Mehra v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1105
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mehra v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1105
File number(s): MLG 2130 of 2019 Judgment of: JUDGE CUTHBERTSON Date of judgment: 30 October 2024 Catchwords: MIGRATION – Student (Subclass 500) visa – decision of Administrative Appeals Tribunal – where delegate determined that applicant was not a genuine temporary entrant – where applicant not enrolled in a course of study at the time of Tribunal decision – where Tribunal found the applicant did not satisfy the primary criterion pursuant to cl 500.211 – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 348, 359, 360
Migration Regulations 1994 (Cth) cll 500.111, 500.2, 500.211, 500.212, 500.218
Cases cited: Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 15 October 2024 Dates of hearing: 30 September 2024, 15 October 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2130 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RITESH MEHRA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Administrative Review Tribunal”.
2.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed on 4 July 2019 is amended so as to seek a writ of mandamus.
3.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with any requirement to make, file or serve an amended application as ordered in Order 2 above.
4.The applicant’s application for judicial review filed on 4 July 2019 as amended is dismissed.
5.The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $5,000.00.
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 CUTHBERTSON
INTRODUCTION
The applicant filed an application on 4 July 2019 seeking judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 7 June 2019 (application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 visa (visa) under s 65 of the Act. The Minister opposes the application. For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a citizen of India (Court Book (CB) 2). He first arrived in Australia on 7 October 2007 as the holder of a Student (Class TU Subclass 572) visa (CB 96).
On 18 May 2017, the applicant lodged an application for the visa (CB 1-68). At the time of the visa application, the applicant was enrolled to study a Bachelor of Professional Accounting which was due to be completed on 31 July 2019 (CB 97, 125). The visa application was refused by a delegate for the Minister (delegate) on 18 October 2017 on the basis that they were not satisfied the applicant was a genuine temporary entrant (GTE) as required by cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) (CB 90-100).
On 3 November 2017, the applicant lodged an application with the Tribunal for review of the delegate’s decision (CB 101-102) (review application). The Tribunal wrote to the applicant on 6 November 2017 acknowledging receipt of his review application (CB 103-105).
On 2 April 2019, the Tribunal invited the applicant to provide further information about his visa application (CB 106-113). That invitation identified the relevant requirements for the visa (namely that the applicant must be enrolled in a registered course of study and be a genuine applicant for entry and stay as a student), inviting the applicant to give information in writing about the course of study he was undertaking and his entry and stay in Australia as a student. A link was provided to an online ‘Request for Student Visa Information’ form which included specific details about the information being requested (CB 107). The applicant was also directed to Ministerial Direction No 69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ (MD 69). A copy of MD 69 was attached to the invitation letter (CB 109-113).
On 8 October 2019, the applicant submitted the completed form to the Tribunal (CB 114-124). The form sets out a series of questions. In the section titled “Enrolment and study in Australia”, the form asks the following question: “Does the Main Applicant have a current Confirmation of Enrolment (CoE) in a registered course of study?” A note below the box which records the answer to the question reads: “Not being enrolled in a registered course of study may be a reason, or part of the reason, for the Tribunal affirming the decision under review, even if this is not the same criteria or issue considered by the primary decision maker”. The applicant answered “No” to this question.
In the form, the applicant identified previous courses of study undertaken in Australia, the most recent of which was completed in May 2017 (CB 119). He indicated the Bachelor of Accounting, which commenced in July 2017, ended in November 2017 (CB 119). In response to the following question: “Has the Main Applicant been enrolled in a registered course at all times while in Australia as the holder of a student visa?”, the applicant answered “No” (CB 120). The details of the periods during which he was not enrolled in a registered course were provided, including that he was not enrolled between March 2018 and April 2019. The reason provided for not being enrolled was “Waiting AAT Hearing” (CB 120).
