ROZANA (Migration) - [2024] ARTA 62

DECISION AND
REASONS FOR DECISION
ROZANA (Migration) ARTA 62 (3 December 2024)
Applicant:Mrs Rita Rozana
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2109988

Tribunal:Tegen Downes
Place:Brisbane
Date: 3 December 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa

General Member T Downes
Statement made on 3 December 2024 at 8:15AM

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 May 2019. The delegate refused to grant the visa because the applicant did not satisfy cl 461.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which requires that the applicant has complied substantially with the visa conditions of her previous substantive visa.
The application was listed for hearing on 28 November 2024. The applicant did not appear at the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in the present case is whether the applicant satisfies cl 461.225 of Schedule 2 to the Regulations, which requires that at the time of decision:
If the applicant is in Australia at the time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
The phrase ‘complied substantially’ is not defined in the Act or the Regulations. The leading case on the judicial interpretation of this phrase is Kim v Witton (1995) 59 FCR 258, in which Sackville J relevantly said:
43. The Tribunal in the present case accepted that an applicant might "comply substantially" with a condition imposing a prohibition, even if the condition has been breached. I think that the Tribunal was correct to do so. As the Tribunal observed in Re Wakefield, unreported, 6 March 1992, at 4, the regulations contemplate that "some degree of non-compliance with visa conditions" may be permitted. Whether the applicant has "complied substantially" with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.
44. The Tribunal in the present case summarised and accepted the principles formulated by the Immigration Review Tribunal in Re Sekido, unreported, 6 March 1992. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the "proportionality" of the breach and the bona fides (or lack of bona fides) of the applicant. Re Sekido itself was a case of breach of a condition relating to employment, in which the Tribunal characterised the principal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] ARTA 62
Decision Date: 3 December 2024

CaseChat Overview and Summary

The case involves a New Zealand citizen who had applied for a review of a decision by the Department of Home Affairs to refuse her visa application under the subclass 461. The refusal was based on the applicant's failure to maintain health insurance cover as required by the visa conditions. The applicant, who had previously held a visa, had obtained health insurance for the first year of her visa but did not renew it during the period of her visa. Upon being asked for further information by the Department, she obtained new health insurance, but did not respond to the Tribunal’s communication or attend the hearing. The Tribunal made a decision without a hearing, which the applicant sought to have reviewed.

The legal issues that the Administrative Review Tribunal had to decide included whether the Tribunal was correct in making a decision without a hearing, and whether the decision to refuse the visa was lawful. Specifically, the Tribunal had to determine if it was appropriate to make a decision without a hearing under s 106 of the Administrative Review Tribunal Act 2024, and if the decision to refuse the visa was based on sufficient evidence.

The Tribunal found that it was appropriate to make a decision without a hearing because the applicant failed to attend the hearing despite receiving appropriate notice. The Tribunal also considered that the issues could be adequately determined in the applicant's absence, and that there were no issues that required further evidence or submissions from the parties. The Tribunal found that the applicant had not substantially complied with the visa conditions, particularly in relation to the requirement to maintain health insurance, and that the decision to refuse the visa was based on sufficient evidence. The Tribunal affirmed the decision to refuse the visa.

The Tribunal affirmed the decision to refuse the visa and dismissed the application for review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The interpreter left a voice message stating words to the effect of “this is the Administrative Review Tribunal calling in relation to your review application about the refusal of your 461 visa” and stating words to the effect that the Tribunal could conduct the hearing via telephone. There is no record of the applicant having contacted the Tribunal in response to this voice message.Decision without a hearing Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides: Tribunal may make decision without hearing in certain circumstances(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies. …(5) This subsection applies if:(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and (b) the party is not a non - participating party to the proceeding or Tribunal case event; and (c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. Note 1: Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4). The Administrative Review Tribunal Bill 2023 Revised Explanatory Memorandum provides: 707.In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties. The Tribunal should also exercise appropriate discretion in exercising this power and consider whether it is appropriate, particularly if there has only been one instance of non-compliance or failure to appear. … 710. This clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing. It also provides additional powers to the Tribunal to manage non-compliance with an order or failure to appear of parties other than the applicant and promotes parties’ participation in the proceeding. This enables the Tribunal to control proceedings and prevents non-applicant parties from being able to frustrate the Tribunal process. Section 106(5) is potentially enlivened because the applicant failed to proceed at a Tribunal case event, namely the Tribunal hearing, and the applicant is not a non-participating party. The Tribunal also has the power under s 99 of the Act to dismiss the application in circumstances where the applicant fails to appear at a Tribunal case event and the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event. According to the Revised Explanatory Memorandum, this power should be ‘exercised sparingly’.

Ratio Decidendi

Legal Principle Established

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