Luo v Minister for Home Affairs
[2022] FedCFamC2G 392
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luo v Minister for Home Affairs [2022] FedCFamC2G 392
File numbers: SYG 514 of 2018
SYG 1467 of 2018Judgment of: JUDGE GIVEN Date of judgment: 20 May 2022 Catchwords: MIGRATION – imaginative use of judicial review proceedings relating to first refusal of tourist visa as a basis for second tourist visa application – limited ways to say “return to China” Legislation: Migration Act 1958 (Cth) ss 57, 65, 359A, 424A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: AOY17 v Minister For Immigration & Anor [2018] FCCA 1610
AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10
Carrascalao v Minister forImmigration and Border Protection (2017) 252 FCR 352
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Nanre v Minister for Immigration and Border Protection (2015) 232 FCR 80
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317
WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 8 March 2022 Place: Sydney Solicitor for the Applicant: Mr G Lu of Cowise Solicitors Counsel for the Respondent: Mr T Liu Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 514 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEI LUO
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application made on 26 February 2018, as amended, 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).
ORDERS
SYG 1467 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEI LUO
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 MAY 2022
THE COURT ORDERS THAT:
1.The application made on 8 April 2018, as amended, 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:
I have before me two applications for judicial review in proceedings SYG514/2018 and SYG1467/2018 by which the same applicant seeks review of two migration decisions respectively.
Proceeding SYG514/2018 relates to the decision of a delegate of the Minister (first delegate) made at the Australian Consulate General at Shanghai, China (Consulate) on 3 February 2018 pursuant to s 65 of the Migration Act 1958 (Cth) (Act) in relation to a Visitor (Tourist) subclass 600 visa (tourist visa) application made by the applicant on 22 January 2018 (first application). Proceeding SYG1467/2018 relates to a decision of different delegate of the Minister (second delegate) at the Consulate to refuse the applicant a tourist visa for which he applied on 28 February 2018 (second application).
On 15 June 2018 another Judge of this Court made orders that the proceedings be heard together. The parties each filed a set of merged written submissions and there is much overlap in the documentary evidence, albeit with some divergences (which are set out below at [18]). It is not only convenient but also appropriate in my view that the matters be dealt with in one judgment although orders will be made in each proceeding so as to dispose of them properly.
BACKGROUND
On 22 January 2018, the applicant applied at the Consulate for a tourist visa to enter Australia. On 3 February 2018 the first delegate refused the tourist visa on the basis that the applicant did not satisfy cl 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) which provided that:
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b) whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and
(c) any other relevant matter.
On 26 February 2018, the applicant (via solicitors in Australia) commenced proceeding number SYG514/2018 (first proceeding). Ordinarily upon the filing of an originating application, a cover sheet is appended in the Registry which inserts a date reflecting the first Court date allocated to a new proceeding pursuant to r 2.07B(1) of the Federal Circuit Court Rules 2001 (Cth) (Former Court Rules) which applied at the time of application and is now relevantly r 2.09(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
If an originating application is filed electronically, the details of the first Court date will not be completed by hand in the Registry, and will instead appear on a cover sheet to the originating application. As recorded on the Notice of Filing and Hearing cover sheet for the first proceeding, the matter was listed for a first Court date at 10.15am on 19 March 2018. That Notice of Filing and Hearing is taken to be part of the originating application: r 2.07B(2) of the Former Court Rules and r 2.09(2) of the Rules and SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317 at [45] per Mansfield, Tracey and Mortimer JJ.
The originating application in the first proceeding was diligently completed in respect of the relevant footer by the applicant’s solicitor: Cf AYF15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 10 at [43] to [44]. The applicant’s address for service was given to be that of his solicitor who acknowledged having prepared that application to the Court and has represented the applicant throughout these proceedings, including at hearing before me. I infer from these matters that the solicitor had, and has, general authority to act for the applicant: see r 6.01(4) of the Former Court Rules and Rules.
On 28 February 2018, the applicant made the second application (still offshore) for a tourist visa. Among other documents, as part of the second application the applicant provided the Notice of Filing and Hearing cover sheet of the originating application for the first proceeding (omitting the application for judicial review itself) as a supporting document (CB 42).
By his second application, the applicant appointed his solicitor as his authorised recipient.
