Razia v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 565
•26 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Razia v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 565
File number: MLG 1638 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 26 June 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a temporary graduate visa – whether the Tribunal made errors in determining when the applicant completed her relevant course of study – whether the Tribunal failed to correctly exercise s 359(2) of the Migration Act 1958 (Cth) – whether the Tribunal erred by failing to exercise its discretion in s 363(1)(b) of the Migration Act to adjourn the review – allegations of dishonest behaviour by migration agent – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 359, 359B, 359C, 360, 363, 363A, 379A, 379C, 379G, 476, 477
Migration Regulations 1994 (Cth) reg 1.15F, 4.17, Sch 2, cl 485.231
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 8 March 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Cunynghame for the first respondent Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1638 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLESSY RAZIA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
26 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a non-citizen who applied for a temporary graduate visa while in Australia. A delegate of the Minister refused to grant the applicant the visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 4 May 2018. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant asserts that the Tribunal made a jurisdictional error by misapplying the relevant legislation, by not exercising s 359(2) of the Migration Act correctly and by failing to exercise its discretion in s 363(1)(b) of the Migration Act to adjourn the review.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 21 October 2016 the applicant applied for a Temporary Graduate (class VC) (subclass 485) visa in the Post-Study Work stream (visa).
On 6 December 2016 a delegate of the Minister refused to grant the applicant the visa, finding that the applicant did not meet the requirements of cl 485.231 in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 17 December 2016 the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 19 April 2018 the Tribunal sent to the applicant an invitation pursuant to s 359(2) of the Migration Act to provide information showing that she held a qualification of the type specified under the relevant parts of the legislation and that the qualification was completed in the period six months immediately before she made her visa application on 21 October 2016. The invitation required that the information be provided by 3 May 2018 and put the applicant on notice that if she did not provide the information by this date, or within an extended timeframe if an extension of time was granted, she would lose any entitlement she might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. The applicant did not provide any information in response to the invitation.
On 24 April 2018 the Tribunal sent to the applicant an invitation to attend a hearing on 10 May 2018. However, on 8 May 2018 the Tribunal notified the applicant that the hearing was cancelled as the applicant had not responded to the invitation to provide information by 3 May 2018 and she had therefore lost her right to a hearing.
On 4 May 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal referred to the invitation issued to the applicant under s 359(2) of the Migration Act on 19 April 2018 to provide information showing that she held a qualification of the type specified in cl 485.231 in Sch 2 to the Regulations. The Tribunal considered that in circumstances where it did not receive a response to, or the information requested in, the invitation by the date specified, the applicant lost any entitlement to appear before the Tribunal to give evidence and present arguments in relation to the issues under review as a result of the operation of s 360(3) of the Migration Act.
The Tribunal considered whether to exercise its discretion in s 363(1)(b) of the Migration Act to adjourn the review to allow the applicant additional time. The Tribunal was satisfied that the applicant had been given a reasonable opportunity and ample time to provide information relating to an essential requirement for the grant of the visa and had not done so. In these circumstances, the Tribunal declined to exercise its discretion in s 363(1)(b) of the Migration Act in the applicant’s favour to adjourn the review.
The Tribunal then proceeded to consider whether the applicant meet the criteria in cl 485.231 in Sch 2 to the Regulations, taking into account legislative instrument IMMI 13/031. After setting out the relevant legislation, the Tribunal identified that there were three issues for its determination, namely:
(a)whether the applicant held a qualification or qualifications of a kind specified;
(b)if so, whether the qualification was conferred or awarded by a specified institution; and
(c)if so, whether the applicant met the Australian study requirement.
The Tribunal noted that the applicant provided evidence that she had completed:
(a)an Advanced Diploma of Leadership and Management obtained from the Australian College of Technology and Business Pty Ltd, which stated she completed the course on 5 October 2016; and
(b)a Master of Biotechnology from the Queensland University of Technology completed on 28 January 2014.
