Rokovuki v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 282
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rokovuki v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 282
File number: SYG 870 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 28 February 2025 Catchwords: MIGRATION – Temporary Work visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider a vital integer of the applicants’ case – whether the Tribunal failed to consider the first applicant’s personal circumstances – whether the Tribunal failed to consider information before it – whether the conduct of the applicants’ agent or representative amounted to a “fraud” on the Tribunal – no jurisdictional error – Ministerial Intervention – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Item 10 in Schedule 16 and Item 25
Migration Act 1958 (Cth), ss 140GB, 351, 359A, 375A & 476 and Part 5
Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth), Division 1 of Part 5 in Schedule 1 & Item 6002(d)(ii) of Part 60 in Schedule 1
Migration Regulations 1994 (Cth), reg 2.75A, Part 401 in Schedule 2, cll 401.212, 401.214 & 401.311 in Schedule 2 and Condition 8107 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670
Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 4 November 2024 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Mr M Sheedy Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 870 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EMORI ROKOVUKI
First Applicant
TAINA YABAKI KALOUTOLU
Second Applicant
MEREDANI ROKOVUKI KALOUTOLU (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 FEBRUARY 2025
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 KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 14 March 2019 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
At the time the applicants made an application to this Court, the Tribunal was listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, a proceeding will continue in accordance with the new law. By continuing with a proceeding, anything that the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court made an order (at the hearing of this matter) substituting the ART as the second respondent in this proceeding.
The applicants’ migration history
The applicants in this matter are citizens of Fiji. The first and second applicants are husband and wife respectively and the third, fourth, fifth and sixth applicants are their children (Court Book (“CB”) 3-7 & 25-60).
The first applicant is an Ordained Minister and claims that he travelled between Fiji and Australia from September 2012 to September 2014 to help set up two new churches (CB 141).
On 13 August 2014, the first applicant was granted an initial Temporary Work (Long Stay Activity) (Class GB) Religious Worker Stream (Subclass 401) visa (the “initial Subclass 401 visa”). The first applicant arrived in Australia in September 2014 as the holder of that initial Subclass 401 visa (which was valid until 1 June 2016) (CB 71, 79 & 122). The second applicant arrived with him (CB 41 & 87).
The third, fourth, fifth and sixth applicants arrived in December 2014 (CB 44-55, 88, 93 & 102).
On 27 May 2016, the first applicant applied for a further Temporary Work (Long Stay Activity) (Class GB) Religious Worker Stream (Subclass 401) visa (the “visa”) (CB 2-18). The first applicant was sponsored for the visa by the Mt Zion Christian Fellowship Centre (the “sponsor”) (CB 2). His wife and four children (the second, third, fourth, fifth and sixth applicants) were included in that visa application as members of the first applicant’s family unit (CB 4-7). The applicants were assisted with their visa application by a registered migration agent (the “first representative”) (CB 65-67).
On 19 November 2016, the Subclass 401 (Temporary Work (Long Stay Activity) visa type ceased to exist by virtue of Division 1 of Part 5 in Schedule 1 of the Migration Amendment (Temporary Activity Visas) Regulation 2016 (Cth) (the “Amending Regulations”).
On 30 November 2016, the nomination application made by the sponsor in respect of the first applicant was approved (the “Nomination Approval Notice”) by the then Department of Immigration and Border Protection (the “Department”) (see annexure CW-1 of the affidavit of Carly Maree Warren (“Ms Warren”) affirmed and filed on 21 October 2024 (the “Warren affidavit”), pp 6-7). The Nomination Approval Notice informed the sponsor that the nomination approval would cease on the earliest of the following (the Warren affidavit, pp 6-7):
•the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor;
•12 months after the day on which the nomination is approved;
•3 months after the day on which the person’s approval as a sponsor ceases;
•if the person’s approval as a sponsor is cancelled under subsection 140M(1) of the Migration Act (1958); the day on which the persons approval as a sponsor is cancelled;
•the day on which the applicant, or the proposed applicant, who is identified in relation to the nominated occupation, program or activity is granted a visa on the basis of the nomination.
That same day (being 30 November 2016), the Department invited the first applicant to comment on information in relation to his visa application (the “Department’s invitation letter”) (CB 121-124). In particular, the Department’s invitation letter stated as follows (CB 122):
Adverse information received
The Department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which suggests that you may not have complied substantially with the conditions of your last substantive visa.
We note that the last substantive visa you held was a Temporary Work (Long Stay Activity) (Class GB) Religious Worker Stream (GB 401) visa which was approved on 13 August 2014 and valid until 01 June 2016.
One of the conditions attached to this visa is condition 8107 WORK LIMITATION which states that the holder must not:
(a)cease to be employed by the employer in relation to which the visa was granted; or
(b)work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(c)engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted.
The department has received some information from a third party which states that you ceased working for IMPACT CHURCH INCORPORATED in late 2015 and commenced working for another organisation whilst holding the above mentioned Religious Worker. Department records indicate that you did not seek approval to commence work for another employer.
