final hearing necessitating adjournment Legislation: Migration Act 1958 (Cth) ss 359A, 359B, 379G, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 9.01, 22.06
Federal Circuit Court Rules 2001 (Cth) Division 11.2
Migration Regulations 1994 (Cth) regs 2.72, cls 457.223 and 457.321 of Schedule 2
Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 338 ALR 551
Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1159
Minister for Immigration and Citizenship v SZLIX(2008) 100 ALD 443
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 23 November 2023
29 January 2024Place: Sydney The Applicants: In person Counsel for the Respondents: Ms S Liddy, Sparke Helmore ORDERS
MLG 555 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BINU KUMARAN KUNIYIL
First Applicant
BIJU SCARIA BIJU SCARIA
Second Applicant
GAVIN BIJU ZACHARIA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 6 March 2018 is 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 GIVEN:
Before the Court is an application brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act) filed on 6 March 2018, by which the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 12 February 2018 which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant a Temporary Business Entry (Class UC) (Temporary Work) (Skilled) (Subclass 457) visa (visa).
On 23 November 2023, this Court delivered interlocutory reasons underpinning orders which adjourned the final hearing of the proceedings, in circumstances where the applicants’ solicitor had purported to withdraw as their lawyer the day before that hearing: see Kuniyil v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1159 (interlocutory judgment).
BACKGROUND
The following background and summary of the Tribunal’s decision are primarily derived from the written submissions of the first respondent and the Court Book. Unless otherwise indicated, they do not appear to be in dispute.
On 21 October 2015, the first applicant applied for the visa and by her application, listed GeorgiaMaria Pty Ltd trading as Olive Beauty Hub (Company) as her prospective employer, with a nominated occupation of hairdresser. The second and third applicants (who are the applicant’s husband and child) applied as members of her family unit. The applicants appointed their migration agent as their authorised recipient (Court Book (CB) 1 to 43).
On 26 November 2015, a delegate of the first respondent refused the Company’s nomination application (delegate’s nomination decision).[1] On the same date, the delegate wrote to the applicants inviting comment on information that the Company did not have an approved nomination (CB 44 to 48).
[1] Affidavit of Samantha Liddy affirmed 27 January 2023at 4 to 8
On 21 January 2016, the applicants’ representative responded, saying he was instructed not to withdraw the visa application and requesting that the Department proceed to make a decision on the visa application (CB 53 to 56).
On 25 February 2016, the delegate refused to grant the applicant the visa on the basis that she did not satisfy the requirements of cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the Company, being her prospective employer, did not have an approved nomination. The delegate found the secondary applicants therefore also did not satisfy cl 457.321 of the Regulations (CB 57 to 64).
On 11 March 2016, the applicants applied to the Tribunal for review of the delegate’s decision and again appointed their migration agent as their authorised recipient (CB 65 to 67).
On 29 November 2017, the Tribunal invited the applicants (via their authorised recipient) to attend a hearing scheduled for 14 December 2017. The hearing invitation requested that the first applicant provide evidence that she was the subject of an approved nomination required to satisfy cl 457.233(4)(a) (CB 72 to 76).
On 8 December 2017, the applicants’ representative submitted a response to hearing invitation form, indicating the applicant would attend the scheduled hearing (CB 77 to 84). On 13 December 2017, the applicants’ representative also provided written submissions (CB 85 to 91).
On 14 December 2017, the applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of her migration agent. The hearing was a combined with a hearing of the application made by the Company for review of the nomination decision. A Mr George Bittu gave evidence on behalf of the Company (CB 93 to 95 and 104 at [5]).
On 5 January 2018, the Tribunal affirmed the decision not to approve the nomination (Tribunal’s nomination decision)[2]. On 8 January 2018, the Tribunal wrote to the applicants pursuant to s 359A of the Act, inviting them to comment on the effect of the Tribunal’s nomination decision, by 22 January 2018 (CB 96 to 99). The applicants did not respond in the time required, or at all.
[2] Affidavit of Samantha Liddy filed 27 January 2023 at 10 to 18
On 12 February 2018, the Tribunal affirmed the delegate’s decision to not grant the visa (CB 100 to 110).