The Tribunal was not satisfied that the Advanced Diploma of Leadership and Management met the requirement in cl 485.231(1) because an Advanced Diploma was not an eligible qualification as it was not one of the qualifications listed in IMMI 13/031. The Tribunal was satisfied that the Master of Biotechnology met the requirement in cl 485.231(1) as a Masters by Coursework Degree was a specified qualification.
The Tribunal was also satisfied that Queensland University of Technology, the institution where the applicant completed the Master of Biotechnology, was registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) and offered courses at degree level and above and therefore, for the purposes of the Master of Biotechnology qualification, cl 485.231(2) was met.
The Tribunal considered the language used in the Regulations and the purpose of cl 485.231(3) and formed the view that the qualification in relation to which the applicant was required to meet the Australian study requirement had to be the qualification that met cll 485.231(1) and (2). The Tribunal was not satisfied that the Advanced Diploma of Leadership and Management could be relied upon by the applicant to meet the requirement in cl 485.231(3). The Tribunal found that the applicant completed the Master of Biotechnology on 28 January 2014, which was not in the period of six months ending immediately before the day on which the visa application was made, being 21 October 2016. The Tribunal was therefore not satisfied that the applicant met the requirement in cl 485.231(3).
The Tribunal found that the applicant did not meet the requirements of cl 485.231 and affirmed the delegate’s decision not to grant the applicant the visa.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 8 June 2018 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises the following grounds in her application:
1.cl.485.231 of Schedule 2 to the Migration Regulations 1994 – Meaning of “completed within the required time frame” was not applied correctly. – And
2.359(2) of The Migration Act 1958 was not exercised correctly AND
3. The Tribunal failed to exercise cl 363(1)(b) of the Migration Act 1958
4.Regulation 1.15F(2) of the Migration Regulations 1994 – Definition of the term “completed“ was not applied correctly
In her application as filed, the only relief sought by the applicant was an order that the Tribunal decision be quashed. This is insufficient to invoke the Court’s jurisdiction in this matter. Pursuant to s 476(1) of the Migration Act the Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. That paragraph applies where a person seeks a writ of mandamus, a writ of prohibition or an injunction against an officer of the Commonwealth. At the hearing, I allowed the applicant to orally amend her application to seek a writ of mandamus and, with that amendment, I am satisfied that the Court now has jurisdiction to determine the application.
Pursuant to an Order made by a Registrar of the Court on 4 September 2019, the applicant was required to file and serve any amended application, any affidavit, any supplementary court book and written submissions 28 days prior to the hearing. The applicant did not file any documents in accordance with this Order. The Minister filed and served written submissions in accordance with the Order.
The evidence before the Court comprises the court book filed on behalf of the Minister on 21 September 2019, an affidavit of the applicant filed on 8 June 2018 repeating the grounds of application and annexing a copy of the Tribunal decision, and an affidavit of Amron Rath filed on behalf of the Minister on 22 February 2024 confirming that the applicant was served with a copy of the court book and the Minister’s submissions.
CONSIDERATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if she establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Grounds 1 and 4
It is convenient to consider grounds 1 and 4 together as they both relate to whether the Tribunal made errors in determining when the applicant completed her relevant course of study.
By ground 1, the applicant asserts that the Tribunal did not correctly apply cl 485.231 in Sch 2 to the Regulations, because it did not correctly apply the term ‘completed within the required time’.
Clause 485.231 provides:
(1)The applicant holds a qualification or qualifications of a kind specified by the Minister in an instrument in writing for this subclause.
(2)Each qualification was conferred or awarded by an educational institution specified by the Minister in an instrument in writing for this subclause.
(3)The applicant’s study for the qualification or qualifications satisfied the Australian study requirement in the period of 6 months ending immediately before the day the application was made.