On 30 January 2017, the applicants’ first representative provided a response to the Department’s invitation letter. Supporting documents were also provided to the Department by email (CB 132-153). In that response, the first applicant claimed that he had ceased working for Impact Church Incorporated (the “church”) due to a dispute with that church. The first applicant indicated that he sought work with the sponsor and claimed that the sponsor had an issue with its “charity status” which required rectification before the sponsor could submit the new nomination application in respect of the first applicant (CB 137-143).
On 14 February 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 164-177). The delegate found that the first applicant had breached Condition 8107 (as set out in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”)) of his previous substantive visa in that he had ceased working for the church. As a result, the delegate found that the first applicant did not satisfy cl 401.214(a) in Schedule 2 of the Regulations and the second, third, fourth, fifth and sixth applicants could not meet cl 401.311 in Schedule 2 of the Regulations (CB 171-176).
On 2 March 2017, the applicants lodged an application for review of the delegate’s decision with the Tribunal (CB 182-184). In that application, the applicants appointed a new registered migration agent (the “second representative”) (CB 184).
On 30 November 2017, the sponsor’s nomination in respect of the first applicant ceased (see Item 1 in reg 2.75A(1) of the Regulations and reg 2.75A(2)(b) of the Regulations, as was in force at the date of the visa application, being 27 May 2016).
On 15 February 2019, the Tribunal invited the applicants (through their second representative) to comment on or respond to information pursuant to s 359A of the Act (CB 191-195). Relevantly, that information related to the existence of a certificate issued pursuant to s 375A of the Act which covered information relating to the first applicant’s change of employer whilst he held the initial Subclass 401 visa (CB 194).
That same day (15 February 2019), the Tribunal invited the applicants (again through their second representative) to attend a hearing before it on 13 March 2019 (CB 196-200).
On 2 March 2019, the applicants’ second representative responded to the Tribunal to advise that the applicants “accept[ed] that the s 375A certificate [was] valid” (CB 218).
On 4 March 2019, the applicants’ second representative provided the Tribunal with a completed “Response to hearing invitation” form and a copy of the first applicant’s employment contract with the church (CB 219-225).
On 12 March 2019, the applicants’ second representative notified the Tribunal that he would be “respectfully asking the Tribunal … to consider referring the matter to the Minister under s 351” of the Act if the Tribunal was “minded not to give a successful outcome to the applicant[s]” and made brief submissions in that regard (CB 226).
On 13 March 2019, the first applicant appeared at the Tribunal hearing to give evidence and present arguments in support of his review application (CB 229-232). He was assisted at that hearing by his second representative and an interpreter in the Fijian language (CB 229).
On 14 March 2019, the Tribunal affirmed the delegate’s decision refusing to grant the applicants the visas (CB 240-245).
On 8 April 2019, the applicants applied to this Court for judicial review of the Tribunal’s decision.
THE TRIBUNAL’S DECISION
The application for judicial review is brought pursuant to s 476 of the Act. In order to be successful before this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is six pages long and spans 32 paragraphs. The Court notes that there appears to be an error in the paragraph numbering. Specifically, after paragraph 22 (CB 243), the numbering returns to 13 and the paragraph numbering then continues consecutively from 13 onwards for the remainder of the decision (CB 240-245). Whilst not ideal, the Court will reference the paragraph numbers as they appear in the Tribunal’s decision (albeit with some repetition).
The Tribunal began by explaining that the applicants had applied for the visa on 27 May 2016 and that a delegate of the Minister had refused to grant the applicants the visas on 14 February 2017. The Tribunal confirmed that the applicants had sought review of the delegate’s decision on 2 March 2017 and that, on 15 February 2019, the applicants were invited to attend a Tribunal hearing on 13 March 2019. The Tribunal acknowledged that it had received a document entitled “Employment Contract” which was signed by the first applicant and a representative from the church (but was not dated). The Tribunal confirmed that the first applicant appeared before it (on 13 March 2019) to give evidence and present arguments. The Tribunal further confirmed that the first applicant was assisted by an interpreter in the Fijian and English languages and that the Tribunal received oral evidence from two witnesses. The Tribunal also noted that the applicants were represented in relation to the review by their second representative (at [1]-[8]).
The Tribunal explained that the first applicant’s visa had been refused because he had not satisfied cl 401.214(a) in Schedule 2 of the Regulations which required that he “genuinely intend[ed] to stay temporarily in Australia working in the occupation for which the visa was granted and that he ha[d] complied substantially with the conditions to which the last substantive visa he held was subject”. The Tribunal also identified that the “condition” in issue was Condition 8107 in Schedule 8 of the Regulations (at [10]).