Tribunal decision
The Tribunal identified the issue for determination as being whether the applicant satisfied
cl 457.223(4)(a) of the Regulations (CB 104 at [8]).By reference to the Tribunal’s nomination decision, the Tribunal found the first applicant did not satisfy cl 457.223(4)(a) of the Regulations, which required that she have a standard business sponsor (CB 104 at [10] and 109 at [35]).
The Tribunal found there was no evidence that the second and third applicants satisfied cl 457.321 because as they were not members of the family unit of a person who was the holder of the visa (CB 109 [36]).
Accordingly, the Tribunal concluded that the requirements of cl 457.223(4)(a) were not met, and affirmed the decision under review (CB 109 to 110 at [38] to [41]).
APPLICATION FOR REVIEW
These proceedings were commenced by an application to show cause filed with the Court on 6 March 2018.
The proceedings were initially docketed to a Judge of this Court (first primary Judge).
Consent orders provided to the Court in 2019 for the future conduct of the matter included an order pursuant to Division 11.2 of the (then applicable) Federal Circuit Court Rules 2001 (Cth) (FCCA Rules), that the first applicant be appointed litigation guardian for the third applicant who, at that time was 14 years of age (2019 consent orders). A review of the Court file reveals that, for some reason, those orders were not entered.
On 28 February 2022, the Registry appears to have noticed that the 2019 consent orders had not been entered, and to have written to the parties as follows:
I refer to the above matter and the First Court Date listed before Registrar Burns on 6 February 2019. The Court notes that no orders were entered following this listing.
The Court would be grateful if the parties could please provide a copy of any signed orders that were entered into for this First Court Date so that they may be sealed by the Registrar.
The 2019 consent orders were sealed by the Registry and entered on 1 March 2022 (March 2022 Orders), despite the fact that the FCCA Rules were no longer in effect.
At some stage between 2019 and 2022, the proceedings were placed in the central migration docket where they remained until 29 March 2022, when they were re-docketed to a different Judge of the Court (second primary Judge). On 10 November 2023, due to the unavailability of the second primary Judge, the matter was re-docketed to me, and I made orders shortly thereafter listing the matter for final hearing on 23 February 2023, via Microsoft Teams. As was explained in the interlocutory judgment, I initially held the proceedings in abeyance pending the determination by the Full Court of the Federal Court of Australia in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (Singh). On 7 August 2023, the Singh judgment was delivered, and I brought the proceeding back before me for directions on 31 August 2023. At the directions hearing, I made orders which listed the proceedings for hearing on 23 November 2023 (November hearing) together with a timetable for the preparation of the matter.
The events which followed, and the conduct of the November hearing are set out at [4] to [34] of the interlocutory judgment. At the conclusion of the November hearing, I made orders (November Orders) which listed the matter for hearing at 10:15am on 29 January 2024 (by Microsoft Teams), set a new timetable for the preparation of the matter for hearing and reserved the question of costs of the adjournment, including any question arising in respect of a costs order to be made pursuant to r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
By the November Orders, leave was also granted to the applicants to file and serve any amended application and Affidavit evidence in respect of the review and/or the question of costs, together with written submissions. Additionally, the solicitor for the applicants was granted leave to file and serve any Affidavit material in respect of the question of costs.
No further material was filed by (or on behalf of) the applicants in time, or at all. No Affidavit evidence was filed by the applicants’ former solicitor pursuant to the grant of leave in the November Orders, or at all.
On 29 January 2024, the parties appeared before me for hearing, via Microsoft Teams (because the applicants reside in Victoria, and the Court presided from Sydney). The first and second applicants were assisted by an interpreter in the Malayam language who was present in the Court room. The first respondent was represented by a solicitor. The connection to the Microsoft Teams forum appeared clear throughout and, despite some minor difficulties at the beginning of the hearing (remedied by the interpreter’s use of the ‘hearing loop’) the parties, interpreter and the Court appeared to have no issue in understanding one another.