On 8 May 2019, the Tribunal wrote to the applicant inviting him to attend a hearing to give evidence and present arguments relating to the issues in his case (CB 126-138). The letter requested the applicant provide all documents he intended to rely on to establish he met the criteria for the visa. The letter advised that the applicant should have regard to the refusal decision and any changes in his circumstances in providing documents and preparing for the hearing (CB 127-128). The Tribunal also requested it be provided the following information at least 7 days before the hearing date (CB 128):
1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl.500.111 of schedule 2 to the Migration Regulations 1994 (the Regulations), as is required for the grant of a student visa.
2. Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to past or intended studies in Australia.
3. We will assess whether you are a genuine applicant for entry and stay as a student (which was the reason for the delegate’s decision). Relevant to this requirement is a direction from the Minister known as Direction No. 69, a copy of which is attached.
Please provide a written statement addressing the issue of whether you are a genuine applicant for entry and stay as a student by referring to Direction No.69.
The letter also advised the Tribunal may make a decision at the end of the hearing (CB 129).
The Tribunal hearing was originally scheduled to take place on 23 May 2019 (CB 127). On 21 May 2019, the Tribunal wrote to the applicant advising the hearing had been rescheduled to take place on 7 June 2019 (CB 139-151). The letter included the same requests for information set out at [8] above.
The Tribunal hearing took place on 7 June 2019. The applicant appeared unrepresented (CB 168) and without the assistance of an interpreter. The Tribunal’s hearing record indicates the hearing commenced at 9:47am and adjourned at 10:11am. The hearing resumed at 2:12pm and closed at 2:28pm. The hearing record records an oral decision was made at 2.28pm and an oral statement of reasons was given (CB 169-170). The hearing record also records that “academic records and certificates” were received during the course of the Tribunal hearing (CB 168).
The applicant was sent a written record of the outcome of the Tribunal’s review on 10 June 2019 (CB 171-175). That written record consists of a transcript of the Tribunal member’s oral decision. It records the decision under review was affirmed. The Tribunal’s letter advised of the applicant’s right under the Act to request a written statement of decision and reasons.
On 17 July 2019, the Tribunal received a request for a written statement of the decision and reasons given orally at the hearing (CB 178).
On 24 September 2019, the Tribunal provided the applicant a written statement of the decision and reasons dated 23 September 2019, which were given orally at the hearing of 7 June 2019 (CB 177-181).
THE TRIBUNAL’S DECISION
The Tribunal noted the applicant must satisfy a range of criteria set out in the Regulations including the primary criteria in cll 500.211 to 500.218 of the Regulations (CB 180, [7]). It identified the issue in the present case was whether the applicant was enrolled in an approved course of study, as required by cl 500.211(a) (CB 180, [8]-[10]). The Tribunal noted the invitation to attend the hearing scheduled for 7 June 2019 “asked that a copy of a current Confirmation of Enrolment (CoE) or other documents to show enrolment in a course of study as defined in cl.500.111 of Schedule 2 to the Regulations be provided”. It also noted the invitation stated a CoE is required for the grant of the student visa, but that no CoE had been submitted by the applicant. The Tribunal recorded the applicant’s own evidence was that “he nevertheless could not provide and conceded that he could not provide evidence of enrolment or other documents that demonstrate he was currently enrolled in an approved course of study” (CB 180-181, [11]-[12]).
The Tribunal found there was no evidence showing that the applicant was enrolled in an approved course of study as required for the grant of the visa. Consequently, as the applicant did not meet cl 500.211, the Tribunal concluded the criteria for the visa were not met and affirmed the delegate’s refusal decision (CB 181, [13]-[15]).
THE APPLICATION FOR REVIEW IN THIS COURT
The application for judicial review filed on 4 July 2019 sets out the following ground for review:
The Administrative Appeals Tribunal did not provide enough weight to the situation I explained as per my circumstances.
