Purnama v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 619
•16 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Purnama v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 619
File number(s): SYG 179 of 2019 Judgment of: JUDGE LAING Date of judgment: 16 July 2024 Catchwords: MIGRATION - application for judicial review of a decision by an officer of the Administrative Appeals Tribunal regarding an application for fee reduction – whether the officer’s decision was illogical or unreasonable – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 24W
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 12.01
Migration Act 1958 (Cth) ss 347, 348
Migration Regulations 1994 (Cth) Sch 2, cl 602.215, 602.216, Reg 4.10, 4.13
Cases cited: Atta v Minister for Immigration & Anor and El Gindy v Minister for Immigration & Anor [2019] FCCA 3594
Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21
Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095
Fairy v Minister for Immigration and Border Protection [2018] FCA 729
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 17 August 2023 & 5 July 2024 Place: Sydney Counsel for the Applicant: Ms Z Graus Counsel for the First and Third Respondents: Mr G Johnson Solicitor for the First and Third Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 179 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID PRAKASA PURNAMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
COMMONWEALTH OF AUSTRALIA
Third Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
16 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision by an officer (Tribunal Officer) of the Administrative Appeals Tribunal (Tribunal). The Tribunal Officer refused an application for reduction of the applicable fee for review before the Tribunal. In result, the Tribunal found that it did not have jurisdiction to review a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa (medical treatment visa).
BACKGROUND
The applicant is a citizen of Indonesia who arrived in Australia in 2005 on a tourist visa. He subsequently made unsuccessful applications for visas. He has also resided in Australia without a visa for a period of time.
On 2 October 2018, the applicant applied for a medical treatment visa.
The Delegate refused the application on 18 October 2018. The Delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily. Accordingly, the Delegate found that this criterion in cl 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 12 November 2018, the applicant sought review of the Delegate’s decision by the Tribunal. On the same date, the applicant made a request for reduction of the applicable fee for his application. In support, the applicant made various claims regarding his financial situation and attached an ANZ Bank statement.
On 5 December 2018, the applicant was notified through a letter from the Tribunal Officer that his fee reduction application had been refused. The Tribunal Officer provided the following reasons:
You have declared that you are currently not employed, you have 2 dependants and you are supported by [a person] for food and accommodation. You have not provided details of any fortnightly expenses and you have further declared that a friend provided the money order to pay the reduced fee to the Tribunal.
With the limited amount of evidence provided, including information within the M11 request for fee reduction, you have not provided a complete picture of your current financial circumstances and furthermore, while the criteria for a medical Treatment (Visitor) visa does not include capacity to pay a review fee, persons seeking the grant of a medical Treatment (Visitor) visa are expected to meet costs associated with travel and stay in Australia if a visa were to be granted, and it is not anticipated that such persons would ordinarily be in circumstances in which payment of the full fee would cause severe financial hardship. Therefore, I am not satisfied that payment of the remaining application fee is likely to cause you severe financial hardship.
You must now pay the remaining $882.00 of the application fee by 19 December 2018. If the remaining $882.00 of the fee is not paid by the due date your application for review will be allocated to a Member to determine whether you have made a valid application. If you do not pay the fee, the member may decide you have not made a valid application. If your application is invalid, we cannot review the decision.
No response appears to have been received by the Tribunal. The remainder of the application fee remained unpaid.
On 11 January 2019, the Tribunal found that it did not have jurisdiction in the matter. It gave the following reasons for this:
3.Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 19 November 2018. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
4.Before the prescribed period expired, the applicant asked the Tribunal to reduce the prescribed application fee. An authorised officer decided to refuse the request and the applicant was advised of this decision by letter dated 5 December 2018. The applicant was asked to pay the application fee within 14 days of receiving the Tribunal’s letter. The Tribunal considers the applicant has been given a reasonable period to pay the fee since being notified of the authorised officer’s decision; however the fee has not been paid. The application for review is therefore not a valid application and the Tribunal has no jurisdiction in this matter.
RELEVANT LEGISLATION
The Tribunal’s jurisdiction to review the Delegate’s decision was contingent upon an application being properly made under s 347 of the Migration Act 1958 (Cth) (Act): s 348.
