Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 213
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 213
File number(s): MLG 447 of 2020 Judgment of: JUDGE FORBES Date of judgment: 25 November 2021 Catchwords: MIGRATION – Sponsored Business owner visa –regulation 892.211 – Time of application criteria – meaning of “included in” the visa application – close temporal connection required – alleged fraud or negligence
by migration agent and solicitor – no jurisdictional error
by TribunalLegislation: Migration Regulations 1994 (Cth), cl 892.211 Cases cited: Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115
Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417
Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Division: Division 2 General Federal Law Number of paragraphs: 84 Date of hearing: 21 October 2021 Place: Melbourne Applicant: In Person Solicitor for the First Respondent: Mr Orchard Solicitors for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 447 OF 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHIN SADAAT MIRSAFI NIASAR
First ApplicantMOHAMMADALI NAJAFALIHAMEDANI
Second ApplicantMIRAN NAJAFALIHAMEDANI
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the amount of $7,853.
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 FORBES
INTRODUCTION
The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal
(“the Tribunal”) made on 7 January 2020. The Tribunal affirmed a decision of a delegate
of the Minister (“the delegate”) not to grant the Applicants a Business Skills (Residence) (Class DF) Subclass 892 visa (“the visa”).
The First Applicant applied for a visa on 14 December 2016. She operated a hairdressing and beauty business at the time.
A requirement for the grant of a subclass 892 State/Territory Sponsored Business Owner visa was that the Applicant meet cl 892.211 in Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”), which stated:
892.21 Criteria to be satisfied at time of application
892.211
(1)The applicant has had, and continues to have, an ownership interest
in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
(2) For each business to which subclause (1) applies:
(a) an Australian Business Number has been obtained; and
(b)all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned
in subclause (1) have been submitted to the ATO and have been included in the application.
The delegate refused to grant the Applicants the visa because the Applicants did not satisfy
the criteria in cl 892.211 requiring that Business Activity Statements (“BAS”) for the period 14 December 2014 to 13 December 2016 be included in the visa application at the time
the application was made.
The Tribunal affirmed that decision, finding on the evidence before it that no BAS had been included in the visa application at the time the application was made.
For the reasons set out below I find that the Tribunal’s decision is not affected by any jurisdictional error.
I have some sympathy for the Applicants’ predicament. In circumstances where the Applicants appear to be operating a successful business and possess skills which may be in demand as the Australian economy recovers from the COVID-19 pandemic, their predicament may
be deserving of Ministerial intervention, but having found no error in the Tribunal’s decision,
I must dismiss the application.BACKGROUND
The following background facts are derived from the materials in the Court Book and the submissions filed by the parties, including the oral submissions and concessions made by the Applicants at the hearing before me on 21 October 2021.
The material facts are not in dispute.
The First Applicant is a citizen of Iran. On 14 December 2016 she applied for the visa.
The Applicant nominated ‘Victoria Scissors’ as the main business in the application.
The Applicant’s husband (“the Second Applicant”) and child (“the Third Applicant”) applied
for the visa as members of her family unit. The Applicant was assisted in the preparation
of the application by a migration agent.On 21 March 2018, the Department wrote to the Applicant, via email to her migration agent, requesting that she provide, among other things, BAS lodged for the period 14 December 2014 to 14 December 2016, as well as other information relating to the operation of the business.
On 18 April 2018, the Applicants’ representative provided the Department with a large volume of business-related documents, including relevantly copies of 15 BAS.
On 1 May 2018, the delegate refused to grant the visa on the basis that the Applicant did not satisfy the provisions of the Regulations. The delegate found that the Applicant had not lodged BAS covering the requisite period of 14 December 2014 to 13 December 2016 with her application.
As to the documents which had been furnished by the Applicant’s representative, t
he delegate found that aside from the ATO Integrated Client account statement dated 1 July 2016 to 25 February 2017, the BAS statements provided by the Applicant were outside the relevant period. The delegate also found that the BAS from 1 October 2014 to 31 December 2016 were unlodged[1].
