Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 272
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 272
File number(s): MLG 3343 of 2021 Judgment of: JUDGE RILEY Date of judgment: 14 April 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – bridging E visa – whether the Tribunal was obliged to make findings about, and state reasons for, its decision that certain conditions should be imposed on the visa – whether the Tribunal’s decision was unreasonable. Legislation: Migration Act 1958 ss. 41(3), 73, 368(1)
Migration Regulations 1994 cl.050.212(2), 050.223 of Sch.2
Cases cited: Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2003) 70 ALD 289; [2002] FCA 197
Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1629
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; (2000) 168 ALR 407; (2000) 74 ALJR 405; (2000) 21(2) Leg Rep 2; [2000] HCA 1
Minister for Home Affairs v Benbrika (2021) 388 ALR 1; [2021] HCA 4
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50
Public Service (NSW) v Osmond (1986) 159 CLR 656; (1986) 9 ALN N85; (1986) 63 ALR 559; (1986) 60 ALJR 209; [1987] HCA 7
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 6 April 2022 Place: Melbourne Counsel for the Applicant: Sergio Zanotti Stagliorio Solicitor for the Applicant: Luat Lawyers Counsel for the First Respondent: Greg Johnson Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: Sparke Helmore Lawyers ORDERS
MLG 3343 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANH TRUONG NGUYEN
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE RILEY
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The application filed on 17 December 2021 and amended on 9 March 2022 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 RILEY:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Class WE (Bridging E) visa.
BACKGROUND
In his written submissions filed on 30 March 2022, the Minister provided the following background to this matter:
2.The applicant is a citizen of Vietnam who arrived in Australia on 5 July 2008 as a dependent on his then wife’s Student (subclass 572) visa. They subsequently divorced. On 19 June 2012, the applicant’s student visa was cancelled and he became an unlawful non-citizen.
3.On 17 December 2017, the applicant was arrested on drug related charges. He was taken into immigration detention, where he has remained since. He subsequently unsuccessfully lodged applications for a protection visa, multiple bridging visas, and unsuccessfully sought Ministerial Intervention to grant him a visa. On 31 January 2020, the applicant was convicted for drug supply offences committed in 2017 in Queensland. He was “released” immediately for time served and on the basis that the balance of his four-year sentence was suspended.
4.On 3 November 2021, the applicant lodged an application for a Bridging E visa. On 5 November 2021, a delegate of the Minister refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant would abide by the conditions that would be imposed on the visa if granted, namely conditions: 8101 (No Work); 8207 (No Study); 8401 (Report as directed); 8506 (Advise change of address within 2 working days); 8510 (Present Valid Passport); 8512 (Depart Australia on a specific date); and 8564 (Must not engage in criminal conduct). The delegate accordingly found the applicant did not meet clause 050.223 of the Migration Regulations 1994 (Regulations).
5.On 5 November 2021, the applicant applied to the Tribunal for review of the delegate’s decision. On 15 November 2021 the Tribunal affirmed the decision under review. The Tribunal found that the applicant did not meet clause 050.223 in Schedule 2 to the Regulations.
The application to this court was filed on 17 December 2021. The applicant sought, and was granted, an expedited hearing. The hearing took place on 6 April 2022, and judgment was reserved.
THE STATUTORY SCHEME
The Minister summarised the statutory scheme as follows:
7.Section 31(2)(g) of the Act provides for a class of visa known as “bridging visas” for which provision is made in s.37 of the Act. Section 37 provides that “[t]here are classes of temporary visas, to be known as bridging visas, to be granted under subdivision AF [of Division 3 of Part 2 of the Act].” Section 31(3) provides that the regulations may prescribe criteria for visas of a specified class. Regulation 2.02(2) of the Regulations provides that:
For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitem “Subclasses” in the item in Schedule 1 that refers to that class of visa.
8. This means the criteria specified in Schedule 2 apply to a particular class of visa, relevantly a bridging visa, where Schedule 1 identifies the applicable subclass. In this regard, regulation 2.03(1) provides that:
For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:
(a) the primary criteria set out in a relevant Part of Schedule 2; or
(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.