Section 347(1) Act provided:
347 Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i)if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii)if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii)if the Part 5-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
Regulation 4.10 of the Regulations prescribed the period of 21 days for the purposes of s 347(1)(b) of the Act.
Regulation 4.13 of the Regulations relevantly provided:
4.13 Tribunal review—fees and waiver
(1)Subject to this regulation, the fee for an application for review of a decision by the Tribunal is $1,764.
Note: The fee in subregulation (1) is subject to increase under regulation 4.13A…
(4)If the Registrar of the Tribunal is satisfied that the payment of the fee mentioned in subregulation (1) has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar may determine that the fee payable is 50% of the amount mentioned in subregulation (1).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 29 January 2019 relying upon the following grounds:
1.The Administrative Appeals Tribunal's notification of decision by Alita Hancock for the Registrar indicated that my application was refused on 11 January 2019 and they attached a copy of fee reduction refused of 5 December 2018.
2.The Tribunal made an error in refusing my application based on fee waiver contrary to the evidence before them and contrary to the information attached to my request for fee reduction dated 9/11/2018.
3.The Tribunal's decision to refuse my application is unreasonable and contrary to the evidence before it.
The grounds raised appeared to challenge the Tribunal Officer’s refusal of the fee waiver.
At the hearing of this matter on 17 August 2023, I drew attention to a number of authorities that appeared relevant to this issue.
In Fairy v Minister for Immigration & Anor (No.2) [2017] FCCA 3095 (First Fairy Decision), Judge Manousaridis dismissed an application challenging a determination by the Tribunal that it lacked jurisdiction in a matter. This was in circumstances where the applicant paid only 50% of the prescribed fee and the Registrar had not waived payment of the remaining 50% of the prescribed fee. His Honour reasoned:
3.At the final hearing of this matter Ms Wong, who appeared for the first respondent (Minister), submitted that, whether or not the Registrar’s decision was unreasonable or irrational was irrelevant to whether the Tribunal had jurisdiction to entertain the application for review. And that is for the simple reason that the applicant paid only 50% of the prescribed fee and the Registrar had not waived payment of the remaining 50% of the prescribed fee. Stated another way, the jurisdiction of the Tribunal to entertain an application for review was conditional on, among other things, the application for review being accompanied by the prescribed fee; or the application being accompanied by 50% of the prescribed fee and the Registrar waiving payment of the remaining 50% of the prescribed fee; or the application being accompanied by 50% of the prescribed fee and, if the Registrar refuses to waive payment of the remaining 50% of the prescribed fee, the applicant paying the remaining 50% of the prescribed fee within a reasonable time after the Registrar refused to waive its payment. In the circumstances before me, none of these three preconditions has been satisfied.
4.I accept Ms Wong’s submissions. A precondition to the Tribunal’s jurisdiction is that the prescribed fee accompany an application for review to the Tribunal; or, where the Registrar has waived payment of 50% of the prescribed fee, 50% of the prescribed fee accompany the application; or, where an application for the waiver of 50% of the prescribed fee has been refused, the applicant provide 50% of the prescribed fee at the time the application is lodged and the remaining 50% of the prescribed fee within a reasonable time after the Registrar’s refusal. That follows from the judgment of Lehane J in Kirk v Minister for Immigration & Multicultural Affairs3 and of the Full Federal Court of Australia in Braganza v Minister for Immigration and Multicultural Affairs4 to which I referred in my earlier reasons.
5.In the circumstances before me, although the applicant tendered 50% of the prescribed fee, on 16 March 2016 the Registrar refused to waive payment of the remaining 50% of the prescribed fee and the applicant was given until 12 April 2016 to pay the remaining 50% of the prescribed fee.5 The Registrar then extended the due date for payment of the remaining 50 % of the prescribed fee to 17 May 2016.6 In my opinion, that was a reasonable time within which the applicant could pay the remaining 50 % of the prescribed fee. Thus, at the time the Tribunal decided it did not have jurisdiction to consider the applicant’s application for review, none of the preconditions for a valid application to the Tribunal had been met. That means the Tribunal was correct to conclude it did not have jurisdiction to consider the applicant’s application for review.