The delegate concluded that the Applicant had not met the legal requirements in cl 892.211.
[1] Decision record at Court Book (CB) 326-327
At the hearing before me on 21 October 2021, the Applicants concede that BAS for the relevant period were not included in the visa application. The Applicants also concede that prior
to making the visa application on 14 December 2016, they had not provided BAS to their migration agent and that he could not have included those statements in the application.In fact, one of the principal concerns agitated by the Applicants was that when their migration agent did furnish BAS to the Department in April 2018, he did so without their knowledge. They contend that the agent was not authorised to obtain their tax information and documents and that he obtained BAS and other tax information by improper means.
THE TRIBUNAL
On 13 May 2018, the Applicant lodged an application for review of the delegate’s decision.
On 16 July 2018, the Applicants’ representative forwarded to the Tribunal registry a large bundle of financial statements which were identified in the covering email as “BAS statements since June 2014”[2].
[2] CB341
On 4 February 2019, the Applicant appointed another solicitor to act as her representative
in the Tribunal proceeding.The application for review was supported by written submissions and other documents which the Applicant’s representative filed on 15 May 2019. The documents filed with the submissions included BAS for the period October 2014 to December 2016 and BAS for the period July 2018 to December 2018.
On 12 September 2019, the Tribunal invited the Applicants to comment on or respond
to information, namely that according to the Department file, BAS had not been provided with the application, rather they were provided in April 2018 following a request from the Department. As to the relevance of this issue, the Tribunal drew the Applicants’ attention
to the then recent decision in Nasizzadeh (sic)[3]. The Applicants sought and were grantedan extension of time to address this query.[3] Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115
On 11 October 2019, the Applicants’ representative provided a response. The representative contended[4] that the Applicant had submitted the BAS to the ATO at the time of lodgement and “according to the decision of the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417…evidence of BAS provided before the time of decision should be construed as included in the application in order to satisfy [cl 892.211(2)(b)]”.
[4] CB407-408
On 1 November 2019, the Applicants attended a hearing before the Tribunal to give evidence and present arguments, with the assistance of an interpreter.
On 29 November 2019, the Applicants’ representative provided a post-hearing submission which addressed Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115 (“Nasirzadeh”) and sought to distinguish it from the facts pertaining to the Applicants’ case. In those submissions the Applicants contended that in accordance with s 54 of the Migration Act 1958 (Cth) (“the Act”) the Minister must have regard to all information in an application for a visa, which includes information submitted with the application or further relevant information provided at any time before the Minister makes a decision to refuse or grant the visa (s 55). The Applicants further contended that “time of application criterion” should not be read to mean that evidence must be provided “at the time of submitting the application”. The thrust of the argument being that BAS provided after the lodgement of the application
but before the Minister’s decision should be taken to have been “included in the application”.TRIBUNAL’S DECISION
On 7 January 2020, the Tribunal affirmed the decision under review.
The Tribunal found that Victoria Scissors was “the main business” pursuant to cl 892.211(1) of the Regulations[5]. The Tribunal found that cl 892.211(2)(a) of the Regulations was satisfied because Victoria Scissors was registered with an Australian Business Number on 20 December 2013 and continued to be registered, and the first limb of cl 892.211(2)(b) was also met because all BAS were submitted to the ATO prior to the visa application date[6].
