Loga v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1518
•12 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Loga v Minister for Immigration and Citizenship [2025] FedCFamC2G 1518
File number(s): SYG 1586 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 12 August 2025 Catchwords: MIGRATION – Whether Tribunal erred by misconstruing the term “reasonably practicable” for the purposes of reg 1.04(2)(c)(i)(B) of the Migration Regulations 1994 (Cth) Legislation: Migration Act 1958 (Cth) ss 5CA, 198
Migration Regulations 1994 (Cth) rr 1.03, 1.04
Cases cited: M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146
Marshall v Gotham Co Ltd [1954] AC 360
Slivak v Lurgi (Aust) Pty Ltd (2001) 177 ALR 585
Division: General Federal Law Number of paragraphs: 50 Date of hearing: 12 August 2025 Place: Sydney Solicitor for the Applicant: In person Solicitor for the Respondent: Mr Fyfe, MinterEllison ORDERS
SYG 1586 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MERE SENIGIGIA LOGA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 AUGUST 2025
THE COURT ORDERS THAT:
1.The application filed 20 August 2021 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $5,900.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021(Cth), orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011(Cth), will also be taken to be the date upon which the judgment was pronounced.
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 typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04 of the Rules.
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 20 August 2021 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate of the first respondent to not grant the applicant an Other Family (Residence) (Class BU) (subclass 835) visa (visa).
BACKGROUND
The applicant is a female citizen of Fiji, who was born on 2 February 1994. On 5 December 2017, the applicant filed an application for the visa on the basis that she was the remaining relative of her uncle and aunt because she claims to be their adopted child (Court Book (CB) 18 to 39). In support of the visa application, the applicant provided a judgment of the Family Court of Fiji dated 27 October 2016, by which a magistrate ordered that the applicant's uncle and aunt were authorised to adopt her (CB 68 to 75). At the date of that judgment, the applicant was 22 years old.
On 5 December 2017, a delegate of the first respondent refused to grant the applicant the visa, finding that the relationship between the applicant and her uncle was not a parent-child relationship for migration law purposes, and that the applicant was therefore not the remaining relative of an Australian relative (CB 119 to 123). Accordingly, the applicant did not meet cl 835.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 26 September 2018, the applicant sought review of the delegate's decision by the Tribunal and provided submissions with her application to the Tribunal addressing why, in her view, the delegate's decision was incorrect (CB 107 and CB 124).
On 2 July 2021, the Tribunal invited the applicant to appear before it to give evidence and present arguments (CB 139 to 143).
On 20 July 2021, the applicant's representative provided submissions and a statement from the applicant's uncle which annexed an Affidavit filed in the adoption proceeding in Fiji (CB 167 to 181).
On 21 July 2021, the applicant appeared before the Tribunal. The applicant's uncle and aunt were also called as witnesses and gave oral evidence to the Tribunal (CB 182 to 185).
On 22 July 2021, the Tribunal affirmed the decision under review (CB 193 to 202).
Tribunal Decision
The Tribunal noted that visa application was made on the basis that the applicant was the remaining relative of her uncle, whom the applicant claimed to be her Australian relative for the purposes of the visa criteria and confirmed that the applicant's uncle did have the right to permanently reside in Australia (CB 197 at [20] to [21]). The Tribunal identified the relevant legislation (CB 198 to 199 at [22] to [27]) and noted that it was not in dispute that the applicant's uncle and aunt did not apply to adopt the applicant in Fiji until 3 February 2015 (CB 199 at [28]). The Tribunal further noted the adoption order was not made until 14 October 2016, at which time the applicant was 22 years old. It further observed that there was no assertion advanced that the adoption order had been made in accordance with any law of the State or Territory of Australia (CB 199 at [28]).