Further, by the second application the applicant stated that he (CB 1):
…has a court hearing at the Federal Circuit Court of Australia listed on 19 March 2018. The applicant is the main party and key witness in the litigation matter in Australia. The applicant is expected to give material evidence and attend the court hearing in Australia.
On 6 March 2018, the second delegate refused to grant the applicant a tourist visa.
The second delegate also found that the applicant did not satisfy cl 600.211 of the Regulations. The second delegate observed that information provided with the second application did not adequately address the concerns pertaining to the first application and made reference to a telephone interview which it appears took place between the applicant and the second delegate.
After noting the applicant’s claim that he intended to visit Australia to attend a Court hearing, the second delegate referred to a telephone interview which they apparently had with the applicant. The second delegate observed that:
During this telephone interview you demonstrated very little knowledge of your intended travel itinerary, and refused to provide any details about your court hearing.
On that basis, the delegate expressed “serious concerns…as to whether your situation in China and purpose in travelling to Australia” was as the applicant claimed.
On 8 April 2018 the applicant’s solicitor lodged another judicial review application with this Court seeking to challenge the refusal of the second application.
On or about 9 April 2018, the Registry through the Court’s elodgment system transmitted the following message to the applicant’s solicitor:
Registrar has indicated that you should raise the decision in proceedings SYG514/2018 instead of filing a new application.
On 18 April 2018, the applicant filed an Application in a Case to join the first proceeding. On 23 May 2018 a Judge of the Court made orders enabling the documents lodged on 8 April 2018 to be accepted for filing in SYG1467/2018 (second proceeding). The order referred to in paragraph [3] above was subsequently made in both the first proceeding and the second proceeding.
EVIDENCE
As noted previously there is considerable overlap in the evidence in both proceedings, however a number of Affidavits have been filed in each proceeding and were received by the Court at hearing as follows:
First proceeding Second Proceeding Court Book filed 27 March 2018 Court Book filed 23 July 2018 Affidavit of Guitang Lu affirmed 8 May 2018 Affidavit of Chaofeng Guan affirmed 21 August 2018 Affidavit of Yifan Lei affirmed 28 May 2018 (erroneously filed in the second proceeding) Affidavit of Guitang Lu affirmed 27 August 2018 Affidavit of Chaofeng Guan affirmed 21 August 2018 (erroneously filed in the second proceeding) Affidavit of Yifan Lei affirmed 3 September 2018 Affidavit of Guitang Lu affirmed 27 August 2018 (erroneously filed in the second proceeding)
Lastly, and to give complete context to orders I made at the hearing of the matter, on 28 May 2018 a Notice to Admit Facts was filed in the second proceeding. The Affidavit of Yifan Lei affirmed 3 September 2018 and filed in the second proceeding is an Affidavit of Service which purports to attest to its deponent having effected service of, inter alia, the Notice to Admit Facts on the respondent at the office of the Department of Home Affairs in Lee Street, Sydney. The date in paragraph [6] of the Affidavit is inconsistent with the date on which the documents are said to have been served (and appears to have been copied across from the other Affidavit of Service relating to the first proceeding albeit filed in the second proceeding on 28 May 2018).
However, if the date of service is accepted as having been 28 May 2018, the following relevantly occurred. The solicitors for the respondent had not, as at 28 May 2018, filed a Notice of Address for Service in the second proceeding. They were, however, on the record already in the first proceeding.
I am informed by Counsel for the respondent that it was more than 14 days before the Notice to Admit Facts wended its way into the possession of his instructors. By that time, the period of deemed admission provided for under r 15.31(2) of the Former Court Rules (now r 15.19(2) of the Rules) had expired.
At hearing before me, Counsel for the respondent sought an order under r 15.19(3) of the Rules granting leave to withdraw deemed admissions and, given that it was not opposed, I granted leave for the withdrawal of any deemed admission in relation to [7] to [11] (inclusive) of the Notice to Admit Facts.
GROUNDS OF REVIEW
The grounds of judicial review raised in the first proceeding are those contained in the Amended Application filed for the applicant on 14 May 2018 which are as follows (omitting particulars):
1.The Respondent committed jurisdictional error in that the Respondent failed to consider, or give proper, genuine and realistic consideration to, relevant material.
2.The Respondent’s decision is illogical, irrational or unreasonable.