9.Clause 1305 of Schedule 1 of the Regulations under the heading “Bridging E (Class WE)” identifies two subclasses at sub-clause 4, namely “050 Bridging General” and “051 Bridging (Protection Visa) Applicant”. The reference to “050 Bridging General” is to subclass 050 in Schedule 2 which specifies under 050.2 primary criteria of two types that all applicants under this criteria must satisfy: namely, criteria to be satisfied at the time the application is made and criteria to be satisfied at the time of the decision. Clause 050.223 is one of the criteria to be satisfied at the time of the decision. That clause provides that:
The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
10. Section 73 of the Act provides that:
If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
11. “Eligible non-citizen” is relevantly defined in s.72(1) of the Act.
12.Section 41(1) of the Act provides that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions. Section 41(3) provides that in addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection. Regulation 2.05(1) and (2) provide:
(1)For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).
Note: Regulation 2.40A prescribes conditions in relation to special purpose visas taken to have been granted to airline positioning crew members and airline crew members.
(2)For subsection 41(3) of the Act, the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2.
Note: Conditions referred to by number in Schedule 2 are set out in Schedule 8: see the definition of condition in regulation 1.03.
13.Returning to Schedule 2, and Part 050, detailed provision is made for mandatory and discretionary imposition of conditions on subclass 050 Bridging visas, depending on the circumstances: see clause 050.6. The following clauses applied to the applicant in this case:
050.617
(1)In any other case—any 1 or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed.
(2)Condition 8116 must not be imposed unless the applicant is in a class of persons specified by the Minister, by legislative instrument, for this subclause.
050.618
In addition to any other condition imposed by another provision of this Division, condition 8564 may be imposed.
In addition, cl.050.212(2) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) specifies that, at the time of application:
An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.
ADDITIONAL BACKGROUND
In the present case, the applicant made arrangements to depart Australia on 21 May 2022. Notwithstanding that, the Minister notified the applicant that he would be removed from Australia on 28 April 2022. There was some debate about whether the removal of the applicant from Australia while legal proceedings were pending would constitute a contempt of court.
In any event, the applicant sought an interlocutory injunction to restrain his removal from Australia while judgment in this matter was reserved, and sought a final injunction to restrain his removal at any time. When the court pointed out to the applicant that his own case was that he would be leaving Australia on 21 May 2022, he said that he only sought a final injunction until 21 May 2022.
The applicant claimed that there was utility in him being granted a bridging E visa prior to his departure from Australia because it would allow him to spend time with his wife and family in Australia before returning to Vietnam. The applicant submitted that it was not unrealistic to hope that the court would quickly remit the matter to the Tribunal, and the Tribunal would grant the applicant a bridging E visa before 21 May 2022.
As there was no suggestion that the Minister would remove the applicant from Australia before 28 April 2022, the court stated at the end of the hearing that it would endeavour to deliver a final judgment before then, and did not grant the interlocutory injunction.
MATERIAL RELIED UPON
At the hearing on 6 April 2022, the applicant relied upon:
(a)the affidavit sworn or affirmed by Mr Luke Tran on 7 December 2021;
(b)the affidavit affirmed by the applicant on 15 December 2021;
(c)the court book filed on 17 February 2022;
(d)the amended application filed on 9 March 2022;
(e)the applicant’s written submissions filed on 9 March 2022;
(f)the applicant’s written submissions in reply filed on 4 April 2022;
(g)the applicant’s affidavit affirmed on 5 April 2022.
At the hearing on 6 April 2022, the Minister relied upon:
(a)the court book filed on 17 February 2022; and
(b)his written submissions filed on 30 March 2022.
GROUND OF REVIEW
The only ground of review in the application filed on 17 December 2021 and amended on 9 March (“the amended application”) is:
The second respondent (Tribunal) misapplied the relevant legislation, failed to give proper, genuine or realistic consideration to a material aspect of the review or made a legally unreasonable finding, thereby making a jurisdictional error.