Although the phrase ‘completed within the required time frame’ does not appear in cl 485.231, I understand the ground to be referring to paragraph 485.231(3), which refers to satisfaction of the ‘Australian study requirement’, which is explained in reg 1.15F of the Regulations in the following way:
(1)A person satisfies the Australian study requirement if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a)that are registered courses; and
(b)that were completed in a total of at least 16 calendar months; and
(c)that were completed as a result of a total of at least 2 academic years study; and
(d)for which all instruction was conducted in English; and
(e)that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
Note: Academic year is defined in regulation 1.03.
(2) In this regulation:
completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award.
Note:The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred.
degree has the meaning given in subregulation 2.26AC(6).
diploma has the meaning given in subregulation 2.26AC(6).
trade qualification has the meaning given in subregulation 2.26AC(6).
The applicant asserts by ground 4 that the Tribunal misapplied reg 1.15F(2).
The applicant has not provided any meaningful particulars to explain the reasons she believes the Tribunal misapplied these provisions. After the need to provide particulars was explained to the applicant at the hearing and the matter was stood down to enable her to consider what she wished to say to the Court, she offered no further explanation of ground 1 and in relation to ground 4 said:
So my understanding of the requirement, to be eligible for the 485, is two years of study, which I have completed 1.5 years of masters, which was nine six weeks, I believe, and followed by a diploma, which again, my understanding was, it would make me eligible for the 485 visa at the time.
It appears from this that the applicant is simply asserting disagreement with the Tribunal decision and stating her belief that she met the requirements for the grant of the visa. This is not, of itself, sufficient to establish jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
In responding to grounds 1 and 4 as raised in the application, the Minister submitted that the Tribunal plainly understood that the applicant could rely on courses that satisfied the Australian study requirement in reg 1.15F in the six months immediately before the visa application was made and did not misconstrue this requirement. The Minister submitted that the Tribunal was, however, considering cl 485.231 which required the applicant’s qualification to be one specified in IMMI 13/013 which did not allow qualifications at the diploma level. The Minister submitted that reg 1.15F and cl 485.231 must be read together and harmoniously and the Tribunal’s interpretation of these two provisions at [27] of its reasons was correct. The Minister submitted that the Tribunal was correct to find that the Advanced Diploma of Leadership and Management could not be relied on to meet cl 485.231(3) and that the applicant’s Masters course was not completed in the six months immediately prior to the visa application and therefore could not meet the Australian study requirement.
The definition in reg 1.15F of when a person meets the Australian study requirement applies to a number of provisions in the Regulations. The Tribunal in its reasons carefully considered the wording of cl 485.213(3) and the application of the definition in reg 1.15F to the requirement in cl 485.213(3). It should be recalled in considering the Tribunal’s reasons that although reg 1.15F refers to diplomas as well as degrees, cl 485.231 limits the relevant qualifications to those specified by the Minister and provided by a specified educational institution. The Minister specified certain qualifications for the purposes of cl 485.231(1) in legislative instrument IMMI 13/013. The specified qualifications are Bachelor Degree, Bachelor (Honours) Degree, Masters by Coursework Degree, Masters by Research Degree, Masters (Extended) Degree and Doctoral Degree.
The Tribunal said at [27] of its reasons:
Clause 485.231(3) refers to the applicant’s study for “the” qualification(s) meeting the Australian study requirement. The Tribunal considers the use of the word “the” before “qualification” is intended to stipulate that the qualification(s) to be considered for cl.485.231(3) is “the qualification(s)” that meets cll.485.231(1) and (2). The Tribunal is of the view that if any qualification could qualify under the Australian study requirement, such as a Diploma, then cl.485.231(3) would refer to “a” or “any” qualification(s). Also the Tribunal considers that if any qualification under the Australian study requirement could meet cl.485.231(3), but not the other subclauses, then this would undermine the purpose of cll.485.231(1) and (2) as to the appropriate standards of qualification to be relied on to meet the Post Study Work stream. In essence, the Tribunal considers that the purpose of cl.485.231(3) includes to ensure that the specified qualification(s) has currency (that is, was completed in the six month period prior to the visa application). Accordingly the Tribunal is not satisfied that the Advanced Diploma of Leadership and Management can be relied upon by the applicant to meet the requirement in cl.485.231(3).