The grounds of judicial review raised in the second proceeding are those contained in the Amended Application filed for the applicant on 3 September 2018 which are as follows (omitting particulars):
1.The Respondent denied the Applicant natural justice in failing to comply with mandatory procedures under s57 of the Migration Act 1958 (Cth).
2.The Respondent committed jurisdictional error in that the Respondent failed to consider, or give proper, genuine and realistic consideration to, relevant material.
First proceeding
Ground 1 of the Amended Application in the first proceeding alleges a failure on the part of the delegate to give proper consideration to relevant material, being the supporting documentation that was provided with the first application. The applicant says (at [18] of his submissions) that the error is that the delegate:
…misconceived the decision-making process under the Regulations and adopted a “one fail, all fail” approach that if one consideration fails and the whole case is over, with no need to genuinely consider other factors (cb 41).
This is said to be a finding in contrast to the evidence provided by the applicant that he is married, with 3 school-age children and that this evidence of his family ties in China should have been genuinely considered and that if so considered, a rational, logical or reasonable decision-maker would make a different finding from the delegate’s conclusion that the applicant had no strong family commitments in China sufficient that he would return.
The delegate found at CB 41 as follows:
More specifically, I have considered your economic circumstances and note that you have provided some evidence of your financial standing, however the amounts/assets cannot be considered significant in the context of overall economic/employment conditions and cost of living in China. As such, I do not consider that you have strong economic incentives to return China at the end of your proposed stay in Australia.
The applicant contends at [21] of his submissions that the delegate’s conclusion means that the applicant was a person who was prepared to abandon his wife and children and that this was:
…inhumane and against the human nature. It is appalling how the decision maker could reach the conclusion.
The Amended Application in the first proceeding added an additional particular to this ground which alleged, in essence, that the delegate used identical reasons for refusing the applicant as have been used in decisions pertaining to other applicants. The written submissions filed for the applicant give examples of this as being the expression “return to China”, and relies on the Affidavit of Guitang Lu made on 8 May 2018 (Lu Affidavit) which annexed the reasons for decision pertaining to 3 other applicants. The applicant seeks to distinguish Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 per Rares and Jagot JJ at [51] and Nanre v Minister for Immigration and Border Protection (2015) 232 FCR 80 per White J at [41] and [58] and says that unlike those cases, the repetition in this case gives rise to an error.
The respondent says that contrary to the allegations raised by this ground, the delegate did properly consider the visa criterion. The respondent says, in relation to the allegation that template reasons have been used, that a fair reading of the reasons in context indicates that the delegate properly applied his or her mind to the facts in the instant case, citing WAFK v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 209 per French J (as his Honour then was) at [38].
In relation to the allegation that the delegate failed to give proper, genuine and realistic consideration to all aspects of the applicant’s evidence in concluding that he did not satisfy cl 600.211 of the Regulations, regard must first be had to the criterion itself, which prescribes that in addition to substantial compliance with the conditions of any previous visas held, and the applicant’s own subjective intention to comply with the visa the subject of the application, the decision-maker should have regard to “any other relevant matter”.
It is clear from the delegate’s reasons that regard was had to the applicant’s total circumstances, which included his family situation. The delegate was not satisfied, having particular regard to economic matters, that the applicant would be sufficiently incentivised economically to return to China and that this outweighed other factors such as his family and employment commitments in China. Contrary to the moral indignation with which the applicant expresses some of his submissions, the delegate did not find that the applicant would be abandoning his family. In fact, the finding may equally be taken as meaning that in order to support his family who remained in China, the applicant was prepared to travel to Australia for economic purposes. However, this is speculative and not a matter I need to resolve. I do not accept that the findings of the delegate in balancing relevant matters which might inform the incentives for the applicant to remain in Australia instead of returning to China were such that no decision-maker could have made them, as alleged by ground 1.
The respondent says that a fair reading of the delegate’s reasons demonstrates engagement in an “active intellectual process” in the sense discussed in Carrascalao v Minister forImmigration and Border Protection (2017) 252 FCR 352 at [32] to [35] and that the applicant’s submissions (which are said to simply re-agitate the merits of the first application) would not cause the Court to infer anything less than such an engagement. I agree. Accordingly, the first part of ground 1 is not made out.