At the commencement of the hearing, I sought to establish whether the applicants’ former solicitor was in the Microsoft Teams forum. There was no response, nor was there visibly any additional account connected to the hearing. I had the matter called outside the Court room out of an abundance of caution, in the unlikely event the former solicitor had attended in person. That call also yielded to response. The Court is satisfied that the applicants’ former solicitor was on notice of the final hearing and that the issue of costs reserved from the hearing adjourned on 23 November 2023, would be addressed on that occasion. The Court is satisfied that, for whatever reason, he did not wish to attend or be heard in respect of costs.
Early in the hearing, the second applicant asked for “some more time to make the application in English”.[3] I asked whether this was intended to be an application for a further adjournment. The applicants confirmed they were seeking an adjournment because they did not have a lawyer. The adjournment request was opposed by the Minister, on the basis that this was the second hearing of the matter and the application had been on foot for nearly 6 years.
[3] Transcript 29 January 2024 at T09.26 to T09.27
The adjournment was refused. The Court was satisfied that the applicants have had an ample time to prepare their application. While noting the unfortunate timing of the purported withdrawal by their lawyer on the last occasion, the Court sought to remedy any potential prejudice to the applicants occasioned by that withdrawal by adjourning the November hearing. Despite there being several intervening months in which the applicants could then have prepared for themselves or sought alternative representation if that was their preferred course, they had apparently done neither, nor had they filed any further documents. It is well established that there is no right to legal representation in migration proceedings: see AMF15 v Minister for Immigration and Border Protection (2016) 338 ALR 551 at [51] per Flick, Griffiths and Perry JJ and SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J. I was also not satisfied that any language barrier (particularly where the primary applicant is reasonably fluent in English) was a sufficient explanation for why the applicants were allegedly unprepared.
Accordingly, the hearing proceeded.
Grounds of Review
By the originating application filed on 6 March 2018, the applicants raise nine grounds of review. The first respondent submits that ground 9 is not a proper ground of review, noting that it simply reserves the applicants’ right to amend their originating application with the benefit of legal advice, something which they have been given leave to do on more than one occasion yet never availed themselves of those grants even when they were legally represented. I agree that ground 9 does not allege any error in respect of the Tribunal decision.
The remaining eight grounds of review are as follows (errors in original):
1.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence when come to a conclusion that the position associated with the nominated occupation is not genuine and affirmed the decision not to grant the applicant Temporary Business Entry visa.
2.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law when come to a conclusion that the position associated with the nominated occupation is not genuine and subsequently dismissed the applicant's application.
3.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by Georgia Maria Pty Ltd and summarily dismissed the Applicant's application for review.
4.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicants application.
5.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the evidence presented by the Georgia Maria Pty Ltd did not satisfy the requirements of the Migration Act 19 58 and the in regulation 2. 72 of the Migration Regulations 1994 (Cth). which evidence the Tribunal failed to and/or failed to properly consider;
6.The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question(s); in deciding the review application for nomination
7.The Administrative Appeals Tribunal fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances of the case; in deciding the review application for nomination
8.The Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case
At hearing, after explaining the role and jurisdiction of the Court and the form the hearing would take, grounds 1 to 8 were interpreted to the applicants, and they were given the opportunity to address them in turn.
Grounds 1 and 2
It is convenient to group grounds 1 and 2 together.
Ground 1 alleges the Tribunal erred by taking into account irrelevant considerations in concluding that the position associated with the nominated occupation was not genuine. Ground 2 essentially inverts ground 1 by alleging that the Tribunal did not take into account relevant matters when reaching its conclusion that the nomination occupation was not genuine.
At hearing, when asked about these grounds, the first applicant appeared to contend that the visa was “cancelled”[4] because she had only worked 20 hours as a student. When asked what the legal error was, the first applicant said that “my legal aid didn’t inform me…that I can work more hours”[5] and repeated that, from her understanding, the visa was “cancelled just because I worked only 20 hours as a student”.[6] The first applicant said that when she received her visa she was not told by her lawyer that she could work full-time.
[4] Transcript 29 January 2024 at T11.03, T11.06
[5] Transcript 29 January 2024 at T11.19 to T11.20
[6] Transcript 29 January 2024 at T11.32
In relation to ground 2, the applicants essentially repeated their submissions in respect of ground 1.