The Tribunal explained that “matters relating to the [first] applicant leaving his employment” with the church and going to work for the sponsor were detailed in the delegate’s decision and in the oral evidence given at the Tribunal hearing. The Tribunal accepted that “the manner in which the applicant was dismissed from his position at [the church] appear[ed] to have been unfair”. The Tribunal explained that the first applicant had changed employers but the new sponsor was not approved and no application was made to nominate the first applicant in a new nomination from the time he left the church until the time the initial Subclass 401 visa had ceased (on 1 June 2016). The Tribunal also accepted that the first applicant went to work for the sponsor and (at the time of the Tribunal decision) continued to work there. The Tribunal also acknowledged that the evidence suggested that the first applicant was a “valuable employee and Pastor” (at [13]-[14]).
The Tribunal outlined that it had told the first applicant (at the start of the hearing before it) that the issue in question was that he did not meet cl 401.214 in Schedule 2 of the Regulations because he had breached Condition 8107 in Schedule 8 of the Regulations. The Tribunal explained that the first applicant had confirmed (at the hearing) that he had finished working for the church (the approved sponsoring organisation related to the first applicant’s initial Subclass 401 visa) in November 2015 and he did not have a new approved nomination before that initial Subclass 401 visa had ceased (approximately seven months later). The Tribunal noted that it was not in dispute that the first applicant left the church while he held the initial Subclass 401 visa and the Tribunal was satisfied that the first applicant did not comply substantially with Condition 8107 in Schedule 8 of the Regulations. The Tribunal also considered the non-compliance to be substantial because the reason for the grant of the visa was for the applicant to work for the church and he only worked there for two thirds of the visa period (without seeking approval for a new nomination or notifying the Department). The Tribunal explained that the evidence given was essentially in support of the request for the Tribunal to refer the matter for Ministerial Intervention (at [16]-[21]).
The Tribunal found that the first applicant did not meet the requirements set out in cl 401.214(a) in Schedule 2 of the Regulations because he did not comply substantially with the conditions to which his last substantive visa was subject. As the visa requirements had not been met, the Tribunal determined that the first applicant could not be granted the visa. The Tribunal also found that the secondary applicants could not meet the criteria or the grant of the visa and affirmed the delegate’s decision refusing to grant the applicants the visas (at [13]-[16] & [22]).
The Tribunal referenced the s 375A certificate and explained that it considered it to be a valid certificate. The Tribunal also noted that the applicants’ second representative had told the Tribunal that they also considered the certificate to be valid. The Tribunal explained that the certificate covered information that the first applicant and the church “parted ways in acrimonious circumstances” and noted that those matters were covered in the delegate’s decision (which was provided to the Tribunal by the applicants). The Tribunal accepted that the first applicant “had not been treated well” by the church and it had “some sympathy” for him in that regard. However, the Tribunal found that the manner in which he was terminated did not change the fact that he still needed to continue to work in the nominated occupation for an approved sponsor. The Tribunal was satisfied that the information that was the subject of the certificate was not relevant. It also recorded that the applicants’ representative had initially requested time to provide written submissions about whether the first applicant was required to have a nomination granted but ultimately withdrew his request in that regard (at [17]-[18]).
The Tribunal acknowledged that the applicants’ representative had made brief written submissions prior to the hearing relating to a request for the Tribunal to refer the matter to the Minister under s 351 of the Act. The Tribunal ultimately decided not to make a specific recommendation of referral on the basis that the first applicant could make a direct request himself to the Department for Ministerial Intervention (at [19]-[21]).
APPLICATION TO THIS COURT
The application for judicial review (filed by the applicants on 8 April 2019) contains three particularised grounds of review, as follows (without alteration):
Ground One
The Administrative Appeals Tribunal (the Tribunal) fell into jurisdictional error when it failed to consider the essential integers of the applicant’s case and applied the relevant regulation quite narrowly in determining the circumstances of the alleged breach by the applicant.
Particulars
1.The crucial question that was before the Delegate and the Tribunal was whether the applicant complied essentially and relevantly with Clause 401.214. The findings of both the Delegate and the Tribunal was that the applicant was in breach of Clause 401.214(a).
2.Clause 401.214 has three essential parts to it. Firstly, the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and
(c)any other relevant factors.
3The applicant submits that the Tribunal failed to take into account other relevant factors that was crucial for it to understand the circumstances of the applicant’s unique circumstances. The applicant was a victim of an approved sponsor and nominator who had changed the applicant’s job description and subjected the applicant to work elsewhere to make ends meet. This was relevant information that the Tribunal failed to take into account and constitutes jurisdictional error.
Ground Two
The Tribunal failed to take into account the applicant’s personal circumstances and in failing to properly carry out its statutory task, made an erroneous decision in affirming the Delegate’s decision. A failure to determine the application for review on the factual basis, renders the decision prone to jurisdictional error especially where the Tribunal did not accord the applicant procedural fairness.
Particulars
1.The Delegate in its decision record acknowledged that there may be reasons why the applicant was not working for the sponsor, a visa applicant is responsible for their own visa conditions and legislative requirements. Not once during the delegate’s decision or the Tribunal’s deliberations was it discussed as to the applicant’s knowledge of his visa conditions and legislative requirements.