The applicant has not established that the Tribunal made any error in the application of cl 485.231 in Sch 2 to the Regulations or reg 1.15F of the Regulations in determining when she completed the relevant courses. There is no real controversy in this matter about the date on which the applicant’s respective courses were completed. The evidence before the Tribunal suggested that the applicant completed her Master of Biotechnology on 28 January 2014, well before the period of six months ending immediately prior to when the applicant applied for the visa on 21 October 2016, and that the applicant completed her Advanced Diploma of Leadership and Management on 5 October 2016, which was within the relevant six-month period. The substantive issue in the present case is whether the applicant could rely on the Advanced Diploma of Leadership and Management to meet the requirement of cl 485.231(3).
This issue is resolved upon a proper construction of cl 485.231(3). To this end, I cannot discern any error in the Tribunal’s construction of cl 485.231(3). The Tribunal’s construction turned on the article ‘the’ immediately prior to the word ‘qualification’. The Tribunal considered that ‘the qualification’ referred to in cl 485.231(3), in relation to which the applicant’s study must meet the Australian study requirement, must be the qualification that met the requirements of cll 485.231(1) and (2). I agree that this is the correct interpretation of cl 485.231(3). The use of the article ‘the’ in cl 485.231(3) can be contrasted with the use of the article ‘a’ in cl 485.231(1). Clause 485.231(1) requires that the applicant hold ‘a qualification or qualifications’ of a kind specified by the Minister. The qualification relied on by an applicant to meet this subclause can be any qualification that meets the description ‘of a kind specified by the Minister in an instrument in writing for this subclause’. Clause 485.231(2) then requires that ‘each’ qualification must be conferred or awarded by an institution specified by the Minister. This can only logically be read as a requirement that the qualification relied on by the applicant for the purposes of cl 485.231(1) must be awarded or confirmed by a specified institution. The reference then in cl 485.231(3) to ‘the qualification or qualifications’ must, as the Tribunal found, be a reference to the qualification or qualifications that are relied on for the purposes of cll 485.231(1) and (2) and which meet the requirements of those subclauses. I agree with the Tribunal’s assessment that, had it been intended that, for the purposes of cl 485.231(3), an applicant could meet the Australian study requirement by relying on some other qualification that did not meet the requirements of cll 485.231(1) and (2), the word ‘qualification’ would not have been qualified by the article ‘the’ and the drafters of the legislation could have instead opted for the article ‘a’ or ‘any’.
Having found that the Tribunal’s construction of cl 485.231(3) in Sch 2 to the Regulations is correct, it follows that I am also satisfied that the Tribunal was correct to find that the applicant could not rely on her Advanced Diploma in Leadership and Management to meet the requirements of cl 485.231(3), as this qualification did not meet the requirements of cll 485.231(1) and (2).
The applicant has not disputed the Tribunal’s finding that her Master of Biotechnology was completed on 28 January 2014. It was open to the Tribunal to find that the applicant did not meet the requirements of cl 485.231(3) given that this course was completed well before the six-month period ending immediately before the day on which she applied for the visa.
It was therefore unnecessary for the Tribunal to make detailed findings against the criteria in reg 1.15F of the Regulations because the applicant had not completed a relevant qualification within the relevant period. I am unable to find that the Tribunal misapplied reg 1.15F.
Grounds 1 and 4 do not establish jurisdictional error.
Ground 2
By ground 2, the applicant asserts that the Tribunal did not correctly exercise s 359(2) of the Migration Act. The applicant has not provided any particulars or details to explain why she believes the Tribunal did not correctly exercise s 359(2) and, despite being invited to provide particulars at the hearing, the applicant chose not to make any submissions about this ground.