[5] Tribunal decision at [16]
[6] Tribunal decision at [18]-[19]
The Tribunal found, however, that the central issue was whether the Applicants met the second limb of cl 892.211(2)(b) which required that copies of the BAS be included in the application[7]. (my emphasis)
[7] Tribunal decision at [20]
In that respect the Tribunal found on the evidence before it that no BAS were provided with the visa application. The Tribunal found that according to the Departmental file, BAS were provided by email on 18 April 2018, some 16 months after the visa application was lodged
on 14 December 2016[8].[8] Tribunal decision at [24]
The Tribunal found that in relation to the second arm of cl 892.211(2)(b), the wording
of the clause expressly stated that BAS were to be “included in the application”. The Tribunal was not persuaded by the Applicant’s argument that that the BAS provided on 18 April 2018 were “included in the application” by reason of the operation of ss 54 and 55 of the Act.The Tribunal found that in Nasirzadeh, the Court expressly considered cl 892.211(2) and found that the Tribunal was required to make a factual finding on whether or not the BAS had been “included in” the application as a time of application criterion[9].
[9] Tribunal decision at [34]
The Tribunal was not satisfied that the provision of the BAS on 18 April 2018, some 16 months after the application was lodged, had a close temporal connection to the application.
The Tribunal noted that this conclusion was supported by Katzmann J in Anand v Minister for Immigration & Citizenship (2013) 215 FCR 562 (“Anand”) where her Honour determined that a period of five months stretched the term “accompanied by” beyond the intended temporal connection[10]. The Tribunal accordingly found that the Applicant was unable to meet the criterion in cl 892.211(2)(b)[11].[10] Tribunal decision at [37]
[11] Tribunal decision at [38]
THE PRESENT PROCEEDINGS
On 11 February 2020, the Applicants lodged an Application for judicial review of the Tribunal’s decision.
The Application relies upon a ground of review which is expressed in the following terms:
Ground 1: The AAT erred by finding that that provision of the Business Activity Statements, does not have a close temporal connection to the application lodged.
1. The findings by the AAT in [37] that “The Tribunal is not satisfied that provision of the Business Activity Statements in April 2018, has a close temporal connection to the application lodged in December 2016, some 16 months later”, was affected by jurisdictional error for the following reasons.
a) The Tribunal failed to consider the difference between the case
of Anand v Minister for Immigration And Citizenship (2013) 215 FCR 562 (Anand) and the matter under review.Particulars
The protection claims
a) At [37], the AAT found that “The Tribunal is not satisfied that provision of the Business Activity Statements in April 2018, has a close temporal connection to the application lodged in December 2016, some 16 months later. This conclusion is supported by Katzmann J in Anand when he determined that a period of five months stretched the term “accompanied by” beyond the intended temporal connection.”
On 20 May 2020 orders were made for the preparation of these proceedings for hearing. Those orders included an order that other than the Court Book of relevant documents, all evidence
to be relied upon by the parties must be presented by way of affidavit.
Pursuant to those orders, the Minister filed and served a Court Book of 462 pages in electronic format on 3 June 2020. The Minister also filed an outline of submissions on 14 July 2021.
The matter was listed for hearing before Judge Kelly on 28 July 2021.
Prior to that hearing, the Applicants did not file any affidavits or submissions. However,
on 23 July 2021 at 3.58 pm, the Applicants lodged a substantial number of documents
by e-Lodgment. The Court Registry advised the Applicants that these documents were marked “Pending” because they had not been lodged in proper form (i.e. by affidavit).The parties to the proceeding appeared before Judge Kelly on 28 July 2021. After hearing the parties, his Honour afforded the Applicants an opportunity to file and serve any affidavits
in proper form on which they proposed to rely and to file and serve an outline of submissions of no greater than 10 pages. Notations to his Honour’s orders record that the Third Applicant, on behalf of the Applicants, complains of no mistake by the Tribunal but complains
of dishonest conduct by one or more solicitors who have been retained to represent
the Applicants before the Tribunal.On 13 August 2021, the First Applicant filed an affidavit of 3 paragraphs which annexed sizeable bundles of correspondence, emails and other communications between the Applicants and their former migration agent, former solicitor and other persons, taxation and accounting documents and a 9 page submission to the Court. In total, the documents filed totalled some 126 pages.
On 27 September 2021, the Minister filed a further written outline of submissions.