I, Ritesh Mehra, writing this in response to the verdict made by Administrative Appeals Tribunal on 07 June 2019. My student visa (subclass 500) got refused and further decision was affirmed by AAT to not to grant the visa. After a serious contemplation, I believe that there has been a jurisdictional error and the Tribunal has failed to consider a relevant matter that is necessary to be evaluated in my case. Therefore, I have decided to apply for the Federal Circuit Court to reconsider my student visa (subclass 500) refusal which was affirmed by AAT on 07 June 2019. Considering all the circumstances and conversation I had with the respected Tribunal Member, I am not satisfied with the decision made by AAT. Therefore, I request to appeal Federal Circuit Court to please reevaluate the decision.
The application then sets out a lengthy narrative of the applicant’s study history and motivation to pursue an accounting degree. In that narrative, the applicant alleges the Tribunal had “not given enough weightage on my intensions and would like to request the FCC to consider the circumstances and reevaluate the decision made”. He further alleges:
My commitment and determination to being dedicated to my career goals was not given enough weightage and request the Federal Circuit Court to please reevaluate the decision made by AAT to not to grant the visa.
With respect to laws and conditions, the above-mentioned reasons and circumstances are true to my knowledge and I feel I should be given a change before I return to my home country.
I would like to appeal to Federal Circuit Court to kindly reevaluate my case. I hope I would be given a chance to prove my authenticity and my previous situation. I believe that AAT did not put weightage on my circumstances and previous conditions, and I request for appeal to Federal Circuit Court to reconsider my case so that a right decision will be imposed on my application.
The narrative and allegations are repeated in the applicant’s affidavit of 4 July 2019 filed in support of the application. No part of the application or affidavit engages with the dispositive issue for the Tribunal, namely the finding the applicant was not enrolled in a course of study at the time of its decision.
On 21 August 2024, orders were made by a registrar of this Court in anticipation of the matter being listed for final hearing. Those orders included that the applicant file and serve on or before 18 September 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which he seeks to rely. No further materials were filed in accordance with those orders.
The Minister filed written submissions on 18 September 2024. They were served on the applicant by email on that same day.
PROCEEDINGS IN THIS COURT
The applicant first appeared before me on 30 September 2024 unrepresented and without an interpreter. He was accompanied by his partner. It became apparent the applicant relied significantly on his partner’s assistance to follow the course of the proceedings. Consequently, I adjourned the matter to 15 October 2024 so that an independent interpreter could be arranged to assist the applicant.
The applicant appeared on 15 October 2024 with the assistance of an interpreter in the Punjabi and Hindi languages. I spent some time explaining the hearing process to the applicant, identifying the documents before me and the issues considered by the Tribunal. I also explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give him a visa. I explained the remedy available if his application succeeded was to send the matter back to the Tribunal to decide again. To that end, I allowed an amendment to the application so that it sought a writ of mandamus.
The applicant had also provided to the Court on 10 October 2024 the following:
(a)a document titled “Final Submission by the Applicant”. These submissions outline the applicant’s history of study and work in Australia, a medical condition he says contributed to his decision to change career direction, the effect of COVID-19 on his business plans in India, his community involvement and social contributions, family support and financial security, travel history and compliance with prior visa conditions. Under the heading “Relief Sought”, the applicant asks the Court to “reconsider the Department’s decision to refuse my visa” and requests his visa be reinstated. He advises he is not seeking compensation; and
(b)a number of certificates of achievement.
During the course of the hearing, the applicant provided a letter from a former employer which refers to the applicant’s reasons for leaving his employment as a cook and provides a reference as to his character and good work history.
I accepted the certificates and reference into evidence on a provisional basis, indicating I would determine whether they are relevant and admissible in these proceedings. I have concluded they are not. The applicant told me he relied on the reference to explain why he moved from one course to another. The documents are relevant to the merits of the applicant’s claim that he meets the GTE criteria or is otherwise suitable for the grant of a visa. They are not relevant to my determination of whether the Tribunal fell into jurisdictional error when affirming the delegate’s decision to refuse the visa. The Tribunal did not consider the GTE requirements in the circumstances of this case given its conclusion the applicant did not meet the enrolment requirements of the visa. As I explain below, there was no error in that approach. Therefore, evidence going to that issue is not relevant to the issues arising from the application.