Particulars
a)Clause 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) required decision makers to take 2 steps, in the following sequence:
i.Step 1: to determine what visa conditions should be imposed (if any) and why, if the visa were to be granted;
ii. Step 2: to determine whether such conditions would be abided by.
b)A delegate of the first respondent determined pursuant to cl 050.223 that she would impose conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 if the visa were granted.
c)The delegate found that cl 050.223 was not satisfied and therefore refused to grant the applicant a Class WE (Bridging E) visa.
d) On review, the Tribunal purported to assess whether cl 050.223 was satisfied.
e)Paragraph 368(1)(b) of the Migration Act 1958 (Cth) required the Tribunal to “set out the reasons for the decision”.
f)The Tribunal assessed cl 050.223 from paragraphs [27] to [52] of its Decision Record.
g)The Tribunal stated at [44] that the following visa conditions of Schedule 8 to the Regulations should be imposed: 8101, 8207, 8401, 8506, 8510, 8512 and 8564.
h)The imposition of all those conditions would be discretionary, pursuant to cl 050.617 and cl 050.618.
i)The Tribunal’s Decision Record does not disclose any reasons why it would exercise the discretion the way it did, despite its obligation to do so under to s 368(1). All the Tribunal did from [45] to [49] was to find that some of the conditions it stated should be imposed would not be abided by, without reasoning why they should be imposed in the first place.
j)Although the Tribunal did discuss from [27] to [43] some historical facts that could have a bearing on why the conditions it stated should be imposed ought to be imposed, it did not give reasons why those facts should lead to the imposition of such conditions, despite its obligation to do so under s 368(1).
k)It follows that the Tribunal misapplied cl 050.223, failed to give proper, genuine or realistic consideration to the ‘decision’ on what visa conditions should be imposed (and why) and/or did so legally unreasonably.
l)Particular 1(k) is strengthened by the fact that the conditions which the Tribunal determined should be imposed if the visa were granted were the same as those that the delegate determined should be imposed if the visa were granted.
The applicant argued that the Tribunal made a jurisdictional error by not genuinely considering what conditions should be imposed on the applicant’s bridging E visa, and by deciding unreasonably that the seven conditions should be imposed. Further, the applicant argued that the Tribunal made a jurisdictional error by failing to give reasons for saying those conditions should be imposed, and by failing to make findings of fact supporting that conclusion.
The Minister argued that there was no obligation to give reasons for saying that the seven conditions should be imposed. The Minister also argued that the Tribunal in the present case was only reviewing the decision to refuse the bridging visa, and not the decision
tothat certain conditions should be imposed.This ground primarily concerns paragraph 44 of the Tribunal’s reasons for decision, which is as follows:
In this case, cl 050.6 applies because of the potential for conditions to be set in the provision of a visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case: 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).
The Tribunal did not say elsewhere in its reasons for decision why it considered that the seven conditions it nominated, and which the delegate had also nominated, should be imposed in the circumstances of this case. However the Tribunal did say, in paragraph 45 of its reasons for decision, that:
The Tribunal notes the documented and oral evidence of the applicant that he is willing to accept conditions of 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).
I would have thought that the applicant indicating that he would accept the imposition of those conditions obviated any need for the Tribunal to explain why it considered that they should be imposed. However, as the Minister did not take that point, I sought the parties’ post hearing submissions in relation to it.
The applicant argued that the applicant merely meant that he would accept any conditions that were imposed on his bridging visa, not that he accepted that they should be imposed, or imposed without reasons being given. Moreover, the applicant argued, if the applicant did concede that the seven conditions should be imposed, that did not permit the Tribunal to avoid its duty to make the correct or preferable decision.
What the applicant actually said at paragraph 3 of his statement dated 14 November 2021 was:
I accept the imposition of conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 against my Bridging E visa if granted.
Those were the same conditions as the delegate had said that she would impose on the applicant’s Bridging E visa if granted. The delegate did not give any reasons for saying that she would impose those particular conditions.