To the extent that the ground also takes issue with the reasons themselves and suggests that there is a jurisdictional error constituted by the delegate’s use of “template reasons” in this instance, I reject this too. Context is key in an assessment of such an allegation. Contrary to decisions such as SZQHH and Nanre, in which an independent merits reviewer was determining whether the applicant was a person to whom Australia owed protection obligations, the applicant in the instant case was making a (relatively simple) application for a visitor/tourist visa. The visa criteria themselves are simpler, the material provided in support was also not complex and what is at stake for the applicant should the visa not be granted is hardly comparable, let alone perilous.
This concept was recognised in SZQHH where the majority said at [26] (citations omitted):
The courts have declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case. This is because what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations…
In the context of a visitor visa, when providing reasons for an assessment after undertaking a weighing task of the factors which may inform whether an applicant is likely to return to their country of origin at the end of what is said to be a touristic visit, there are a limited number of ways to say that a delegate is not persuaded that, on balance, an applicant genuinely intends to stay for the purposes of whether they satisfy cl 600.211 of the Regulations. There are even fewer ways to specifically find this in relation to a “return to China”. When the clause is narrow in scope and the material is limited, as in the present matter, a delegate is not required to open a thesaurus in order to ensure that the reasons given in relation such a simple concept, which has its basis in the language of the legislative instrument, are bespoke.
While I accept the point arising from the Lu Affidavit that similar expressions have been used in relation to the other applicants with different family compositions and marital statuses, the similarity of conclusion does not mean that the delegate failed to undertake the balancing task described in the reasons for decision.
For the foregoing reasons, ground 1 in the first proceeding is not made out.
Ground 2 of the Amended Application in the first proceeding alleges that decision is illogical, irrational or unreasonable. In support the applicant made references in the footnotes of his written submissions to online news articles from 2018 regarding Ministerial intervention in relation to certain visas of third parties who (from my understanding) are unrelated to the applicant, are from different countries of origin than the applicant and related to the cancellation of visas while in Australia.
The point the applicant appears to make from these articles about third parties is that the Minister intervening in those visa cancellations was rational and that, by contrast, the delegate refusing the applicant a visa was irrational. The correlation is simply unavailable, nor does an unrelated decision give rise to an error in the instant matter.
Such an error is only established where a decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132] per Crennan and Bell JJ. Relevant error will exist if the finding of fact “was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS (supra) at [135] per Crennan and Bell JJ.
Against the findings of the delegate that she had considered the material before her, which included financial information, and that said material did not establish that the applicant would have sufficient financial incentives to return to China, the delegate’s reasoning has a logical nexus. It is not, in and of itself, irrational or illogical as against the well-established test and the news articles about third parties does not alter that.
Accordingly, ground 2 of the first proceeding is also not made out. In the absence of jurisdictional error being established by the Amended Application in the first proceeding, it is dismissed, and I will so order.
Second proceeding
The second proceeding of course involves a different delegate’s decision, and is to be considered against a background which includes, in its evolution, the making and rejection of the first application. As is set out above at [10], the applicant quite creatively cited the scheduled Court date in the first proceeding as being a basis for which he needed to travel to Australia. On one view this could be seen as showing considerable ingenuity. On another view, if the purpose of commencing the first proceeding was for the purpose of generating a first Court date fixture to ground a second visa application, then arguably the first proceeding was an abuse of process. It was open to the respondent to seek its dismissal on that basis but he did not do so. In the absence of such a course having been pursued, it is unnecessary to address this further.
Ground 1 in the second proceeding alleges error on the part of the second delegate said to be a failure to comply with s 57(2) of the Act. Section 57 of the Act provides:
57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review applicant; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
The material upon which the applicant alleges he ought to have been given an opportunity to comment is the concern/s of the first delegate about the applicant’s financial status. This is said to be because the second delegate made reference to the context in which the first application was refused. The second delegate went on to state that the additional information which had been provided with the second application:
…does not adequately address the concerns raised in the decision to refuse your previous application.
The applicant further says (at [45] of his written submissions filed in the first proceeding) that the second delegate:
…presumed that the previous decision on 3 February 2018 must be true though the Respondent had been put on notice that the decision was subject to judicial review and might expose jurisdictional error…the decision maker’s rationale was that once the previous decision maker made a finding, that finding would be binding on him or her without further intellectual process.