CONSIDERATION
Judicial Review
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Visa Criteria
Section 65(1)(b) of the Act provides that after considering a valid application for a visa, the Minister, if not satisfied that criteria prescribed by the Act or the regulations for the visa have been satisfied, is to refuse the visa. When undertaking its review function, the Tribunal is similarly required to consider whether the criteria prescribed by the Act or the regulations for the visa have been satisfied.
The relevant criteria required to be satisfied for the visa are set out in Sch 2 of the Regulations. Clause 500.2, which sets out the primary criteria for the visa, provides that all criteria must be satisfied “at the time a decision is made on the application”. This necessarily includes any decision made by the Tribunal on review. Clause 500.211 sets out the following criteria:
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student – the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence Student – the applicant has the support of the Defence Minister for the grant of the visa.
There is no suggestion that sub-clauses 500.211(b)-(d) are relevant to this matter. “Course of study” is a defined term and means a “full-time registered course”: cl 500.111. It follows that if the applicant was not enrolled in a course of study at the time of the Tribunal’s decision, he did not satisfy a primary criterion for the grant of the visa. The Tribunal, consequently, would be required to affirm the refusal.
Applicant’s submissions
I went through the Tribunal’s reasons for decision and discussed the cl 500.211 enrolment requirement with the applicant. I asked the applicant to explain what the Tribunal did wrong when it decided to affirm the delegate’s decision. The applicant explained he had a CoE when he applied for the visa. After he received the delegate’s letter which he described as “cancelling” his visa because he was not a genuine student, that enrolment ceased. He explained when he applied to the Tribunal, he was not aware whether a CoE needed to be submitted. He had not obtained another one because it costs thousands of dollars and if he did not get a visa, it would be a waste. He explained universities do not refund those fees.
I directed the applicant to the criterion set out in cl 500.211 and asked what he says the Tribunal should have done. He said he asked the Tribunal for time, but they did not give it to him. It was pointed out the Tribunal decision does not record there was any request for time. The applicant stated that most of the time the Tribunal gives you an option. It was a long time ago. He was not given the option. He said there were a lot of other people waiting to have their matters heard. He did not remember whether he asked for more time.
I noted the applicant did not have the assistance of an interpreter during the Tribunal proceedings. He told the Court he did not have any difficulty following the proceedings before the Tribunal.
I took the applicant to his grounds of review where he asserted the Tribunal failed to consider a relevant matter and asked him to explain what he says the Tribunal failed to take into account. He explained that if the option had been given to him to provide a CoE in a month’s time, he would have provided it. I drew the applicant’s attention to the contents of the Tribunal’s letter inviting him to provide information and the form he submitted in response to the invitation where it referred to the requirement to have a current enrolment. He agreed the two-month period between receiving that invitation and the hearing before the Tribunal would have been enough time to organise an enrolment, however he said he was very confused and did not know what to do.
Finally, the applicant accepted in reply that he made a mistake at the time of the review hearing but queried why he was not allowed to continue his studies now, adding that he can provide a CoE now.
Minister’s submissions
The Minister submitted that the Tribunal in determining the applicant’s application for review was required to consider the following:
(a)whether the applicant was enrolled in a registered course of study: cl 500.211(a); and
(b)whether the applicant was a genuine student who intended to stay temporarily: cl 500.212.
The Minister noted the delegate had decided the matter on the basis they were not satisfied the applicant met the GTE requirements pursuant to cl 500.212. The Minister referred to the Tribunal’s letters inviting the applicant to provide information and inviting him to attend a hearing. It was submitted the hearing invitations requested proof of enrolment be provided at least seven days before the hearing. The applicant attended the hearing but did not provide evidence of enrolment. On that basis the Tribunal correctly concluded the applicant was not enrolled in a course of study and could not meet the mandatory requirement for the visa. Consequently, it made the only decision open to it, which was to affirm the delegate’s refusal of the visa.