Nevertheless, the applicant’s concession that he would accept the imposition of those conditions meant that the choice of those conditions ceased to be an issue. The point of courts and tribunals giving reasons is to explain why particular facts or submissions have been rejected. There is no need for courts or tribunals to explain why concessions have been accepted. Concessions become the starting point or the substratum for consideration of the disputed matters before the court or tribunal.
The applicant did not say anywhere in his statement that the seven conditions, or any of them, should not be imposed. Rather, the thrust of his statement was that he would abide by any conditions imposed. Everything else in his statement was either of a compassionate nature, or was designed to persuade the Tribunal that the applicant regretted his past misdeeds and would not repeat them. For example, he said that:
(a)he became “unlawful” from a migration point of view because he was “silly and stupid”;
(b)he does “not disregard immigration laws at all”;
(c)the drug offences he committed were “another biggest mistake I have made in my life”; and
(d)he had abided by all other laws in Australia.
The basic issue before the Tribunal was whether the applicant would abide by any visa conditions imposed. The applicant is now seeking to backtrack, and rely on a different case to the one he put to the Tribunal.
The Tribunal’s duty was to provide reasons for its determination of contested matters. In my view, the applicant’s concession that he would accept the imposition of the seven conditions obviated any need for the Tribunal to provide reasons for deciding that the seven conditions should be imposed. It follows that the Tribunal did not make any error in not providing such reasons, and that the application must fail.
However, for completeness, I will address the case as originally put by the parties.
The applicant noted s.368(1) of the Migration Act 1958 which provides as follows:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
The applicant relied on Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2003) 70 ALD 289; [2002] FCA 197. In that case, Finkelstein J said:
[6]In order to obtain a bridging visa an applicant must satisfy certain criteria at the time of application and other criteria at the time of the decision. The criteria to be satisfied at the time of decision are found in Sch 2, cl 050.22. Those that are presently relevant are:
050.223The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.
050.224If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.
The delegate who considered the bridging visa applications was of the opinion that the conditions to the following effect should be imposed:
8101 You must not engage in work in Australia.
8207 While in Australia you must not study or train.
8401You must report at a time or times and at a place (to be specified by your case officer).
8505You must continue to live at the address specified by you before the grant of the visa.
8506You must notify Immigration at least 2 working days before you change your address.
8507You must pay or make an arrangement that is satisfactory to the Minister to pay the costs of your detention (your case officer will specify that payment must occur within a specified period).
The delegate happened to be an authorised officer for the purposes of s 269 of the Migration Act. Under that section an authorised officer may require and take security for compliance with the conditions imposed on a visa. The delegate decided that each bridging visa applicant should give security of $10,000 for compliance with the conditions.
…
[11]In each case the tribunal found that it was appropriate to impose the conditions. There is no challenge to this finding. The tribunal then considered whether the conditions would be complied with. It decided that the bridging visa applicants would not abide by the conditions, notwithstanding that each applicant had informed the tribunal that he would do so. Now I come to the difference in approach. I will explain it by reference to one decision of each member, which can be taken to be representative of all other decisions made by that member. I have selected No V 1304 of 2001 to be the representative case for one member and No V 1305 of 2001 for the other. In No V 1304 of 2001 the tribunal was not satisfied that the visa applicant would abide by any of the conditions. The following passage explains why:
The tribunal explained the conditions to the visa applicant and he indicated that he understood, and would abide by them. The tribunal does not accept the assurances given by the visa applicant as he has already misled DIMA with respect to his application for the subclass 420 visa and in doing so has committed an offence under the Migration Act. He has shown a blatant disregard for the provisions of Australian migration law and the tribunal finds no evidence that this attitude has changed. There is a high risk that the visa applicant will disappear rather than run the risk of a negative reply to his application for a protection visa and subsequent forced return to Sri Lanka. The tribunal finds that the visa applicant will not abide by the conditions. The tribunal must now consider whether the provision of security pursuant to cl 050.224 will assist to ensure compliance. As the visa applicant has no personal assets in Australia or elsewhere to place at risk, the tribunal finds that the provision of a security would not ensure compliance with conditions. The tribunal finds that visa applicant [sic] does not satisfy cl 050.223.