The Tribunal did not accept the applicant's argument that, because the uncle and aunt had assumed a parental role since her birth, the adoption order was simply a recognition of that assumption and it should therefore be accepted the applicant had been in fact adopted immediately after her birth (CB 199 at [29]). The Tribunal found there was nothing to indicate that the applicant's biological parents did not continue to be recognised as her parents under Fijian law until the time the adoption order was made. The Tribunal observed that the applicant travelled with her biological mother to the United States in 2010, and remained there with her when the biological mother applied for a further visa. The Tribunal further noted the applicant's Fijian birth certificate was amended only after the adoption order was made in 2015 (CB 199 at [31]). The Tribunal did not accept that the applicant was adopted by her uncle and aunt in accordance with the requirements of sub-reg 1.04(1)(b) of the Regulations, because she had attained the age of 18 years prior to any application being made for her adoption (CB 199 at [32]).
The applicant alternatively argued (for the purpose of sub-reg 1.04(1)(c) of the Regulations) that the Tribunal should find that she was customarily adopted in accordance with the usual practice, recognised custom or culture of Fiji. The Tribunal noted that there was nothing to demonstrate that the adoption procedures accessed by the applicant's uncle and aunt to adopt the applicant had not been available in Fiji since the birth of the applicant (CB 200 at [35]). Nor had the applicant previously made a claim to this affect. The Tribunal had regard to a claim by the applicant that it had not been reasonably practicable in the circumstances for the applicant's uncle and aunt to adopt her while they were living in Fiji. This was said to be because the applicant's aunt was working as a teacher in the Lau Islands and they did not have access to a lawyer or to the court system of Fiji (CB 200 at [36]). The Tribunal rejected this, noting that the applicant's aunt only worked in the Lau Islands, until 2003, and there was evidence of that they would return to Suva three times a year, during school holidays. The Tribunal found there was nothing to indicate that during those visits they could not have made appropriate arrangements to formally adopt the applicant if they chose to do so (CB 200 at [37]).
The Tribunal further noted that the applicant's uncle and aunt had been able to remotely arrange to formally adopt her in Fiji, while living in Australia, which indicated that it would have been reasonably practicable in all the circumstances to take the steps to formally adopt the applicant while in the Lau Islands also, if they had chosen to do so (CB 200 at [38]). The Tribunal found there was nothing to indicate that in the period from 2003 to 2011 (when the applicant's uncle and aunt were living in Suva) it would not have been reasonably practicable under the circumstances for the sponsor and his wife to formally adopt the applicant. The Tribunal found the only reason the applicant's uncle and aunt did not take any action to formally adopt the applicant was because they did not consider it necessary to do so. That was found to be because the extant arrangement between the applicant's uncle and mother was simply that he and his wife would care for the applicant. The Tribunal rejected the claim that the applicant's uncle and aunt did not consider it necessary to formally adopt the applicant, as meaning that it was not reasonably practical for the them to access the laws of adoption in Fiji (CB 200 at [39]).
The Tribunal found that, for the purpose of the review, the applicant was not adopted by her uncle and aunt and, therefore, was not the child of the uncle as defined in s 5CA of the Migration Act 1958 (Cth) (Act) (CB 200 at [40]).
Accordingly, reg 1.15(1) of the Regulations was not found to be met (CB 201 at [42]). The Tribunal further found reg 1.15(1)(d) of the Regulations was not met because the applicant was aged over 18 years of age (at CB 201 at [42]).
The Tribunal was not satisfied that the applicant was the remaining relative of an Australian relative at the time of application and at the time of decision for the purposes of cll 835.212 and 835.221 of Schedule 2 of the Regulations (CB 201 at [43]).
APPLICATION BEFORE THE COURT
At the time that the proceedings were commenced, the applicant was legally represented. That representation ceased on 18 July 2025, upon the filing of a Notice of Withdrawal of a Lawyer by her lawyer.
The proceedings have been in the Court's central migration docket since their inception. On 16 September 2021, a Registrar of the Court made orders by consent for the preparation of the matter for hearing. By those orders, the applicant was given leave to file an amended application by 9 December 2021. Perhaps unsurprisingly in circumstances where her legal representatives had represented her since the commencement of the proceedings, and had drafted the originating application, that grant of leave was not taken up.