Section 359 of the Migration Act provides:
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b)if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
The invitation that the Tribunal sent to the applicant on 19 April 2018 to provide information was an invitation under s 359(2) of the Migration Act.
As can be seen from s 359(3)(a), the invitation was required to be given to the applicant via one of the methods in s 379A of the Migration Act. The invitation was given to the applicant by email sent to the email address of her migration agent recorded in her application to the Tribunal. This was the last email address provided by the applicant in connection with the review and I am satisfied that the invitation under s 359(2) of the Migration Act was given to the applicant in accordance with the method in s 379A(5). I further note that by sending the invitation to the email of the applicant’s migration agent, who was the applicant’s authorised recipient for the purposes of the review, the Tribunal complied with its obligation under s 379G(1) of the Migration Act. This subsection requires that, where an applicant has provided the name and address of another person authorised to receive documents in connection with the review, the Tribunal must give the authorised recipient, instead of the applicant, any document that the Tribunal would otherwise have given to the applicant. By giving the invitation to the applicant’s authorised recipient, the Tribunal is taken to have given the document to the applicant: s 379G(2) of the Migration Act.
In her oral submissions, as discussed below, the applicant made various complaints about her migration agent, and she submitted that she was not aware of the invitation to provide information. However, irrespective of whether the applicant was in fact aware of the invitation, she is deemed to have received it. Section 379C(5) of the Migration Act provides that where a person has been given a document by email, the person is taken to have received the document at the end of the day on which the document is transmitted. This provision, when read with s 379G(2) of the Migration Act, means that the applicant is taken to have received the notice of the invitation to provide information at the end of 19 April 2018, whether or not she in fact became aware of it on that date. The consequences of failing to respond to the invitation, which are discussed below, therefore flow even if the applicant was not aware of the invitation.
As noted by the Minister in his written submissions, the Tribunal must ensure that the invitation to provide information meets the requirements set out in s 359B of the Migration Act. I am satisfied that the invitation complied with these requirements. The invitation advised the applicant how she could provide the information to the Tribunal as required by s 359B(1). The invitation clearly put the applicant on notice that she was required to provide the information by 3 May 2018. This was 14 days from the day she was deemed to have received the notice, and complies with the period prescribed by reg 4.17(4) of the Regulations, as required by s 359B(2).
As identified by the Tribunal in its reasons, and as explained by the Minister in his written submissions, the consequence of the applicant failing to provide information in response to the invitation within the specified time was that the applicant lost her entitlement to attend a hearing. This is because of the combined effect of ss 359C(1), 360 and 363A of the Migration Act. Section 359C(1) provides that if a person is invited in writing to give information under s 359 of the Migration Act and does not give the information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Section 360 of the Migration Act makes provisions regarding when the Tribunal is required to invite an applicant to appear before it to give evidence and present arguments. Subsection 360(2)(c) relevantly provides that the Tribunal is not required to invite an applicant to appear before the Tribunal to give evidence and present arguments if s 359C(1) applies to the applicant and s 360(3) provides that if any of the paragraphs of s 360(2) applies to an applicant, the applicant is not entitled to appear before the Tribunal. The effect of s 363A is that if a provision in Part 5 of the Migration Act states that a person is not entitled to do something, the Tribunal does not have power to permit the person to do that thing. The Tribunal therefore had no power to invite the applicant to appear before it to give evidence and present arguments. The Tribunal was therefore correct to cancel the applicant’s hearing.
No jurisdictional error is evident from the Tribunal issuing the invitation under s 359 of the Migration Act, or from the consequences that the Tribunal identified of the applicant’s failure to provide information in accordance with the invitation. Ground 2 is not established.
Ground 3
By ground 3, the applicant asserts that the Tribunal erred by failing to exercise s 363(1)(b) of the Migration Act. This subsection gives the Tribunal the power to adjourn the review from time to time. The applicant has not explained, in her ground or in her submissions, the manner in which she believes the Tribunal erred in not adjourning the review.