2.The Impact Church (the first sponsor and nominator) had securely kept the documents pertaining to the visa applicants’ visa grant and the subsequent visa conditions. The applicant had even acknowledged to the Tribunal that “he did not know” that he had to report to the Department.
3.The Tribunal applied a very narrow construction of Condition 8107 and just determined the matter before it on the basis of the same. The Tribunal failed in its task to determine that the applicant had fallen victim to a scrupulous church organisation and not deliberately or voluntarily breached the condition. In not carrying out its task, the Tribunal fell into jurisdictional error.
Ground Three
The Tribunal did not consider that the applicant had in fact secured an alternative sponsor and nominator and was therefore legible to apply for a grant of a new subclass 401 visa provided his circumstances under the natural justice provisions were understood. Not taking into account all relevant matters and considerations constitutes procedural unfairness.
Particulars
1.The Tribunal could have accepted the new sponsorship of the Mt Zion Christian Fellowship Centre but refused to take that into consideration.
2.The Delegate had stated in its Decision Record that “If a visa holder is found to have changed occupation, program or activity, their visa may be subject to cancellation. (Emphasis added). This clearly suggests that there is discretionary powers available to both the Department’s Delegate as well as to the Tribunal. The Delegate and the Tribunal failed to take into consideration any of the discretionary powers it had.
3.The Tribunal failed to take into account any compelling and compassionate circumstances affecting the visa applicant’s background with Impact Church (the first sponsor and nominator) and reasons as to why the breach occurred, albeit unintentionally and without intention.
The applicants also filed an affidavit (sworn by the first applicant) in support of the judicial review application. That affidavit annexed a copy of the Tribunal’s decision, associated notification letters and information sheets.
On 2 May 2019, procedural orders were made by Registrar Cho of the then Federal Circuit Court of Australia giving the applicants an opportunity to file an amended application, any affidavit evidence and written submissions.
On 1 July 2024, this Court vacated some of those orders and made further programming orders giving the applicants a further opportunity to file any amended application, any additional evidence and written submissions. The Court also ordered that the “matter be listed for a final hearing on a date to be advised”.
The first applicant appeared before this Court (by video link on 4 November 2024) without legal representation. An interpreter in the Fijian language was made available, however, the first applicant indicated that he wanted to speak to the Court in English and would use the interpreter only if necessary. No issues arose in this regard. Mr Matthew Sheedy from Sparke Helmore appeared on behalf of the Minister (also by video link).
The Court asked the first applicant to confirm that he had received copies of the Court Book and the Minister’s written submissions. The Court also asked him to confirm that he would be speaking on behalf of his wife (the second applicant).
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 8 April 2019 (the affidavit being taken as read and in evidence at the hearing on 4 November 2024), a Court Book numbering 245 pages (marked as Exhibit 1 at the hearing of this matter), the affidavit of Paige Elise Durham affirmed on 19 July 2019 and filed on 22 July 2019 (taken as read and in evidence at the hearing of this matter), written submissions filed on behalf of the Minister on 21 October 2024, the Warren affidavit (also taken as read and in evidence at the hearing of this matter) and the affidavit of service of Ms Warren affirmed and filed on 28 October 2024 (also taken as read and in evidence at the hearing of this matter).
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant told the Court that he was not a lawyer and did not really understand everything in the Minister’s submissions – however, as he understood it, the Minister did agree that “the Tribunal made a mistake”. The first applicant also told the Court that, whilst he understood that he had breached his visa condition, there had been “an element of unfairness to [him] and to [his] family because [he] did not voluntarily leave [his] first position with the church”.
The first applicant also raised concerns with the conduct of his “lawyer” or “representative” who assisted him with the Tribunal review. The first applicant told the Court that he was “concerned” that the case was not properly prepared.
The first applicant’s concerns, to the extent that they point to any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Relevant legislative provisions
Before addressing the grounds of review, it is useful to first set out some of the legislative provisions relevant to this matter. It is noted that the relevant provisions set out below are those that were in effect as at the date of the applicants’ visa application (being as at 27 May 2016).
The subclass of visa relevant in this case is a Subclass 401 visa (noting that the first applicant here applied for a Temporary Work (Long Stay Activity) (Class GB) (Subclass 401) visa in the Religious Worker stream). The criteria for the grant of a Subclass 401 visa are set out in Part 401 in Schedule 2 of the Regulations.
Part 401.2 in Schedule 2 of the Regulations sets out the primary criteria for the grant of a Subclass 401 visa. It is explained that the primary criteria for the grant of a Subclass 401 visa “include criteria set out in streams”. It is also explained, relevantly, that if a Subclass 401 visa is applied for in the “Religious Worker stream”, then the criteria in Parts 401.21 and 401.24 in Schedule 2 of the Regulations are considered primary criteria.
It is noted that the criteria set out in Part 401.21 contains “Common criteria” and, as explained in the legislation, includes criteria “for all applicants seeking to satisfy the primary criteria for a Subclass 401 visa” (regardless of the stream).