The proceedings remained in the central migration docket until when, on 3 June 2025, they were docketed to me and I made orders on that date listing them for hearing before me this morning (June Orders). As part of those orders, the applicant was again granted leave to amend. As noted, the applicant's legal representatives withdrew from the proceedings between the making of the June orders and the hearing this morning. Notwithstanding that withdrawal, the applicant did not avail herself of the opportunity to further amend. However, on 6 August 2025, a number of documents were filed for the applicant.
The applicant appeared before me this morning for hearing, in person. An interpreter in the Fijian language has been present throughout the hearing, although the applicant indicated to me that she is fluent in English, which she has demonstrated during the hearing by making eloquent submissions. The interpreter has remained at my request in the event that the applicant wished to use her services, but that did not come to be necessary.
At the commencement of the hearing, I identified the relevant documents on the Court file. The first respondent’s solicitor tendered the Court Book, which was received and marked as Exhibit “1R”.
As noted, the applicant filed a number of documents quite recently and after the filing of the first respondent's written submissions, the latter of which were filed in time. On 6 August 2025 the applicant filed a written submission, which the Court received, notwithstanding the fact that it was filed out of time. The first respondent did not object to that occurring.
Further, filed on 6 August 2025, was a purported Affidavit document, the first four pages of which were received by the Court as a written submission upon various objections the first respondent as to its content. The body of that document is a mixture of opinion, evidence, and otherwise written submissions which go to the merits of the applicant's claims. It was explained to the applicant, and she indicated that she understood, that the Court does not have jurisdiction to review the merit of her claims, nor to grant her a visa.
It became apparent while seeking to ensure that all documents had been identified that among the supplements to the applicant's Affidavit is, in fact, a second purported Affidavit document, which probably ought to have been sought to be filed with the Court Registry as a separate Affidavit.
The first respondent objected to the Affidavit being relied upon for essentially three reasons:
(a)from a formal perspective, the Court cannot accept an Affidavit which has been deposed by two people jointly. The Affidavit is defective because only one person can swear an Affidavit at a time and, if the applicant wished to have an Affidavit from each of the sponsors, they ought to have been prepared, and executed separately;
(b)the content of the Affidavit. As was explained to the applicant at the commencement of the hearing, the Court is not deciding whether she should be granted the visa. The content of the Affidavit from the sponsors seeks to persuade the Court to either remit the decision so the Tribunal can grant the visa; and
(c)a number of the documents that had been annexed to the sponsors’ Affidavit are already in the Court Book. To that extent, the Court already has those documents in evidence. There are three documents which are not in the Court Book. Those documents are:
(i)the Western Union money transfers, which commence in 2018 and conclude on 9 July 2021 which predates the Tribunal’s decision;
(ii)two letters each dated 6 August 2025.
Accordingly, I reject the purported Affidavit of the sponsors and only the first four pages of the Affidavit document referred to at [20] above were received, but treated as a written submission.
LEGISLATION
Clauses 835.212 and 835.221 of Schedule 2 of the Regulations require that the applicant be a ‘remaining relative’ of an ‘Australian relative’ at time of application and continues to be a ‘remaining relative’ at time of decision.
Regulation 1.15 defines 'remaining relative' and relevantly states (emphasis in original):
(1) An applicant for a visa is a remaining relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the applicant satisfies the Minister that:
(a) the other person is a parent, brother, sister, step-brother or step-sister of the applicant; and
(b) the other person is usually resident in Australia; and
(c) the applicant, and the applicant’s spouse or de facto partner (if any), have no near relatives other than near relatives who are:
(i) usually resident in Australia; and
(ii) Australian citizens, Australian permanent residents or eligible New Zealand citizens…
Regulation 1.03 provides that someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA of the Act. Section 5CA relevantly provides (emphasis in original):
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act…
Regulation 1.04 defines adoption for the purposes of the Act as follows (emphasis in original):
(1) A person (in this regulation called the adoptee) is taken to have been adopted by a person (in this regulation called the adopter) if, before the adoptee attained the age of 18 years, the adopter assumed a parental role in relation to the adoptee under:
(a) formal adoption arrangements made in accordance with, or recognised under, the law of a State or Territory of Australia relating to the adoption of children; or
(b) formal adoption arrangements made in accordance with the law of another country, being arrangements under which the persons who were recognised by law as the parents of the adoptee before those arrangements took effect ceased to be so recognised and the adopter became so recognised; or
(c) other arrangements entered into outside Australia that, under subregulation (2), are taken to be in the nature of adoption.