The Minister in his written submissions has treated the ground as an assertion that the Tribunal acted unreasonably in failing to exercise its discretion to adjourn the review. I agree that this is an appropriate way to address this ground.
The Tribunal’s power in s 363(1)(b) of the Migration Act is a discretionary power and must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63]; Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30 at [80], [89].
The Tribunal provided reasons in its decision for deciding not to adjourn the review. The Tribunal noted that the applicant had been aware of the basis on which the delegate refused to grant her a visa for approximately 18 months and had been invited to provide information to show she met the requirements of cl 485.231 in Sch 2 to the Regulations, but she did not provide any such information. The Tribunal took into account that the applicant was represented by a migration agent who would be aware of the consequences of not responding to an invitation issued by the Tribunal under s 359(2) of the Migration Act. The Tribunal was satisfied that the applicant had been given a reasonable opportunity and ample time to provide information to the essential requirements for the grant of the visa and had not done so.
I accept the Minister’s submission that the Tribunal’s reasons evidence a clear and intelligible reasoning process for refusing to adjourn the review and that the decision not to adjourn the review was within the area of the Tribunal’s decisional freedom. There is nothing unreasonable in the Tribunal’s failure to adjourn the review to give the applicant a further opportunity to provide information.
Ground 3 is not established.
Further issues raised by the applicant at the hearing
The applicant in her oral submissions submitted that she had engaged a registered migration agent to assist with her application to the Tribunal and had relied on their professional advice. The applicant submitted that the migration agent failed to inform her of the Tribunal hearing or the invitation to provide further information, and she later found out that the migration agent had been disbarred.
Counsel for the Minister interpreted this submission as an assertion of fraud by the migration agent. When I asked the applicant whether she was asserting an allegation of fraud, it was not entirely clear whether the applicant was alleging fraud by the migration agent, but she stated that the migration agent was acting dishonestly. The applicant emphasised that she had been relying on advice and felt that doing a Masters followed by a Diploma would allow her to apply for a 485 visa and any errors in the timeline were errors of third parties.
In circumstances where the applicant did not necessarily appear to be raising an allegation of fraud, but where I could not be certain that she was not raising such an allegation, out of an abundance of caution, I gave the applicant an opportunity to file any amended application, any affidavit evidence and written submissions in relation to any allegation of fraud on the part of her migration agent and made an order to that effect. I made clear to the applicant that if she did not file any documents in accordance with the order, the Court would proceed on the basis that the applicant is not raising any further grounds.
The applicant did not file any documents in accordance with the order I made at the hearing. I infer from this that the applicant is not raising any allegation of fraud on the part of her migration agent. In any event, the submissions made by the applicant are insufficient to establish fraud. The applicant has not provided any evidence to show that her migration agent was barred from being registered, or that his or her registration was otherwise suspended or cancelled by the Migration Agents Registration Authority, or when this took place. There is no evidence whatsoever that the migration agent acted dishonestly in this particular matter. Bad or negligent advice on the part of a migration agent or other representative does not amount to fraud on the Tribunal: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53]. At its highest, the applicant’s submission is that, in relying on her migration agent’s advice, she applied for the visa believing she would meet the requirements. There is no suggestion that the migration agent acted contrary to her instructions in making the application. There is therefore no substantive allegation of fraud in the visa application process. The applicant’s mere assertion that her migration agent did not inform her of the Tribunal’s invitation does not amount to evidence that her migration agent did not inform her of the invitation to provide information and there is no evidence before the Court from which I could draw any inference of dishonesty even if I were to accept that the applicant was not told of the invitation by her migration agent.
The matters raised in the applicant’s oral submissions do not establish any jurisdictional error in the Tribunal decision.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error and the application for judicial review must therefore be dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 26 June 2024
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