FINAL HEARING
For the purposes of the trial of the matter, the only evidence I have before me is the Court Book filed on 3 June 2020 and the affidavit filed by the Applicant on 13 August 2021.
At the hearing, the Third Applicant, Mr Miran Najafalihamedani, made submissions on behalf of all Applicants. He was assisted as necessary by a Persian interpreter, although it became clear as the proceeding unfolded that the Third Applicant was well prepared for the hearing, had a good grasp of English and was able to understand the procedure of the Court.
The Third Applicant said he relied on the affidavit filed on 13 August 2021 and submitted that the correspondence annexed to that affidavit showed that the family’s representatives had not acted appropriately and had been dishonest. I note at this juncture that the Minister’s counsel
did not object to the Applicant’s affidavit being received into evidence, but did so on the basis that he objected generally to the content on the basis that it was not relevant to the issues
to be determined by the Court.Mr Najafalihamedani said that he and his family did not blame the Tribunal for the decision and that it was all the fault of the migration agent. He argued passionately, albeit without specific detail, that his lawyers had not arranged their documents properly and had not done their job. He contended that the migration agent had accessed BAS for the business without their knowledge and that they do not know how he did that. He submitted that the migration agent had made “various violations” in his management of their visa application, and pointed generally to the documents annexed to the First Applicant’s affidavit. He also complained that the migration agent had not told the family when their case had been dismissed by the delegate and that the agent had tried to cover up this fact.
Relevantly, in the course of his submissions both written and oral Mr Najafalihamedani made a significant concession which goes directly to the question of jurisdictional error.
Mr Najafalihamedani submitted that at the time the visa application was made, the Applicants had not sent any BAS to the migration agent. Indeed, he goes further in his written submission and says that even when the migration agent did send BAS and other documents to the delegate on 18 April 2018, the agent did not access those documents from the Applicants. He accepts that the BAS were not included with the visa application when it was made.
The thrust of the Applicants’ submission is that they were unaware of what was required
of them at the time of making their application and they had placed their faith in the migration agent to advise them properly and guide them through the process. They argue that the migration agent made errors and tried to cover them up by secretly accessing and submitting BAS to the delegate without their authority in April 2018, after he became aware that BAS had not been included in the visa application as required by the regulation[12].[12] Applicants written submission p.3 of SM-3 annexed to the affidavit of the First Applicant filed on 16 August 2021
The Minister relied upon his written outline of submissions filed on 14 July 2021
and 27 September 2021.The Minister submitted that cl 892.211(2) requires that BAS for the requisite period, being the two years immediately preceding the date of the application, must be included in the application.
It was submitted that BAS provided to the delegate 16 months after the application was made cannot in any sense be regarded as having been included in the application. To that end,
the Minister submitted that the Applicants’ circumstances are on all fours with the circumstances considered by Judge Driver in Nasirzadeh.The Minister submitted that where the Regulations impose a “time of application criterion” requiring that certain documentary evidence be included in an application or for an application to be accompanied by certain evidence, the regulation imports “an objective temporal test”.[13]
[13] Khan v Minister for Immigration [2018] FCAFC 85, per Tracey J at [15]-[16] (Charlesworth and Derrington JJ agreeing)
The Minister submitted that harshness of the outcome for the Applicants was not a matter
for consideration if the Tribunal correctly found that the BAS had not been included in the visa application.The Minister also submitted that the impugned conduct of the Applicants’ representatives
was of no moment in this case because it did not rise to the level of a fraud upon the Applicants, nor had the Applicants established that the representative’s conduct had the consequence
of stultifying or subverting the performance of the Tribunal’s statutory function[14].