6.It may be that, if the Registrar’s decision not to waive the remaining 50% of the prescribed fee were invalid because it were found to be irrational or unreasonable, that decision may be amenable to judicial review. Whether or not that decision is amenable to judicial review, however, cannot be determined in this proceeding if for no other reason than that the Registrar is not a party to the proceeding, and no claim for relief is made against the Registrar. Given the Registrar is not a party to the proceeding, and no submissions were made about whether, if the Registrar were a party to the proceeding, this Court would have jurisdiction to review the Registrar’s decision for unreasonableness or irrationality, it is not appropriate for me to say anything about whether this Court would have had jurisdiction to review the Registrar’s decision had the applicant sought relief against the Registrar.
7.As I noted in my earlier reasons, the applicant relied on submissions contained in a document titled “Applicant’s Submissions”. In addition to that document, the applicant relies on a document which he handed up in Court at the final hearing of this matter. In that document the applicant responds to the Minister’s supplementary written submissions filed on 21 November 2017. The applicant submits “the Tribunal failed to apply the law properly”. The applicant referred to documents contained in the Court Book in which he explained to the Tribunal his circumstances and submitted that this showed the Tribunal had “enough evidence” about the applicant’s health and financial problems.
8.None of the matters on which the applicant relies demonstrates the Tribunal was incorrect to hold it did not have jurisdiction to entertain the applicant’s application for review. The applicant’s submissions are directed to the Registrar’s decision not to waive the remaining 50% of the prescribed fee. As I have already noted, it is not open to me to consider any claim for relief against the Registrar because the Registrar is not a party to the proceeding, and no claim for relief has been made against the Registrar.
This decision was upheld by Moshinsky J on appeal: Fairy v Minister for Immigration and Border Protection [2018] FCA 729 (when together with the First Fairy Decision, the two decisions will subsequently be referred to as the Fairy decisions).
In contrast, in Atta v Minister for Immigration & Anor and El Gindy v Minister for Immigration & Anor [2019] FCCA 3594 (Atta), Judge Humphreys interpreted an application made for review of the Tribunal’s decision as an application for review of the Registrar’s decision refusing to reduce the application fee by 50%. Although no additional joinder appears to have occurred in that case concerning the Registrar, this does not appear to have been the subject of any objection by the Minister. Judge Humphreys ultimately made orders quashing the fee reduction decision and requiring that the fee reduction application be determined according to law. In relation to the question of jurisdiction, his Honour considered:
14.As discussed above, I am of the view that the Court is required, in this matter, to review the decision of the Registrar not to reduce the fee rather than the decision of the Tribunal to dismiss the application because of the correct fee not being paid. Given the proper concession by Mr Reilly and the decision in Auro, I am satisfied that the Court has jurisdiction to look behind the matter that was originally pleaded and deal with the issue of whether or not the decision of the Registrar not to reduce the fee was reasonable.
His Honour summarised the Tribunal’s reasoning at [16]-[17]:
16.Although not required to, the Registrar provided reasons. It was noted that the applicants declared they were not working and relied upon money from the applicant’s brother of $400 per fortnight to pay expenses, mainly medical costs. An amount of $165 was also listed as support from the applicant’s brother and the husband’s income, Mr Atta. It was noted that the applicants had declared fortnightly expenses in the amount of $295. The Registrar noted that the applicants had not provided evidence for the income, nor had they provided evidence to support a fortnightly household expenses, which I have outlined above, and that the applicants had not provided the complete financial picture of their current financial circumstances.
17.It was indicated while the criteria for the grant of a Medical Treatment Visitor visa does not include a capacity to pay a review fee, the person seeking a Medical Treatment visitor visa are expected to meet costs associated with travel and stay in Australia if a visa were to be granted. It is anticipated that such persons would ordinarily be in circumstances in which payment of the full fee would not cause severe financial hardship…
His Honour then relevantly reasoned:
19.I have to determine whether or not the decision of the Registrar was legally unreasonable. The fact that in general, a person would be capable of paying a fee if they were seeking a medical visa is not, in my view, a matter that can be taken into account in every case. Each case needs to be looked at on its merits and the fact that there may be an anticipation that persons who would ordinarily be able to pay a fee cannot be used as a ground in every matter to refuse to waive a fee…
21.… I have to determine whether or not the decision of the Registrar was legally unreasonable. Based on the information before me, it is clear that evidence was provided of a very modest income with a very low amount of $40 approximately in the bank. There appeared to be an assumption on the part of the Registrar that if the applicants were applying for a medical visa, they should have the capacity to pay the entire fee.