Of particular relevance in this matter is the “Common criteria” set out in cl 401.214 in Schedule 2 of the Regulations. That clause relevantly provided as follows:
401.214
The applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and
(c)any other relevant matter.
Also of relevance is cl 401.212 in Schedule 2 of the Regulations. That clause relevantly provided as follows:
401.212
(1)The applicant is identified in a nomination of an occupation or activity approved under section 140GB of the Act.
(2)The nomination was made by a person who was, at the time the nomination was approved:
(a) a long stay activity sponsor; or
(b) an exchange sponsor; or
(c) a sport sponsor; or
(d) a religious worker sponsor.
(3)The approval of the nomination has not ceased under regulation 2.75A.
(4) Either:
(a)there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination or a person associated with that person.
The approval of a nomination can cease to be in effect at various times, depending on the circumstances of a particular matter. The period of approval of a nomination for a Subclass 401 visa was set out in reg 2.75A of the Regulations, as follows:
2.75A Period of approval of nomination—other visas
(1)This regulation applies to a nomination of an occupation, a program or an activity in relation to a visa and a person, as explained by the table.
(2) An approval of a nomination ceases on the earliest of:
(a)the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b) 12 months after the day on which the nomination is approved; and
(c)3 months after the day on which the person’s approval as the kind of sponsor that could make the nomination ceases; and
(d)if the person’s approval as the kind of sponsor that could make the nomination is cancelled under subsection 140M(1) of the Act—the day on which the person’s approval is cancelled; and
(f)the day on which the applicant, or the proposed applicant, who is identified in relation to the nominated occupation, program or activity, is granted a visa on the basis of that nomination.
Various conditions are often attached to visas when granted. The first applicant in this matter previously held the initial Subclass 401 visa. That visa was subject to Condition 8107 in Schedule 8 of the Regulations. Condition 8107(4) in Schedule 8 of the Regulations (as applicable to the first applicant’s circumstances), relevantly provided as follows:
8107
…
(4) If the visa is:
(a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(b) a Subclass 402 (Training and Research) visa; or
(ba) a Subclass 420 (Temporary Work (Entertainment)) visa;
the holder must not:
(c)cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(d)engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(e)engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.
These provisions will be discussed further by the Court below.
Grounds of review
Ground one
As outlined above, ground one relevantly provides as follows:
Ground One
The Administrative Appeals Tribunal (the Tribunal) fell into jurisdictional error when it failed to consider the essential integers of the applicant’s case and applied the relevant regulation quite narrowly in determining the circumstances of the alleged breach by the applicant.
Particulars
1.The crucial question that was before the Delegate and the Tribunal was whether the applicant complied essentially and relevantly with Clause 401.214. The findings of both the Delegate and the Tribunal was that the applicant was in breach of Clause 401.214(a).
2.Clause 401.214 has three essential parts to it. Firstly, the applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, having regard to:
(a)whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
(b)whether the applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and
(c)any other relevant factors.
3The applicant submits that the Tribunal failed to take into account other relevant factors that was crucial for it to understand the circumstances of the applicant’s unique circumstances. The applicant was a victim of an approved sponsor and nominator who had changed the applicant’s job description and subjected the applicant to work elsewhere to make ends meet. This was relevant information that the Tribunal failed to take into account and constitutes jurisdictional error.
As correctly summarised by the Minister (at [26] in written submissions filed in this Court on 21 October 2024), the applicants essentially suggest that the Tribunal failed to consider vital integers of their case. In particular, the applicants claim that the Tribunal failed to consider that the first applicant was the “victim of an approved sponsor and nominator … chang[ing] the [first] applicant’s job description” which required the “[first] applicant to work elsewhere to make ends meet”.
The applicants also specifically reference (in particular two of ground one) that cl 401.214 in Schedule 2 of the Regulations “has three essential parts to it” and (in particular three of ground one) the Tribunal failed to take into account “other relevant factors” (as set out in cl 401.214(c) in Schedule 2 of the Regulations).
In this matter, the Tribunal purported to identify the issue before it as follows (emphasis added):
10.The visa was refused because the applicant did not satisfy r.401.214 that requires, essentially and relevantly, that the applicant genuinely intends to stay temporarily in Australia working in the occupation for which the visa was granted and that he has complied substantially with the conditions to which the last substantive visa he held was subject: cl.401.214(a). The issue in the present case is whether the applicant breached a condition of his previous substantial visa, that is, the first Subclass 401 visa he held that was granted in 2014 and that ceased in 2016. The condition in question is condition 8107.
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16.The applicant was told at the beginning of the hearing that this was the issue in question, that he did not meet cl.401.214 because he had breached condition 8107. He was also told that even if his matter was remitted, which was unlikely, he is not identified in a nomination and that it appeared it would not be possible for him to be granted the visa. The applicant’s migration agent sought to explore the matter of the applicant not having a nomination, suggesting that perhaps he should not be required ‘at law’ to be required to have one. After lengthy oral submissions, he was reminded that the relevant and dispositive issue for the Tribunal was whether the applicant had substantially breached a visa condition in the previous substantive visa he held, relevantly condition 8107 relating to the first Subclass 401 visa from 2014 to 2016, not whether he had a nomination.