In the other case the member found that the visa applicant would breach conditions 8101, 8401 and 8506. The relevant passage from the reasons reads:
The tribunal explained the visa conditions to the visa applicant and he assured the tribunal that he would abide by them. In determining whether to accept the visa applicant's assurances, the tribunal takes account of the visa applicant's past history of deliberate disregard of Australian migration law. He knowingly came to Australia on an entertainment visa despite not being an entertainer. His father paid an enormous amount for the arrangements to be made for the applicant to come to Australia. In his interview on 5 November 2001, the visa applicant told of the difficulties he faced in Sri Lanka and that he had been promised a job in Australia. He spoke of the economic hardships his parents would face and how they had been promised that the visa applicant would have a job here and be able to live well and send money back. The tribunal is not in a position to judge the visa applicant's claims for a protection visa but is satisfied that part of his and his father's motivation in the visa applicant coming to Australia was for him to be able to find work which he had been unable to do in Sri Lanka. The visa applicant has little money with him. The tribunal is of the view that there is a high risk that if the visa applicant is released from detention, he will not keep in contact with DIMA and that he will work. The tribunal is not satisfied that the visa applicant will abide by the conditions of the visa and finds that the applicant does not satisfy cl 050.223 of the regulations.
…
[22]In reaching a decision about security, there are several steps that a decision-maker must undertake. Approaching the steps in the correct order is as important as getting the steps themselves right. As I see it (and in expansion of what was said in Tennakoon), the steps are:
(1)the decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa;
(2)next, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken);
(3)if the answer is yes, no security should be imposed. If, on the other hand, the answer is no, the decision-maker must proceed to the next question which is,
(4)will the conditions be complied with if security is taken?;
(5)if the answer is no, the visa ought not to be granted because the criterion set out in cl 050.223 will not be met. If the answer is yes, security should be required and the decision-maker must assess the appropriate amount and type of security to be imposed;
(6)if security has been required, the decision-maker must see whether or not it has been lodged. If it has not been lodged, the visa application should be rejected because cl 050.224 will not be satisfied. If it has been lodged (provided all other relevant criteria have been met), the visa must be granted.
The applicant also relied on Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1629, where Finn J said at [12]:
The criteria imposed by cl050.213 is of a quite distinctive character. It relates to the Minister's being satisfied as to future matters. That satisfaction may remain the same, or may change, between the time of the application and the time of the decision. Whatever the decision arrived at in relation to the time of application, the determination at the time of the decision is necessarily the truly operative one if it is adverse to the applicant. And if it is adverse to an applicant, it is unnecessary in my view for the Tribunal positively to make a finding in relation to the Minister's satisfaction at the time of the application. Such a finding would add nothing to an applicant's understanding of why his or her application was unsuccessful. If it was, in fact, adverse to the applicant it would of itself have resulted in the application failing in any event. If it was favourable to the applicant it would nonetheless have been ineffective, having been supplanted by the later adverse determination at the time of decision. It is, in my view, unsurprising that the criteria have recently been amended in the fashion I have noted.
The applicant argued at paragraph 22 of its submissions filed on 9 March 2022 that:
… Combining Kumar with VAAN, such an ultimate finding required the Tribunal to “positively” make that Anterior Finding, which can be described as follows: the decision-maker must decide what conditions (if any) ought to be imposed on the grant of the BVE, giving reasons why to impose them. Although the Tribunal stated what conditions ought to be imposed, it did not state why, which means that its anterior finding was incomplete. …
The applicant said that the Tribunal had not followed the pathway specified in steps 1 and 2 of VAAN, and had not complied with s.368(1) of the Act by not making findings and giving reasons for deciding that certain conditions should be imposed.