22.It is obvious that the applicants are in receipt of financial assistance from the applicant’s brother and it is not for me to speculate where the $1600-odd came from that enabled them to pay the 50 % of the application fee. I am satisfied that the Registrar took into account a matter that they should not have taken into account, that being a generalisation that persons applying for a medical visa would ordinarily be in circumstances in which the payment for the full fee would not cause severe financial hardship.
24.I have taken into account the evidence provided in relation to their income and disbursements and I am satisfied that the decision was subject to legal unreasonableness. In the circumstances, I propose to allow the application and remit the matter back to the Tribunal for further consideration.
Noting the different approaches that had been taken to the issue, and the question of whether additional joinder of a party was necessary, I formed the view that the applicant would face considerable difficulties in presenting his case without legal assistance. After considering the applicant’s submissions regarding his lack of means, I made orders that the matter be referred for legal assistance pursuant to r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Ms Graus accepted the referral. I wish to express my sincere appreciation for the assistance that Ms Graus has provided to the applicant and to the Court in this matter.
The applicant subsequently filed an amended application seeking an extension of time in which to challenge the Tribunal Officer’s decision. The extension of time was not opposed by the Minister and was granted at the hearing of this matter on 5 July 2024.
The Minister accepted that this Court has jurisdiction to review the Tribunal Officer’s decision. The Minister submitted that it was appropriate, however, that the Commonwealth of Australia (Commonwealth) be joined as a party to the proceedings, in order to address the issue in the Fairy decisions. This was by reference to s 24W of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that:
Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.
The Commonwealth was accordingly joined as a respondent at the hearing on 5 July 2024, in circumstances where the Minister’s Counsel obtained instructions to appear for the Commonwealth in the proceedings. I am grateful for the pragmatic and helpful assistance that was provided by the Minister’s Counsel in this regard, which has assisted the Court’s ability to determine the proceedings without further delay.
The amended application contended that the Tribunal Officer’s decision was legally unreasonable. In submissions, the applicant contended that this was because the Tribunal Officer:
(a)took into account an irrelevant fact or assumption (namely, the generalisation that persons applying for a medical treatment visa would not ordinarily be in circumstances in which the payment of the full fee would cause severe financial hardship);
(b)had the effect of imposing a further, ultra vires criterion to the applicant’s entitlement to a medical treatment visa (namely, the financial ability to pay the full application fee); and
(c)found that the applicant had not provided a “complete picture” of his financial position, despite the information and documentation provided.
In relation to the Tribunal Officer’s consideration that persons applying for a medical treatment visa would not ordinarily be caused financial hardship, the applicant relied upon the decision in Atta. The applicant further contended that this basis for the decision was inexplicable within the context of evidence that was “diametrically opposed to that assumption”. The applicant submitted that the Tribunal Officer therefore failed to engage with the evidence that was before the Tribunal.
The Minster submitted that it was open to the Tribunal Officer to refer to a general anticipation about a medical treatment visa applicant’s capabilities. The Minister submitted that the Tribunal Officer did not go on to decide the application by generalities, but rather examined the material before him and determined that he did not have a complete picture of the applicant’s current financial circumstances. The Minister submitted that this reasoning was open on the material and provided an intelligible justification for the decision.
The Minister observed that the relevant power in reg 4.13(4) was a discretionary power that was only enlivened upon satisfaction of the Registrar (or delegate). The Minister observed that there are limits as to the kinds of jurisdictional error that might arise within such a context. The Minister relied upon what was said by Derrington J in Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46 at [134]:
134.Where the operation of a provision or the exercise of a power is conditioned upon the formation of a state of mind by the Executive as to the existence of a matter, that state of mind cannot be reviewed merely because a court believes it to be wrong or may not have reached the same conclusion. The grounds on which the state of mind might be invalidated are limited. Indeed, it is a well-established drafting technique so as to limit curial review to incorporate a subjective element as a condition to the operation of a provision or to the enlivening of a power (usually, in the form of a state of mind to be held by the repository of the power): Bankstown Municipal Council v Fripp (1919) 26 CLR 385, 403 and acknowledged by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 651 [130] (Eshetu) and repeated by Gummow J with McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1175 [54] (S20/2002); see also the comments of Barwick CJ in Kolotex, 541. On review, the courts’ role is not to ascertain whether the matter in respect of which the identified person is required to form an opinion actually existed, but rather whether the person had formed the required state of mind as to its existence.