The Tribunal also stated that (emphasis added):
18.On the evidence, the first Subclass 401 visa was granted to the applicant to work in the occupation of religious worker. He was identified in the nomination by Impact Church, who at that time was an approved sponsor. The applicant’s work with Impact Church was the reason for his travel to and stay in Australia in 2014. He worked there for about a year and two months, from September 2014 to November 2015, then for the remaining seven or so months of the visa period he worked for Mt Zion. He still works for Mt Zion.
19.It is not in dispute that the applicant left Impact Church while he held the first Subclass 401 visa and did not have a new nomination approved. Clause 401.214(a) requires the applicant to have complied substantially with the conditions of his last substantive visa. The Tribunal is satisfied, on the evidence, that the applicant did not comply substantially with condition 8107 of his last substantive visa.
The Tribunal then concluded that (emphasis added):
13.For the reasons given, the applicant does not meet the requirements of cl.401.214(a) because he did not comply substantially with the conditions to which the last substantive visa held by the applicant was subject.
In written submissions (filed in this Court on 21 October 2024), the Minister conceded that “the Tribunal’s decision reveals a clear misunderstanding of the criteria [set out] in cl 401.214” in Schedule 2 of the Regulations. The Court agrees for the reasons that follow.
As outlined above, cl 401.214 in Schedule 2 of the Regulations requires that an “applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted”. The assessment of whether or not an applicant satisfies that criteria is made “having regard to” the factors set out in cll 401.214(a)-(c) in Schedule 2 of the Regulations. Those factors include consideration of whether an applicant has complied substantially with the conditions attached to his or her previous visa but that is not the sole factor for consideration (or, indeed, always a deciding factor) when making such an assessment.
That is, the Tribunal should have made a finding about whether the first applicant genuinely intended to stay in Australia temporarily to carry out the occupation of Pastor or “Religious Worker” and, in coming to that finding, the Tribunal could have had regard to the fact that the first applicant had not complied substantially with the conditions of his last substantive visa (because he ceased being employed by the church and commenced working for the sponsor without the sponsor being approved or submitting a new nomination for him).
This did not occur here. Instead, as correctly submitted by the Minister, the Tribunal appears to have erroneously treated the factors set out in cll 401.214(a)-(c) as “a checklist of criteria”, rather than “factors” informing its assessment of the genuine temporary entrant criteria set out in cl 401.214 in Schedule 2 of the Regulations.
It is clear that by doing so the Tribunal has erred.
Having found that the Tribunal has erred, the Court must consider whether that error is material and whether there would be any utility in remitting the matter to the ART for reconsideration.
In written submissions (filed in this Court on 21 October 2024), the Minister submitted that the error was not material and that remitting the matter to the ART for reconsideration would be futile. The Court agrees for the reasons that follow.
The High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (“LPDT”) explained that the appropriate test for considering whether an error is material is “whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error”: LPDT at [14] (emphasis in original).
The High Court in LPDT also stated as follows in relation to judicial review cases (footnotes omitted):
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion)
As outlined above, a criterion for the grant of a Subclass 401 visa was that the first applicant “be identified in a nomination of an occupation or activity which had been approved under s 140GB of the Act” (see cl 401.212(1) in Schedule 2 of the Regulations) and that the “approval of that nomination had not ceased” under reg 2.75A of the Regulations (see cl 401.212(3) in Schedule 2 of the Regulations).
Here, the nomination application made by the sponsor in respect of the first applicant was approved by the Department on 30 November 2016 (see annexure CW-1 of the Warren affidavit, pp 6-7).
That nomination ceased 12 months after the day on which it was approved, being on 30 November 2017 (see Item 1 in reg 2.75A(1) of the Regulations and reg 2.75A(2)(b) of the Regulations, as was in force at the date of the visa application, being 27 May 2016). As a result, the first applicant was not the subject of an approved nomination that had not ceased at the time of the Tribunal’s decision (as required by cl 401.212(3) in Schedule 2 of the Regulations). Further, as noted above, on 19 November 2016, the Subclass 401 (Temporary Work (Long Stay Activity) visa type ceased to exist by virtue of Division 1 of Part 5 in Schedule 1 of the Amending Regulations. As the Subclass 401 visa type is no longer open to new applications, the applicant would be unable to obtain a new nomination to satisfy the visa criterion upon remittal (see Item 6002(d)(ii) of Part 60 in Schedule 1 of the Amending Regulations).
That is, as correctly submitted by the Minister, the first applicant could not (at the time of the Tribunal’s decision) meet the requirements set out in cl 401.212(3) in Schedule 2 of the Regulations (as correctly identified by the Tribunal at [16] in its written reasons). There is thus no realistic possibility that the Tribunal’s decision could have been different had there been no error on the part of the Tribunal: LPDT at [14].