(2) For the purposes of paragraph (1)(c), arrangements are taken to be in the nature of adoption if:
(a) the arrangements were made in accordance with the usual practice, or a recognised custom, in the culture or cultures of the adoptee and the adopter; and
(b) the child-parent relationship between the adoptee and the adopter is significantly closer than any such relationship between the adoptee and any other person or persons, having regard to the nature and duration of the arrangements; and
(c) the Minister is satisfied that:
(i) formal adoption of the kind referred to in paragraph (1)(b):
(A) was not available under the law of the place where the arrangements were made; or
(B) was not reasonably practicable in the circumstances; and
(ii) the arrangements have not been contrived to circumvent Australian migration requirements.
Ground of Review
On review, the applicant raises a single issue, being whether the Tribunal properly construed the words "reasonably practicable" within reg 1.04(2)(c)(i)(B) of the Regulations. The grounds of review and the particulars are as follows (errors in original):
The AAT erred when it found the Applicant was, for the purposes of the proceedings, not adopted by the sponsor and his wife and thereby affirmed the decision not to grant the Applicant an Other Family (Residence)(Class BU) visa:
Particulars
i.Paragraphs 40, 45;
ii.The AAT based its decision after considering the legislation under S 5CA, regulation 1.04(1), and regulation 1.04(2) of the Migration Act 1958;
iii.The AAT considered regulation 1.04(2)(c)(i)(B), and erroneously
a. found it would have been reasonably practicable in all circumstances for the sponsor and his wife to take steps to formally adopt the Applicant if they had chosen to do so (paragraphs 36 to 38) while they were living in the Lau islands or in Fiji from 1994 to 2003;
b. considered there is nothing to indicate in the period 2003 to 2011 that it would not have been reasonably practicable in the circumstances for the sponsor and his wife to formally adopt the Applicant (paragraph 29);
c. did not accept that the fact that the sponsor and his wife did not consider it necessary for them to formally adopt the Applicant means that it was not reasonably practicable in all the circumstances for the sponsor and is wife to access the laws of adoption which were available in Fiji (paragraph 39);
iv.In all the circumstances, the AAT:
a. did not consider, examine or understand what the phrase’ reasonably practicable’ meant, and so misapplied the legislation thereby committing jurisdictional error;
b. interpreted the phrase ‘reasonable practicable’ to mean ‘practical’. ‘physically possible’ or ‘feasible’, when the phrase ‘reasonably practicable’ is less onerous than an obligation to take “practical”, “physically possible” or “feasible” action, and requires a common sense approach and a consideration of the sponsor’s knowledge;
c. erroneously failed to accept that at no time formal adoption was reasonably practicable in the circumstances;
v.Accordingly the AAT failed to exercise its jurisdiction, failed to apply the law correctly, and misunderstood the law (regulation 1.04(2)(c)(i)(B)), and so committed jurisdictional error.
The applicant was given the opportunity to make oral submissions at hearing. When asked to speak to the ground of review, the applicant said the following.
The applicant indicated that she is confused by the Tribunal's decision to refuse the visa. The applicant's said the visa sponsor and his wife were in court and are sitting behind her, and referred to them as her parents. The applicant said she has lived all her life with them in that capacity and does not know why this was not recognised by the Tribunal. The applicant said that she is the only child of the sponsor and his wife, and that she also represents their legacy. The applicant said that the sponsor and his wife are the only family that she has and, without them, she is incomplete. The applicant says that she wishes to care for the sponsor and his wife as they age, just as they have cared for her since she was a child. The applicant submitted that the Tribunal erred because she was raised by the sponsor and his wife from birth, and that they had culturally adopted her. The applicant submitted that the Tribunal focused too narrowly on the formal adoption date, rather than on their lifelong relationship.