I accept the Minister’s submission that the Tribunal Officer did not purport to elevate an ability to pay the fee to a visa criterion (whether directly or otherwise). As the Minister submitted, the Tribunal Officer explicitly acknowledged that capacity to pay the fee was not a visa criterion.
I also accept the Minister’s submission that Atta does not necessarily require a finding that reference to the general expectation referenced by the Tribunal Officer will result in jurisdictional error in every case. Cases involving allegations of unreasonableness and illogicality must be considered according to their particular circumstances rather than simply by analogy: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [42] per Allsop CJ, Robertson J and Mortimer J (as her Honour then was).
There may be cases, for example, where the application in question contained some representation of means, particularly when considered in relation to cl 602.216 in Schedule 2 to the Regulations, which required (subject to limited exception):
(1) The applicant has:
(a) adequate means to support himself or herself; or
(b)access to adequate means to support himself or herself; during the period of the applicant’s intended stay in Australia.
I accept the applicant’s submission, however, that the expectation relied upon in this case was potentially problematic. In the present case there was nothing in the material before the Tribunal that supported such an expectation of means. As was submitted by the applicant, all of the material before the Tribunal was “diametrically opposed” to such an expectation. This included the visa application in question, which contained no representation that the applicant would be able to meet cl 602.216 at the time that it was made. To the contrary, in his application for the visa, the applicant stated that he had no savings and would need permission to work in order to support himself and meet his medical costs.
The application for fee reduction painted a similarly bleak picture of the applicant’s financial means. It indicated that, at that time, the applicant had no income and possessed only the amount of $520.69 in a bank account. The 50% fee that the applicant had managed to provide was said to have been provided by a friend. A bank statement was provided to corroborate what was said to be the balance of the applicant’s bank account. All of the material before the Tribunal, therefore, belied any assumption that the applicant would be expected to be able to meet the fee by reference to his visa application.
There are other potential problems with the expectation referenced by the Tribunal Officer. Clause 602.216 required only access to adequate means of support at the time of decision. It did not require that the applicant themselves possess such funds at an earlier stage sufficient to fund an application before the Tribunal. Whether or not an applicant was able to meet this expense, without relevant hardship, fell to be determined on the circumstances of the particular case. This was an assessment required in all fee reduction applications, with a fee reduction being an exception to the general requirement that applicants pay the full application fee. It is therefore difficult to understand the expectation referenced by the Tribunal in the present case, having regard to the visa application that had been made.
However, I accept the Minister’s submission that this general expectation, even if illogical, was not, realistically, of consequence to the Tribunal Officer’s determination of the fee reduction application in the present case. Not every lapse of logic will give rise to jurisdictional error. In some cases, a lack of logic “may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34] per Allsop CJ, Besanko and O'Callaghan JJ.
As noted above, the general position in any event was that applicants were expected to pay the full review fee, absent satisfaction on the part of the Registrar or a delegate that this would cause severe financial hardship. It was for the applicant to satisfy the Tribunal Officer that this would occur. That question was required to be answered by reference to the material before the Tribunal Officer regarding the applicant’s individual circumstances, regardless of any general position or expectation.
It follows that I accept the applicant’s submission that the general expectation relied upon by the Tribunal Officer was incapable of providing a sufficient logical or intelligible justification for the Tribunal Officer’s decision. However, I accept the Minister’s submission that the Tribunal Officer did not purport to determine the matter by generalities. The Tribunal Officer at least purported to determine the application by reference to the applicant’s particular circumstances. The question, then, is whether the Tribunal Officer relevantly engaged with the material before him regarding those circumstances and whether the Tribunal Officer’s reasoning in this regard was logically available.
As set out above, the Tribunal Officer summarised the information that the applicant had provided in the fee reduction application form as follows:
You have declared that you are currently not employed, you have 2 dependants and you are supported by [a person] for food and accommodation. You have not provided details of any fortnightly expenses and you have further declared that a friend provided the money order to pay the reduced fee to the Tribunal.