In circumstances where the Tribunal was correct to find by any objective measure that the BAS were not included in the application, the subsequent conduct of the representatives, some16 months after the application was made and beyond, cannot give rise to jurisdictional error.[14] SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [49]-[51]
In a short reply, the Third Applicant submitted that the real question for the Court was how the migration agent got the BAS without the family’s authority. He stated that the agent was
to blame for the situation in which the family now finds itself.CONSIDERATION
I agree with the Minister’s submission that the decision of this Court in Nasirzadeh is on all fours with the circumstances of the current application. In that case the Court expressly considered cl 892.211(2) and found that the Tribunal was required to make a factual finding
on whether or not the BAS had been “included in” the application as a time of application criterion[15]. I consider the approach taken by Judge Driver to the salient question was undoubtedly correct and I consider myself bound to follow his Honour’s decision.
[15] Nasirzadeh & Ors v Minister for Immigration and Anor [2019] FCCA 1115 at [34]
In Anand, Katzmann J considered the meaning of the phrase “accompanied by” in relation
to cl 487.216 of the Regulations which imposed a requirement that a visa application
be “accompanied by” certain evidence.Her Honour held that the expression “accompanied by” should be construed having regard
to matters of context and the purpose of the regulation, one such matter being the heading “Criteria to be satisfied at the time of application”, which is taken to be part of the Regulation[16]. It is notable that the same heading sits above cl 892.211 which is the subject regulationin this case.[16] Anand at [21], citing Berenguel v Minister for Immigration and Citizenship (2010) 85 ALJR 251 at [15],[26]
In Anand, Katzmann J accepted that in some circumstances evidence supplied after the application is lodged might be regarded as accompanying an application. However, her Honour observed:
“Still there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient…..but the words “accompanied by” are not so elastic as to stretch to evidence, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps”[17].
[17] Anand at [29]
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (“Khan”) also dealt with a requirement under the Regulations that a visa application be “accompanied by” certain evidence.
In Khan at [32], Tracey J observed that even if there is some flexibility in the test, “nothing permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not”. His Honour reinforced that the test is an objective one.
In Nasirzadeh, Judge Driver held that the cl 892.221(2) requirement for BAS to be “included in” the visa application similarly imposes a time of application requirement which imports
the objective temporal test.It seems to me that the Applicants in this case have, perhaps understandably, conflated the two elements in cl 892.211(2)(b). Their written submission which was annexed to the affidavit contends that “we have provided all BAS on time with full payment of all taxes and 100% compliance with other laws, we believe that our business records are 100% correct and without problems”. This submission seems to be directed to the first limb of paragraph (b), namely that the Applicant submit to the Australian Taxation Office (ATO) all Business Activity Statements for the requisite period.
The Tribunal in the case found that the first limb of cl 892.211(2)(b) was met because all BAS were submitted to the ATO prior to the visa application.
However, compliance with Australian taxation and business laws and the timely submission
of BAS to the ATO does not satisfy the second limb of paragraph (b). The second limb
of paragraph (b) imposes the further requirement that the BAS which have been submitted
to the ATO should be included in the visa application itself. Both limbs are a “time
of application requirement” and satisfaction of the first (i.e. submitting BAS to the ATO) cannot satisfy the second.Allegations against former migration agent and solicitor
In Nasirzadeh, as here, the applicants argued that they had relied upon their migration agent
to provide all necessary documents to the Minister’s delegate and to the Tribunal.
Mr Nasirzadeh described himself as the “innocent victim” of the apparent failure by the agent to file the relevant BAS with the visa application.
In that case the court found there was no clear evidence making out that submission and it did not reflect a finding made by the Tribunal. Moreover, the court observed that even if it were so, the High Court has made clear that there are sound reasons of policy why bad or negligent advice or some other mishap does not lead to jurisdictional error by a decision maker[18].
[18] SZFDE v Minister for Immigration (2007) 232 CLR 189 at [53]
As to the conduct of the Applicants’ migration agent and solicitor in this case, I accept the submissions of the Minister.