In order to engage the Minister’s obligation under s 57(2), that information would need to be adverse information for the purposes of s 57(1) of the Act. The term “information” in that section can be understood by reference to authorities which have dealt with the analogue provisions in Parts 5 and 7 of the Act (ss 359A and 424A), in particular SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]: see AOY17 v Minister For Immigration & Anor [2018] FCCA 1610 at [26] per Judge Driver.
Deficiencies in material which pertained to the applicant’s financial status and which led the first delegate to conclude he did not have sufficient incentives to return to China were not information for the purposes of s 57. At most they were doubts or an absence of evidence. The applicant knew this and sought to bolster the material when making the second application, which was acknowledged by the second delegate who referred to “the additional information that you have provided with the current application”.
The applicant’s essential complaint does not appear to be that he was not given an opportunity to comment on information which would be the reason or part of the reason for refusing to grant the visa. Rather, it is that he was not given a prescriptive list of what financial evidence would satisfy the delegate that he had sufficient incentive to return. That is not what is required by s 57 of the Act.
Further, and contrary to what is asserted for the applicant, there is no basis to conclude that the first delegate refusing to grant the visa was the reason or part of the reason for the second delegate also refusing it. Nothing emanates from the reasons of the second delegate to indicate that they in any way considered themselves bound, out of comity or on any other basis, to adopt the earlier finding. The reference by the second delegate to the ongoing dearth of financial incentives to return was a reference to the nature and quality of material the applicant had advanced with the second application. It was not a finding that the applicant had failed to rebut a presumption of the first delegate such that the second delegate remained in some way bound to adhere to it. There is no error as alleged by ground 1 in the second proceeding, or at all in relation to s 57 of the Act.
Ground 2 in the second proceeding in essence makes the same allegations as ground 1 in the first proceeding and the applicant’s written submissions refer the reader back to his written submissions advanced in respect of that ground. To the extent that the applicant relies on the same arguments and particulars as are expounded previously, I again find that there is nothing before me to suggest that the second delegate failed to given proper consideration to the relative merits of the second application which was before them. There is nothing identified specifically, nor is there anything apparent from that decision, which would lead me to conclude that the decision was illogical or irrational, by reference to the authority cited above at [41].
While not the subject of written or oral submissions, I observe that one of the particulars to this ground in the Amended Application which differs from the matters raised in the first proceeding states:
(c) The Respondent failed to consider, or give proper, genuine and realistic consideration to, a relevant court document:
(1) A copy of the filed application for proceeding SYG514/2018 was served by hand to the Respondent on 28 February 2018, and a cover page of the filed originating application was attached to the online visa application TRN: EGOHIGITY8. (cb42)
Reference is then made to service of the Notice to Admit Facts. If by these allegations the applicant is seeking to impugn the second delegate’s finding that in his telephone interview with the second delegate the applicant demonstrated little knowledge of his intended travel itinerary and refused to prove and details about the hearing, in my view, it is without merit. Firstly, the fact of service of documents in proceedings at the Department’s Sydney office does not mean that the applicant had provided documents to the delegate as part of the application (if that is what the particulars seek to allege). It was not for the delegate or anyone at the Consulate to investigate what, if any, other documents may exist in relation to the first proceeding in other sections of the Department files.
As noted above at [8], the applicant provided the Notice of Filing and Hearing cover sheet of the originating application for the first proceeding as among the supporting documents submitted with the second application (CB 42). There is nothing to suggest that the second delegate overlooked or failed to consider it. The finding was that the applicant knew very little about the proceeding and that he refused to provide any details himself. There is nothing before me which would indicate this to be untrue, and it is not inconsistent with the fact that he had submitted the document.
Given the rather bold statement included in the second application and which is extracted at [10] above (which I observe as an aside is also not an accurate description of what would ordinarily occur at the first return date of a migration matter in the (then) Federal Circuit Court of Australia in 2018, much less one in which the applicant was legally represented), it was open to the second delegate to have enquired of the applicant directly about his case, and to draw relevant conclusions about his limited knowledge about the matter.
For the reasons given above, in my view the second delegate had probative bases for not being satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose he stated, namely to attend the first Court date at which he was a material witness, and accordingly for refusing to grant the visa.
Accordingly, ground 2 in the second proceeding is not made out and, in the absence of any error being established by the Amended Application filed in the second proceeding, it too will be dismissed and I so order.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 20 May 2022
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