It may be accepted that simply noting material before a decision maker will not necessarily demonstrate requisite consideration of it. However, the Tribunal did engage, at least to some extent, with this material by subsequently describing it as “limited” and concluding that the applicant had “not provided a complete picture of [his] current financial circumstances”.
The applicant provided a bank statement with his fee reduction application form, which was not directly referenced in the Tribunal Officer’s decision. That statement supported the balance of funds claimed by the applicant in his bank account ($520.69). It also showed some limited transactions, including two unexplained deposits and some withdrawals that appear to have related to tolls.
I am not persuaded that the bank statement was overlooked. What the Tribunal Officer assessed as being the “limited amount of evidence provided” was said to have “include[d]”, and not been limited to, the information contained in the fee reduction request form. Further, the Tribunal Officer’s concerns appear not to have centred around a lack of corroboration, but rather what he regarded as an incomplete “picture” that had been provided regarding the applicant’s personal financial circumstances.
The applicant submitted that this was unreasonable in circumstances where he had declared that he had no other form of income, support or bank account beyond that which had been disclosed. The applicant observed that the reasons did not indicate what further information might have been provided. The only deficiency indicated by the reasons concerned the reference to the applicant having “not provided details of any fortnightly expenses”. It was suggested that this was a misunderstanding of the applicant’s answers on his fee reduction application form. The applicant had not refused to provide any details regarding his expenses, but had answered in relation to various categories of expense identified on the form (such as “Food”, “Utilities” and “Car or transport”) with the word “nil”. In result, he had claimed that his usual fortnightly expenses in those categories were “$0”.
I accept that the Tribunal Officer’s reasons might have been clearer regarding the limitations or deficiencies that he had identified. Had the Tribunal Officer simply relied upon an assessment that the applicant had provided no information regarding his expenses, I may have concluded that this was unreasonable or illogical.
Although this construction is a possible one, I am not ultimately convinced it is the most likely. As the Minister submitted, it is possible to construe this part of the form consistently with the Tribunal Officer’s characterisation of the applicant having “not provided details of any fortnightly expenses”. This is because the applicant had not contended that he had any. On a fair reading of the Tribunal Officer’s decision, it appears that the Tribunal Officer more generally considered that limited evidence had been provided in support of the fee reduction application and that he did not have a “complete picture” of the applicant’s financial circumstances. The Minister submitted that this provided a sufficient intelligible and logical foundation for the Tribunal Officer’s decision.
It would have been preferable for the Tribunal Officer to have been clearer in his reasons as to why he had assessed the applicant’s evidence in the manner that he did. Although the Tribunal Officer was not under an obligation to provide reasons for the decision, where he nonetheless elected to provide reasons, some further detail may have assisted the applicant. This is in circumstances where another decision maker may well have considered that they had a complete picture of the applicant’s circumstances. The applicant’s case was, essentially, that he had no fortnightly income or expenses, with his food and accommodation being provided by a friend.
However, it may be accepted that the information that the applicant provided in this regard was (at least on one view) expressed fairly generally. In relation to a question on the form as to whether he had any other expenses, debts or financial commitments, the applicant had stated that his “friend provided money order to pay the reduced fee to the Tribunal”. No further details were provided regarding this arrangement (including whether this was a debt, loan or other type of arrangement, on any terms). In relation to a question asking for details of any financial support provided to him (including “type and amount”), the applicant had identified a person who had been supporting him since 2013 and continued to support him “with food + accommodation”). Again, no further details were provided.
On balance, I accept the Minister’s submission that it was open to the Tribunal Officer to have characterised this evidence as “limited” and to have not been satisfied that he had a “complete picture” of the applicant’s current financial circumstances in result. Although another decision maker may have reached a different conclusion, this is insufficient to demonstrate jurisdictional error. Where probative evidence can give rise to different processes of reasoning, or if logical, rational or reasonable minds may differ in respect of the conclusions to be drawn from evidence, then a reviewing court is unable to find that a decision is illogical, irrational or unreasonable “simply because one conclusion has been preferred to another possible conclusion”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
The ground relied upon by the applicant is therefore unable to succeed.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 16 July 2024
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