In relation to the migration agent, Mr Eskandari, I agree with the Minister that even if the Court was to accept the allegations about the agent’s conduct, that conduct could only amount
to negligence in failing to advise the Applicants of the delegate’s decision and negligenceis insufficient to demonstrate jurisdictional error in the Tribunal’s decision[19]. Furthermore, any such negligence, if it occurred, has not caused the Applicants detriment in circumstances where they were able to lodge an application for review in time and where they were able to lodge submissions and appear at a hearing with the assistance of a solicitor.[19] Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 at [30]-[33]
As to whether there was negligence or failure by the migration agent to provide the relevant BAS with the visa application at the time it was made, I make two observations.
First, as found by the Tribunal at [36] of its reasons, it was the responsibility of the visa Applicant to ensure that all relevant evidence was provided when the visa application
was lodged[20]. The Tribunal’s decision record reveals that the Third Applicant completedthe visa application form and knew that the BAS were to be included.[20] Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
In Khan, Tracey J observed that the responsibility for obtaining the required documentary evidence and submitting it with the visa application rests on the visa applicant and the “Regulations give primacy to that consideration over personal considerations”[21].
[21] Khan at [22]
Secondly, there is no evidence that the relevant BAS were provided to the migration agent prior to, at the time of or any time shortly after the visa application was made. In fact the Applicants concede that the agent was not provided with the BAS and they express incredulity that he was able to access the BAS which he forwarded to the delegate in April 2018, some 16 months after the application was lodged.
I also accept the Minister’s submissions regarding the Applicants’ allegation that jurisdictional error arises from a fraud perpetrated by the migration agent. I accept that the alleged conduct of the migration agent did not rise to the level of a fraud upon the Applicants, nor have the Applicants established that the representative’s conduct had the consequence
of stultifying or subverting the performance of the Tribunal’s statutory function.The Applicants also complain that the solicitor who represented them in the Tribunal proceeding was negligent and engaged in a fraud. The impugned conduct appears to be an allegation that the solicitor provided various financial documents and written submissions
to the Tribunal contrary to the Applicants’ instructions.In relation to this alleged conduct, I again accept the Minister’s submission.
The emails annexed to the Applicants’ affidavit record a series of communications between
the Third Applicant and the solicitor regarding the provision of documents and submissions
to the Tribunal. I accept the Minister’s submission that the evidence of communications between the Applicants and their solicitor is insufficient to reveal a fraud on the Applicants
or a fraud on the Tribunal.The fundamental problem for the Applicants is that the relevant BAS were not provided with the visa application – a fact which they concede.
CONCLUSION
In order to be granted the visa sought, the Applicants needed to satisfy all the relevant criteria, including any time of application criteria. If they did not do so, the decision maker was obliged to refuse to grant the visa[22].
[22] Migration Act 1958 (Cth), s 65(1).
Clause 892.211(2)(b) imports an “objective temporal test” as to whether or not the BAS were included in the visa application.
In the present case, the BAS were either included in the visa application or they were not. The question is not whether the BAS was provided to the delegate; it is whether it was included
in the application.The Tribunal was required to make a factual finding to determine that question. On the evidence available to it, the Tribunal was not satisfied that the provision of the BAS
on 18 April 2018 had a close temporal connection with the visa application made
on 14 December 2016. The Tribunal accordingly found that the BAS had not been included
in the application and that the Applicants were unable to meet the criterion in cl 892.211(2)(b).The decision of the Tribunal in this case is unaffected by any jurisdictional error.
I acknowledge that this decision may produce a harsh outcome for Applicants who appear
to have gone some lengths since 2018 to produce tax, banking and business records in an effort to persuade the delegate and the Tribunal as to the bona fides of their business and their contribution to the local economy. As in Anand, it is possible that the applicants’ predicament arose from errors or omissions on the part of their migration agent. It may have arisen from
an unfortunate oversight on their part. I am unable to say.For the reasons set out above, the application for judicial review must be dismissed and costs should follow the event. I will make orders accordingly.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 25 November 2021
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