The applicant also relied on Minister for Home Affairs v Benbrika (2021) 388 ALR 1; [2021] HCA 4 where the High Court said, at [43]:
The submission raises an issue touched on in McGarry. It will be recalled that the regime in that case conditions the making of an indefinite detention order on a court’s satisfaction that the offender is a danger to society, or some part of it, by reason of factors that include the risk that the offender would commit further indictable offences if released. As the joint reasons observed, the association between being a “danger to society” and recidivism is not without difficulty given that a fundamental premise of the criminal law is that conduct is regarded as criminal for the very reason that its commission harms society, or some part of it. On that view, the court’s satisfaction of the risk of re-offending would suffice to establish that the offender is a danger to society and support the making of an indefinite detention order. However, it was held that correctly understood the power to make the order is only enlivened upon finding that the offender would engage in conduct the consequences of which would be grave or serious for society as a whole, or some part of it; a bare conclusion that it was probable the offender would commit some indictable offence in the future would not suffice.
(citation omitted)
The Minister accepted that, in considering cl.050.223, the Tribunal had to firstly decide what conditions should be imposed and then decide whether the applicant would abide by them. The Minister submitted that the Tribunal clearly followed that process. That much is not disputed.
However, the Minister then argued that the Tribunal was not obliged to give reasons for deciding that particular conditions should be imposed. The Minister said that was because there was no statutory obligation to give reasons. That submission was based on the fact that s.41(3) of the Act, which permits the imposition of conditions, does not require reasons to be given. However, that completely ignores the Tribunal’s statutory obligation under s.368(1) of the Act.
The Minister also referred to Public Service (NSW) v Osmond (1986) 159 CLR 656; (1986) 9 ALN N85; (1986) 63 ALR 559; (1986) 60 ALJR 209; [1987] HCA 7, where Gibbs CJ said at [6]:
… There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons. …
Again, it is immaterial that there is no common law requirement to give reasons, when there is an express statutory requirement, such as s.368(1) of the Act, to give reasons.
The Minister further argued that the Tribunal did not actually impose any conditions; it just had to decide whether the applicant would abide by any conditions that were imposed. That is not correct. The Tribunal had to decide what conditions should be imposed: VAAN, step 1.
The Minister sought to distinguish Benbrika on the grounds that it concerned a different statutory scheme. However, that does not answer the basic point made in Benbrika, which is, by analogy, of general application.
The Minister also argued that the Tribunal was not obliged to give reasons for a sub-set of reasons, being the reasons for deciding that certain conditions should be imposed. For that proposition, the Minister relied on Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; (2000) 168 ALR 407; (2000) 74 ALJR 405; (2000) 21(2) Leg Rep 2; [2000] HCA 1 where McHugh J said at [67]:
In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
Durairajasingham was dealing with a very different point. It was addressing whether the Tribunal had to give reasons for deciding that a claim was implausible. In the present case, the question is whether the Tribunal had to give reasons for an essential step in the pathway, namely, what conditions should be imposed.
The Minister also took issue with the applicant saying that the Tribunal was exercising a discretion, when it was actually reaching a state of satisfaction under s.73 of the Act. Ultimately, that is so. But to get there, the Tribunal had a discretion about what conditions should be imposed.
In relation to VAAN, the Minister did little more than note that it addressed a different point, namely, the provision of security. Nevertheless, it was a careful and detailed consideration about the process to be followed by decision-makers in relation to cl.050.223.
The Minister also asserted that s.368(1) of the Act did not impose an obligation on the Tribunal to give reasons for deciding which conditions should be imposed. I do not accept that assertion. In my view, s.368(1) of the Act required the Tribunal to make findings about the conditions that should be imposed and the reasons that they should be imposed, because deciding what conditions should be imposed was a critical step in the decision that the Tribunal had to make.
The Minister also argued that, as there was no obligation to give reasons about the conditions that should be imposed, the court should be slow to draw any inferences from the absence of reasons. For that argument, the Minister relied on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1, where the court said, at [31]-[33] and [66]-[67]:
[31]The premise upon which the Federal Court found jurisdictional error on the part of the tribunal was that the tribunal overlooked the agent’s request, or did not consider it and had no good reason for not doing so. The premise depended for its correctness upon the content of the tribunal’s obligation under s 430 to give reasons for its decision. Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered.