As to the applicant’s submission that he should have been given more time, the Minister submitted there was no evidence any such request was made. The Minister submitted the Tribunal was not required to afford every conceivable opportunity to the applicant to present his case, particularly where the evidence showed he was repeatedly asked to present evidence of enrolment prior to the hearing.
The Minister submits the Tribunal made the only decision open to it given that the applicant’s written and oral evidence, which was to the effect he did not meet the cl 500.211(a) enrolment criterion.
Discussion
In this case, the evidence before the Tribunal was that the applicant’s most recent enrolment had been cancelled in November 2017 (CB 119). He told the Tribunal at the hearing he did not have evidence he was then enrolled in a course of study and was not able to produce such evidence (CB 180-181, [12]). He had told the Tribunal in response to its invitation to provide evidence in writing that he was not enrolled as he was “Waiting AAT Hearing” (CB 120).
Clearly, at the time of the Tribunal’s decision the applicant did not meet the enrolment criterion pursuant to cl 500.211(a). No other parts of cl 500.211 were applicable. Consequently, he was unable to meet the primary criteria for the grant of the visa at the time of the decision. The Tribunal consequently made the only decision open to it in the circumstances.
Further, the Tribunal identified that the dispositive issue was whether the applicant was enrolled in a course of study at the time of its decision. While that was not the dispositive issue for the delegate, it was identified by the Tribunal prior to the review hearing as an issue that arose in the context of the review it was to undertake. So much was made clear by its correspondence and the form it requested be completed as set out at [5]-[9] above. The applicant was also asked questions regarding his enrolment status during the review hearing. Not only was the issue identified on multiple occasions, but the applicant was afforded ample opportunity to present evidence that was capable of satisfying the cl 500.211 criterion.
In my view, the Tribunal complied with its procedural fairness obligations and the statutory scheme: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35]-[36] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
To the extent the applicant complains the Tribunal failed to take into account information going to the GTE criteria, there is no error demonstrated. Having found that an integral element of the relevant criteria was not satisfied, it foreclosed any possibility of a favourable outcome: c.f Dait v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 1; [2022] FCAFC 25 at [32] per Jagot, Bromwich and Lee JJ. The Tribunal did not need to go further than determine whether the applicant met the 500.211 criterion.
As to the complaint that the Tribunal did not afford the applicant time to get proof of enrolment, in my view this does not constitute jurisdictional error. There is nothing in the reasons for decision to suggest the applicant sought an adjournment. He has not presented any evidence to suggest that he had. In this Court, he stated he could not remember if he asked for an adjournment or not. His complaint is based on an assertion that “most of the time” the Tribunal gives extra time.
The Tribunal had power to adjourn review proceedings from time to time: s 363(1)(b) of the Act. That power was required to be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63], per Hayne, Kiefel and Bell JJ. The Tribunal, however, was not obliged “to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that ‘enough is enough’”: Li at [82].
In circumstances where the applicant did not request an adjournment, had been given ample notice of the enrolment criterion including express requests to present evidence relevant to this issue prior to the review, had not taken steps to secure an enrolment when he had time to do so and had been warned the Tribunal may make a decision at the end of the review hearing, the Tribunal did not act unreasonably in proceeding to determine the matter without affording the applicant further time to secure an enrolment in a registered course.
In my view, the applicant has failed to establish the Tribunal fell into jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application as amended.
The Minister indicated it sought costs in the fixed sum of $5,000.00 in the event that it was successful in these proceedings. The applicant did not dispute that such an order should be made in the event his application was unsuccessful. He advised he was aware that it was usual for the losing party to pay costs. He stated he would not ask for costs in the event he was successful.
I am satisfied that costs should follow the event and that the amount sought is reasonable. It falls well short of the scale of costs in migration matters set out in Sch 2, Pt 2 of the Rules. I order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the amount of $5,000.00.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 30 October 2024
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