The applicant told the Court that she believes the Tribunal overlooked the fact that she had lived with the sponsor and his wife, and that her adoption was from birth, because the sponsor and his wife assumed the parental relationship before she turned 18.
The applicant said that in respect to the test as to whether or not it was reasonably practicable for her to have been culturally adopted, the Tribunal ignored the difficulties of living on a remote island. I take this to be a reference to the residence of the applicant, the sponsor and his wife in the Lau Islands. The applicant says that while it is true they had made visits to Suva for holidays, the Tribunal ignored the difficulties of the remoteness of the islands, including the lack of access to lawyers, a lack of legal knowledge on behalf of the applicant and the sponsor and his wife. The applicant submitted that it was not realistic, for the Tribunal to find as it did because, while they had taken visits to Suva for holidays, they did not have time during those holidays, nor the resources, to complete legal paperwork.
The applicant said that formal adoption was only to solidify them as a family. She made submissions to the effect that she has no other family, she considers her close family here to be in Australia, and that her entire life has been built around the sponsor and his wife as being her parents. The applicant also submitted that the Tribunal did not consider what would happen to her if she was to leave Australia. She made submissions to the effect that her previous lawyer, which I take to be a reference to the lawyer who represented her from the commencement of these proceedings, had “not advocated for the truth of her position” and that was why she is representing herself now. She also said that she sought the Court's understanding and compassion in this matter.
For the first respondent, it was submitted that to the extent that the applicant’s written submissions, directed themselves to reg 1.04(1)(b) of the Regulations, this was not the subject of the ground in the originating application and the applicant would require leave to rely upon it.
I am not persuaded that, in circumstances where the applicant is self-represented that the failure of this to be included in the originating application, should automatically preclude her from making submissions about it today. However, even if one accepts that the applicant now seeks to raise the application by the Tribunal of reg 1.04(1)(b) as a basis for an alleged error, I am satisfied that the submissions that were made by the Minister this morning address that there is no such error. In particular, as the solicitor for the Minister points out, the Tribunal in fact dealt with that part of the Regulations at [29] to [32] (CB 199) of the Tribunal decision. In particular, the Tribunal was not satisfied that the applicant's biological parents had not continued to be recognised as her parents under Fijian law until such time as the adoption order was made.
In terms of the ground of review in the originating application, and to the extent that the applicant also addressed this in her oral submissions today, the principal complaint is that the Tribunal did not accept that the applicant had been adopted under cultural customs of Fiji. As has already been addressed, the real issue for the Tribunal was whether or not the Tribunal had properly construed the words "reasonably practicable" within the relevant Regulation, being reg 1.04(2)(c)(i)(B) of the Regulations.
As the first respondent correctly submits, the statutory context in which the Regulation in question arose is that the statute is prepared to accept that there does exist a concept of cultural adoption where it is not reasonably practicable to otherwise entertain formal adoption. The Minister has set out, helpfully, in written submissions, other statutory contexts in which the terms "reasonably practicable" has been used, including in the context of s 198 of the Act, which deals with the obligation to remove unlawful non-citizens from Australia as soon as reasonably practicable: see M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 146 (M38/2002).
Turning then to the ground of the review, the applicant contends that the Tribunal misinterpreted the meaning of the term "reasonably practicable" within reg 1.04(2)(c)(i)(B) of the Regulations. The Minister submits that it is not aware of any case law which expressly considers the meaning of "reasonably practicable" by reference to reg 1.04(2)(c)(i)(B), nor is the phrase defined in the Act of the Regulations. However, it is a term which appears frequently in other legislative contexts and has been considered by the Court on numerous occasions. In short, it must be given its natural and ordinary meaning. The first respondent made the following submissions.