[32]Section 430 presupposes a logical structure to the tribunal’s reasoning which involves the following steps:
(1)Identification of the relevant evidence or material upon which findings of fact can be based.
(2)Making findings of fact based on the relevant evidence or material.
(3)Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
Section 430 therefore does not require that the tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the tribunal could base any findings or its ultimate decision. The nature of the tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.
[33]In any event, the tribunal’s reasons were sufficient unto the day for what they disclosed about its approach to the agent’s letter. The tribunal made express reference to the letter and its contents so far as they went to SZGUR’s forgetfulness, depression and bipolar mood disorder. It referred to the psychiatrist’s report and the statutory declarations which were provided with the letter. The absence of a reference to the agent’s request in this context provides no support for an inference that the request was overlooked. The tribunal having read the letter must have read the agent’s request. It is difficult to see by what mental process the tribunal could be said not to have considered that request. The tribunal’s reasoning about the effect of SZGUR’s mental state on his recollection of matters of central importance to his claim suggests that it might well have formed the view that an independent assessment of his mental health would have at most confirmed the claims made about it by the agent without resolving the important contradictions and inconsistencies which were, in the end, fatal to his application. It may be that the tribunal would be open to criticism for that process of reasoning, but it is a process of reasoning about the evidence and material before the tribunal which could not disclose jurisdictional error. It should also be noted that there is nothing to suggest that SZGUR could not have obtained from his psychiatrist a more expansive report than the bare certificates which were provided. That report could have addressed the very matters of which the agent asked the tribunal to arrange an independent assessment.
…
[66]The minister submits that clearly the tribunal read the migration agent’s letter of 20 June 2008. In its reasons the tribunal referred to and summarised the majority of the contents of the letter, but it did not make reference to the request for a further medical examination of the first respondent. The minister submits that Rares J erred in drawing an inference that the failure by the tribunal to refer to the request in its written statement meant that the tribunal had not considered the request. That submission should be accepted.
[67]An applicant in the Federal Magistrates Court for judicial review of the tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v Deputy Commissioner of Taxation, Gaudron J made a similar point with respect to the ADJR Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the minister to demonstrate the positive proposition that the tribunal had indeed considered the request.
(citations omitted)
SZGUR does not assist the Minister. It basically says that the Tribunal does not have to make findings about matters that were not material to its decision. In the present case, the decision about which conditions to impose was central to the Tribunal’s decision.
The Minister also relied on Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50 at [25], where the High Court said:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.
(citations omitted)
M64 does not assist the Minister. It applies where there is no duty to give reasons. By s.368(1) of the Act, the Tribunal was plainly obliged to give reasons.
The applicant argued that the court should find that the Tribunal’s decision was legally unreasonable, because the court could not know the reasons for the Tribunal deciding that particular conditions should be imposed.
The Minister argued that the Tribunal’s decision was not unreasonable, on the basis that the Tribunal was not obliged to give reasons for deciding that certain conditions should be imposed.
For the reasons discussed, I do not accept the premise of the Minister’s argument on this point.
However, in my view, the applicant cannot be heard to say that the Tribunal was unreasonable in deciding that certain conditions should be imposed, in circumstances where he accepted that he was willing to accept those conditions.
All in all, I consider that the Tribunal was not obliged to set out in its reasons for decision findings about, and the reasons for deciding that, particular conditions should be imposed on any bridging E visa the applicant was granted because the applicant said that he would accept those conditions. The Tribunal was thereby entitled to start its consideration from the point that the particular conditions should be imposed, and did not have to go back and explain the underpinnings of that aspect of the decision.
It follows that the application should be dismissed with costs.
INJUNCTIONS
As the matter has been determined on a final basis, there is no need to consider the application for an interlocutory injunction. As the applicant has been unsuccessful, he cannot establish a prima facie case, or any case, a building block for a final injunction. The question of the balance of convenience therefore does not need to be considered. The applications for injunctions will be refused.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 14 April 2022
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