The first applicant also could not meet those requirements (set out in cl 401.212(3) in Schedule 2 of the Regulations) now. As a result, it would be futile for the Court to remit the matter to the ART for reconsideration as it too would be bound to affirm the delegate’s decision.
On the basis of the above, the Court concludes that the error on the part of the Tribunal is not material and, as such, no jurisdictional error is established.
Ground one is, accordingly, dismissed.
Ground two
Ground two states:
Ground Two
The Tribunal failed to take into account the applicant’s personal circumstances and in failing to properly carry out its statutory task, made an erroneous decision in affirming the Delegate’s decision. A failure to determine the application for review on the factual basis, renders the decision prone to jurisdictional error especially where the Tribunal did not accord the applicant procedural fairness.
Particulars
1.The Delegate in its decision record acknowledged that there may be reasons why the applicant was not working for the sponsor, a visa applicant is responsible for their own visa conditions and legislative requirements. Not once during the delegate’s decision or the Tribunal’s deliberations was it discussed as to the applicant’s knowledge of his visa conditions and legislative requirements.
2.The Impact Church (the first sponsor and nominator) had securely kept the documents pertaining to the visa applicants’ visa grant and the subsequent visa conditions. The applicant had even acknowledged to the Tribunal that “he did not know” that he had to report to the Department.
3.The Tribunal applied a very narrow construction of Condition 8107 and just determined the matter before it on the basis of the same. The Tribunal failed in its task to determine that the applicant had fallen victim to a scrupulous church organisation and not deliberately or voluntarily breached the condition. In not carrying out its task, the Tribunal fell into jurisdictional error.
By ground two, the applicants essentially claim that the Tribunal failed to consider the first applicant’s personal circumstances (those circumstances being that the first applicant had “fallen victim to a scrupulous church organisation and [had] not deliberately or voluntarily breached the condition”) and that by failing to do so, the Tribunal failed to afford the applicants procedural fairness.
This fails on a factual level. The Tribunal accepted that the “manner in which the [first] applicant” had been dismissed appeared “to have been unfair” and had regard to the first applicant’s evidence that he was unaware that he was required to arrange for a new nomination. The Tribunal’s reasons in that regard are outlined below (emphasis added):
13.The matters relating to the applicant leaving his employment with Impact Church and going to work for Mt Zion are contained in the delegate’s decision, a copy of which was provided to the Tribunal when the applicant applied for review. Oral evidence was also given about the circumstances leading to the applicant’s termination of employment. It is accepted by the Tribunal that the manner in which the applicant was dismissed from his position at Impact Church appears to have been unfair.
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17.The applicant confirmed at the hearing that he finished working for Impact Church (the approved sponsor relating to his first Subclass 401 visa) in November 2015 and that he did not arrange or have approved a new nomination before this visa ceased, around seven months later. Reasons were given, including that he did not know he had to and both the applicant and Pastor Karito gave evidence that they now realise it was a mistake.
The Court is satisfied that the Tribunal had regard to the first applicant’s personal circumstances insofar as they related to the manner in which the first applicant was dismissed from his position with the church and his reasons for not arranging for a new nomination application to be made prior to his last substantive visa (being the initial Subclass 401 visa) ceasing.
The Court otherwise considers that the applicants’ complaint here rises no higher than disagreement with the Tribunal’s decision. Disagreement, no matter how strongly felt, does not amount to jurisdictional error.
Ground two is, accordingly, dismissed.
Ground three
Ground three provides as follows:
Ground Three
The Tribunal did not consider that the applicant had in fact secured an alternative sponsor and nominator and was therefore legible to apply for a grant of a new subclass 401 visa provided his circumstances under the natural justice provisions were understood. Not taking into account all relevant matters and considerations constitutes procedural unfairness.
Particulars
1.The Tribunal could have accepted the new sponsorship of the Mt Zion Christian Fellowship Centre but refused to take that into consideration.
2.The Delegate had stated in its Decision Record that “If a visa holder is found to have changed occupation, program or activity, their visa may be subject to cancellation. (Emphasis added). This clearly suggests that there is discretionary powers available to both the Department’s Delegate as well as to the Tribunal. The Delegate and the Tribunal failed to take into consideration any of the discretionary powers it had.
3.The Tribunal failed to take into account any compelling and compassionate circumstances affecting the visa applicant’s background with Impact Church (the first sponsor and nominator) and reasons as to why the breach occurred, albeit unintentionally and without intention.
By ground three, the applicants suggest that the Tribunal did not consider the fact that the first applicant had obtained an alternate sponsor and was therefore eligible to apply for the grant of the visa (being a new Subclass 401 visa).