To the extent that these grounds seek to challenge the Tribunal’s nomination decision, this is misconceived. The Tribunal’s nomination decision is not the decision under review in these proceedings and the applicants do not in any event have standing to seek review of it: see ss 478(a) and 479(a) of the Act and Singh (supra) at [73] to [101] per O’Sullivan J and [205] per Raper J. Further, the Company has not sought judicial review of the Tribunal’s nomination decision in this Court.
The first respondent submitted that, contrary to the applicants’ allegation, each of the Tribunal decisions found the employment position of hairdresser was, in fact, genuine and that reg 2.72(10)(f) of the Regulations was met (CB 108 at [32])[7]. Insofar as these grounds might be interpreted as asserting the Tribunal took irrelevant considerations into account, or failed to consider the Company’s evidence in relation to the decision under review, there are no particulars to give any context to it and the applicants have not articulated what the alleged irrelevant considerations were.
[7] See also [22] of the nomination decision
The first respondent says that the issue before the Tribunal was whether the applicant had an approved nomination as required by cl 457.223(4)(a), and that the evidence of Mr George Bittu on behalf of the Company, was not relevant to that issue. The first respondent said the Tribunal considered the available evidence in relation to whether cl 457.223(4)(a) was satisfied (noting the applicant did not respond to the Tribunal’s s 359A letter (CB 105 [11]), and found there to be no approved nomination.
I agree with the first respondent that the above finding was open to the Tribunal on the evidence available to it. In the absence of the applicants being able to particularise which considerations in the Tribunal’s reasons were said to be irrelevant, the grounds cannot otherwise be made out.
Grounds 3 and 5
It is also sensible that grounds 3 and 5 be considered together. Ground 3 contends the Tribunal failed to properly consider the evidence of the company. Ground five also contends that the Tribunal erred by finding that the Company’s evidence did not satisfy the requirements in the Act and in reg 2.72 of the Regulations.
At hearing, the first applicant said in relation to this ground that she was “just an employee”[8] and did not know much about the employer.
[8] Transcript 29 January 2024 at T13.02
The first respondent made the same submission as [41] above in relation to these grounds.
As with grounds 1 and 2, I also agree with the first respondent that in the absence of the applicants being able to particularise this ground in any meaningful way, it does not give rise to any error. The submissions of the applicant to the effect that she was “just an employee” do not further the ground in circumstances where the allegation is said to the be that the Tribunal failed to properly consider the Company’s evidence. That allegation does not go to the applicant’s knowledge of the Company, but rather to the manner in which the Tribunal considered its evidence. In that regard the applicants have not explained which aspect of the evidence of the Company (to which they were privy) was not considered by the Tribunal.
Accordingly, grounds 3 and 5 do not establish error.
Ground 4
Ground 4 contends the Tribunal “misapplied the facts, law, regulations, policy and guidelines” in deciding the application before it.
When asked about ground 4, the first applicant said that the visa did not specify more than 20 hours. In addition, the applicants said the following:[9]
The visa application says only 20 hours. 20 hours. But I was not informed that I need to work 40 hours and I understand the visa was cancelled just because I didn’t work 40 hours per week.
[9] Transcript 29 January 2024 at T13.38 to T13.40
The first respondent repeated the submission at [41] above, saying that the Tribunal correctly identified the central issue in this matter as being whether the applicant had an approved nomination as required by cl 457.223(4)(a). The first respondent also says the Tribunal correctly applied that provision and the finding that cl 457.223(4)(a) was not satisfied was open to the Tribunal on the available evidence.
Absent any meaningful content, this ground cannot be established. If, by the submissions in relation to the applicant’s misunderstanding about her working hours, some suggestion was being made to the effect that the applicants were somehow mis-advised in respect of the review there are no particulars, let alone evidence, which would rise to the level of establishing a requisite fraud on the Tribunal. Mere negligence would be insufficient to invalidate the decision: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 and Minister for Immigration and Citizenship v SZLIX(2008) 100 ALD 443.
Ground 6
Ground 6 contends the Tribunal misconstrued or misapplied the law or failed to ask itself the right question.
When asked about ground 6, and in what way the Tribunal had misapplied the law or failed to ask itself the right questions, the applicant said that the Tribunal:[10]
asked me why I worked only 20 hours and I understand that that is the visa conditions, that in the recent – they didn’t ask me this based on the visa conditions.