In Slivak v Lurgi (Aust) Pty Ltd (2001) 177 ALR 585 Gaudron J observed the following at [53]:
The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts.
Similarly, in Marshall v Gotham Co Ltd [1954] AC 360, Lord Oaksey said at 370:
... what is `reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved.
Further, in M38/2002, the Full Court of the Federal Court considered the words "reasonably practicable" in the context of the removal obligation under s 198 of the Act. Relevantly, the Court unanimously observed at [65]:
[t]he use in legislation of the expression “reasonably practicable” is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word “practicable” has the meaning “capable of being carried out in action; feasible”… The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation...
Accordingly, the Minister submits that the Tribunal's consideration and finding in respect of whether it was reasonably practicable in the circumstances for the applicant's uncle and aunt to adopt the applicant formally did not involve any misinterpretation of the term "reasonably practicable". The Minister submits that it was open to the Tribunal to find that, where:
(a)the applicant's uncle and aunt had travelled to Suva multiple times between 1992 and 2003, and lived in Suva between 2003 and 2011;
(b)the applicant and her uncle and aunt were able to organise for the applicant to be formally adopted in Fiji when her uncle and aunt remained in Australia;
(c)no evidence or claims had been provided to suggest that the applicant's uncle and aunt were unable to access the adoption procedures; and
(d)the applicant's uncle and aunt's claim was that they did not consider it necessary to adopt the applicant formally;
it was reasonably practicable for the applicant's uncle and aunt to adopt the applicant formally through the laws of adoption which were available in Fiji and, therefore, the applicant was unable to satisfied reg 1.04(2)(c)(i)(B) of the Regulations.
The first respondent submitted there is nothing within the Act or Regulations that requires the Tribunal to expressly consider the applicant's uncle and aunt's "knowledge". Further, any such an argument is contrary to the facts (which were not contentious), where the applicant's uncle and aunt ultimately did formally adopt the applicant, albeit after she had turned 18.
Consideration
The context in this case, namely whether it was reasonably practicable to adopt the applicant in Fiji, in my view this was properly addressed by the Tribunal.
I am satisfied that the Tribunal did not construe the terms "reasonably practicable" too narrowly in the present case for the reasons which it gave. That included that there was no identified need to adopt the applicant until such time as the applicant wished to regularise her migration status in Australia, the fact that there were, in fact many opportunities to do so during trips to Suva. To the extent that submissions were made to the Court today about it not being reasonably practicable to take time on holidays to undertake legal paperwork, those are matters which go to the merits of that issue. However, I accept that the findings of the Tribunal in that context were open to it, based on the evidence before it. I agree with the submissions of the first respondent that the reasons do not reveal an interpretation by the Tribunal more narrow than the authorities allow in this context. I also accept the first respondent's submissions about the reasons being more nuanced than contended for by the applicant at hearing.
It is tolerably clear that the Tribunal understood (and discharged) its statutory task and, as such, that the ground is not made out. Accordingly, I am not satisfied that the decision of the Tribunal is affected jurisdictional error. In the absence of a jurisdictional error, the decision is a privative clause decision and must be dismissed, and I will so order.
Costs
Consequent on the dismissal of the application, the solicitor for the Minister seeks an order that the applicant pay some part of the Minister's costs, in this case fixed in the sum of $5,900. When asked to address whether or not costs should follow the event and/or the quantum of the amount sought, the applicant made submissions that she did not believe that she would be able to meet such a costs order because it would be financially hard for her given her current status, namely that she does not have work rights. The applicant also made submissions that the family's inability to meet legal costs was part of the reason that she is self-represented today and that the sponsor is currently unemployed after two years of not working in order to take care of his wife.
While I understand those submissions, and I have sympathy for the position of the applicant and her family, the impecuniosity of a party is not ordinarily a matter which would factor into whether or not an amount which otherwise represented a proper indemnity of a successful party's cost ought to be ordered in the circumstances. In this case I am satisfied that costs should follow the event. I am also satisfied that the amount sought is reasonable.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 24 September 2025
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