To the extent that the applicants suggest that the Tribunal failed to consider whether the first applicant had obtained a new sponsor (with a new nomination application), the Court notes that, as again correctly submitted by the Minister, the issue of whether the first applicant was the subject of an approved nomination was not the dispositive issue before the Tribunal. The Court also notes that, as outlined above, this could not have assisted the applicants in any event as the approved nomination ceased 12 months after the day on which it was approved. As the first applicant’s new nomination (submitted by the sponsor) was approved on 30 November 2016 (see annexure CW-1 of the Warren affidavit, pp 6-7), it ceased on 30 November 2017 (and prior to the Tribunal’s decision in this matter which was made on 14 March 2019).
No jurisdictional error arises in this regard.
Insofar as the applicants claim that the Tribunal failed to consider any discretionary powers it had to not cancel the first applicant’s visa, the Court notes that the first applicant’s visa was not cancelled. The Tribunal was required to consider whether the first applicant should be granted a visa (not whether the first applicant’s visa should be cancelled).
No jurisdictional error arises in this regard.
To the extent that the applicants claim that the Tribunal failed to consider the “compelling and compassionate circumstances” of the applicants, the Court notes that there was no express requirement in the visa criteria requiring the Tribunal to do so. However, to the extent that the applicants suggest that the Tribunal failed to consider the first applicant’s personal circumstances generally, the Court disagrees. As outlined above (in relation to ground two), the Tribunal expressly considered the circumstances in which the first applicant was dismissed from his employment and the first applicant’s evidence in relation to why he had not obtained a new sponsor or made a new nomination application whilst he held his previous substantive visa (being the initial Subclass 401 visa).
As pointed out by the Tribunal (at [19]-[20] in its written reasons), it was not in dispute that the first applicant had left the church (whilst he still held his initial Subclass 401 visa) or that he did not have a new nomination. He also did not notify the Department of his changed circumstances.
No jurisdictional error arises in this regard.
Ground three is, accordingly, dismissed.
First applicant’s oral submissions
As outlined by the Court above, the first applicant (in oral submissions before this Court) raised concerns with conduct of his “lawyer” or “representative” who assisted him with the Tribunal review and explained that he was “concerned” that the case was not properly prepared or not prepared very well.
As this Court has previously explained in Chen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 670 (citing Coertzen & Anor v Minister for Immigration & Anor [2020] FCCA 2410 at [80]-[81]) and other similar matters, when assessing an agent’s conduct or professional obligations to his or her client before the Tribunal, the Court can only assist if there is evidence that the migration agent conducted a “fraud” on the Tribunal: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
In effect, in order to constitute a “fraud on the Tribunal”, it must be shown that the fraudulent conduct of the agent (or third party) prevented or disabled the Tribunal from conducting a review in accordance with Part 5 of the Act (as was in force at the time of the Tribunal’s decision). That is, the fraud must have directly impacted the Tribunal’s decision-making process.
On the material before this Court, it cannot be said that the conduct of the applicant’s representative amounted to fraud. Further, negligence, incompetence, bad advice or a lack of preparedness (while always unacceptable) do not amount to jurisdictional error on the part of the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
An applicant’s recourse for negligence, incompetence or bad advice (and the Court makes no findings about the applicants’ second representative in this regard) is to the appropriate regulatory authority – the Office of the Migration Agents Registration Authority – or, in some circumstances, via a civil claim filed elsewhere.
No jurisdictional error arises in this regard.
MINISTERIAL INTERVENTION
The circumstances of this matter are most unfortunate.
The first applicant in this matter appears to have been poorly treated by the church he was initially employed with and sponsored by. As a result, the first applicant breached his visa conditions. The Tribunal expressed its sympathy for the first applicant and the situation he and his family found themselves in. This Court does so too.
The evidence before the Court (and the Tribunal) indicated that the first applicant was considered a “valuable employee and Pastor who does good work in the community, including with indigenous people”.
Unfortunately, for the reasons set out above, the Court is not able to assist the applicants in relation to their judicial review application.
The Court does, however, consider that the applicants’ circumstances are compelling.
The Court draws the applicants’ attention to the Minister’s discretionary powers pursuant to s 351(1) of the Act. Where, as is the case here, the Tribunal has affirmed a decision refusing the applicants the visas, and that decision has been upheld on review, the Minister has a statutory discretion to substitute a more favourable decision.
The Court encourages the applicants to seek Ministerial intervention in relation to this matter.
CONCLUSION
The application for judicial review (filed by the applicants on 8 April 2019) and the first applicant’s oral submissions before this Court have failed to identify any error on the part of the Tribunal. This Court is also unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 February 2025
SCHEDULE OF PARTIES
SYG 870 of 2019 Applicants
Fourth Applicant:
LIVAI ROKOVUKI KALOUTOLU
Fifth Applicant:
SIMIONE RARAMAVOU KALOUTOLU
Sixth Applicant:
EMORY ROKOVUKI KALOUTOLU
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Immigration Decision-making
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Compliance with Visa Conditions
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Ministerial Intervention
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Jurisdictional Error
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Administrative Law
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Substantial Compliance
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