[10] Transcript 29 January 2024 at T14.28 to T14.30
In respect of this ground, the first respondent repeats the submission set out at [50] above.
To the extent that the applicants are seeking to challenge the Tribunal’s findings, the fact that they claim to have had limited knowledge of the inner workings of the Company does not intersect with the alleged error on the part of the Tribunal, being that it asked itself the wrong question. In this regard, the findings from [46] above are relevant here also.
To the extent that that further submissions were made by the applicants regarding their understanding of work requirements, I repeat the findings at [51] above.
This ground is not made out.
Ground 7
Ground 7 contends that the Tribunal failed to act in a manner which was fair and just.
When asked about ground 7 at hearing, the applicants said that the Tribunal acted unfairly because its “objection” was based on reasons beyond their understanding.
Having interpreted this ground as an allegation of denial of procedural fairness, the first applicant says the Tribunal complied with Part 5, Division 5 of the Act, that the applicants were invited to attend a scheduled hearing in accordance with ss 360 and 360A of the Act, which the first applicant attended with the assistance of her agent. The first respondent says the applicants were on notice from the delegate’s decision that whether the first applicant met cl 457.223(4)(a) of the Regulations would be the determinative issue on review, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [37] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The first respondent also observes that the Tribunal complied with its s 359A obligation by putting the outcome of the nomination decision to the applicants for comment by its letter dated 8 January 2018 (CB 96 to 99).
If this ground is directed to procedural fairness, then I agree that the Tribunal’s letter of 8 January 2018 complied with ss 359A and 359B of the Act by:
(a)
setting set out the relevant information, namely that on 5 January 2018 the Tribunal affirmed the decision not to approve the nomination made by the Company: see
s 359A(1)(a) of the Act;
(b)explaining why that information was relevant to the review: s 359A(1)(b)) of the Act;
(c)inviting the applicants to comment on the information within the prescribed period of time: see ss 359A(1)(c) s 359B(1) and 359B(2)) of the Act; and
(d)having correctly sent the letter to the email address of the applicants’ authorised recipient: see ss 359A(2) and 379G of the Act.
The first respondent thereafter observes that the remainder of the material upon which the Tribunal relied was:
(a)written information provided by the applicant to the Department;
(b)the first applicant’s written and oral evidence to the Tribunal; and
(c)the information contained in the delegate’s decision which the applicant provided to the Tribunal.
The material as set out above came within the ambit of the exceptions to “information” contained in ss 359A(4)(ba) and 359A(4)(b) of the Act. The Tribunal’s subjective appraisals of the applicant’s evidence also did not constitute “information” for the purposes of the Act: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
If, by this ground, the applicants simply take issue with the Tribunal’s reasons for decision, and were unable to understand them, that does not give rise to any error, in and of itself. The reasons are both comprehensible and comprehensive.
For the foregoing reasons I am not satisfied that there is an error of the kind alleged by ground 7.
Ground 8
By their final[11] ground, the applicants contend that the Tribunal’s decision was unreasonable.
[11] See [28] above
At hearing, the applicants reiterated that they thought the first applicant only had to work 20 hours, rather than working full time.
Following the applicant’s oral submissions, the second applicant asked for “one more chance”.[12] To the extent that was a further adjournment request, it was refused.
[12] Transcript 29 January 2024 at T22.08
In respect of this ground, the first respondent again cites the lack of particulars (including by reference to the submissions made at hearing by the applicants) as rendering this ground meaningless.
I agree with the first respondent’s submissions that a beneficial reading of ground 8 might be taken to constitute a challenge to the Tribunal’s nomination decision. However, as set out at [39] above, the applicants do not have standing in respect of that decision. In the event the allegation is intended to be directed to the Tribunal decision which is under review in these proceedings, the first respondent says again that the Tribunal’s finding that cl 457.223(4)(a) had not been satisfied was the only decision open to it on the available evidence.
I agree with submissions made for the first respondent that the Tribunal did consider the evidence before it, and assessed that evidence by reference to the relevant statutory framework.
The applicants are clearly dissatisfied with the Tribunal’s ultimate conclusions. However, provided the findings were open to it based on rational reasons, arrived at by considering logically probative matters, their own personal dissatisfaction with the conclusions does not render the decision unreasonable in the legal sense. I am not satisfied that the conclusions reached by the Tribunal were such that no other rational or logical decision maker could have reached them.
I agree with the submission of the first respondent that, far from demonstrating legal unreasonableness, the Tribunal’s decision was the only decision open to it.
Accordingly, I am not satisfied that the error alleged by ground 8 has been established.
Prior to concluding, there are two remaining issues to address.
FUTILITY
The first respondent drew the Court’s attention to the fact that the sponsor Company, GeorgiaMaria Pty Ltd, was deregistered by the Australian Securities and Investments Commission (ASIC) on 14 April 2020.[13]
[13] Affidavit of Samantha Liddy affirmed 26 October 2023 at [3]
In those circumstances, the Company is unable to challenge the nomination refusal (which in any event, at present, remains undisturbed). As such, any Tribunal on remittal would be bound to affirm the delegate’s decision. Accordingly, the applicant could not be granted the visa. Accordingly, even if I was wrong about any of the grounds above, and the Tribunal had committed jurisdictional error, relief would be refused in the exercise of the Court’s discretion.
COSTS
In the circumstances set out in the interlocutory judgment, the question of costs thrown away occasioned by the adjournment of the first hearing on 23 November 2023 was reserved, and notice given for the purposes of r 22.06 of the Rules to the applicants and their former solicitor.
No further material has been received from the applicants’ former solicitor, nor did he attend at the final hearing of the matter to be heard on costs (see [28] above).
At the final hearing, the Court re-explained the effect of the interlocutory judgment to the applicants and asked them what they wished to say about whether costs wasted by the Minister in relation to the adjournment should be paid and, if so, by whom.
Submissions were made by the first and second applicants which related to the circumstances of the withdrawal of their solicitor. While made from the (virtual) Bar table only, and not the subject of formal evidence, I am prepared to accept the applicants’ explanation which can be summarised as follows. The applicants say they are supporting their daughter[14] in her studies. The fees pertaining to those studies are said to be onerous, and the applicants say they could not, in addition to those fees, afford the fees their former solicitor was requesting. The applicants made the decision, in the days leading up to the first hearing that they did not wish for the solicitor to represent them.
[14] Notwithstanding the fact that the third applicant is the son of the first and second applicants, the transcript only records reference to a daughter
As the Court said in the interlocutory judgment at [23]:
…if it were the case that the applicants wished to terminate the solicitor’s services, then the manner by which that was to be notified to the Court was by the applicants filing a new Notice of Address for Service which, pursuant to r 9.01(2), would have had the effect of replacing the solicitor instantly, with the applicants then being self-represented from that point forward. That did not occur.
Accepting the applicants’ explanation as now given to the Court, the adjournment might have been obviated if they, desirous as they were to dismiss their lawyer, had simply complied with r 9.01(2) of the Rules. Their solicitor should have known that this was the appropriate mechanism in the circumstances by which he should exit the proceedings and that this would signify to the Court that the applicants had terminated his representation of them. In any event, I am prepared in the aforementioned circumstances to accept that the responsibility for adjournment lies with the applicants and, thus too, does any costs liability.
The solicitor for the first respondent conveyed her instructions that the Minister did not wish to make an application for costs in respect of the adjourned hearing to be paid by anyone other than the applicants. The first respondent’s solicitor foreshadowed that in the event the application were dismissed, the Minister would likely seek an order for costs in the scale amount.
I will hear the parties as to costs on the basis that any costs to be ultimately sought by the first respondent are to be sought against the applicants only, which in the present circumstances, I accept is appropriate.
Relevant to the remaining costs issue, and against whom any order should be made is the effect, (if any) of the 2019 consent orders (see [20] to [22] above). At the time the March 2022 orders were made, the third applicant was 17 years of age, but only several months from attaining majority (having been born in May 2004). Leaving aside the issue of having purportedly been made under the FCCA Rules, the question remains as to whether a litigation guardian order would remain appropriate in circumstances where the third applicant is now almost 20 years old, prior to dealing with any costs application.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 March 2024
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