Shah v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 241
•15 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 241
File number: SYG 3442 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 15 March 2024 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant the applicant a student visa – whether the Tribunal lacked jurisdiction – whether the Tribunal misinterpreted the relevant law – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed. Legislation: Constitution s 75
Migration Act 1958 (Cth) ss 65, 338, 347, 348, 349, 359AA, 359A, 360, 360A, 366, 379A, 379G, 476, 477
Migration Regulations 1994 (Cth) reg 4.21, cl 500.212
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 11 March 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms D Stone Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 3442 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMED SAQIB SHAH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 MARCH 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 student visa in Australia. A delegate of the Minister refused to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa (student visa) and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision by way of an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant asserts jurisdictional error on the basis that the Tribunal did not have jurisdiction in the matter, the Tribunal misinterpreted relevant legislation and the Tribunal denied him procedural fairness.
For the reasons explained below, the applicant has not established that the Tribunal made a jurisdictional error in reaching its decision in this matter. The application for judicial review is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant entered Australia as the holder of a Student (Class TU) (Subclass 572) visa in December 2007. Between November 2013 and November 2017 he held a Temporary Work (Skilled) (Subclass 457) visa.
On 17 November 2017 the applicant applied for the student visa the subject of this judicial review application.
A delegate of the Minister decided not to grant the applicant a student visa on 7 February 2018. The delegate found that the applicant did not meet cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) because the delegate was not satisfied that the applicant genuinely intended to stay in Australia temporarily.
On 14 February 2018 the applicant made an application to the Tribunal seeking merits review of the delegate’s decision.
On 10 October 2019 the Tribunal invited the applicant to provide further information by completing a Request for Student Visa Information form to demonstrate that he was enrolled in a registered course of study and that he was a genuine applicant for entry and stay as a student. The Tribunal when issuing this invitation included a copy of Ministerial Direction No 69 and indicated to the applicant that it was required to have regard to the Direction in assessing whether the applicant was a genuine applicant for entry and stay as a student. The applicant provided a completed Request for Student Visa Information form and genuine temporary entrant statement to the Tribunal.
On 28 November 2019 the Tribunal invited the applicant to attend a hearing on 16 December 2019. The applicant attended the hearing with the assistance of his migration agent and an interpreter in the Urdu and English languages.
On 16 December 2019 the Tribunal affirmed the delegate’s decision not to grant the applicant a student visa.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant was a genuine applicant for temporary entry and stay in Australia as a student, as required by cl 500.212, which provides:
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The Tribunal identified that in considering whether the applicant met the genuine temporary entrant criterion in cl 500.212(a), it was required to have regard to Ministerial Direction No 69.
The Tribunal was not persuaded that the applicant’s enrolment in an Advanced Diploma of Leadership would increase his practical skills set or add further value to his future that is outweighed by the cost and time commitment required for the current course of study. The Tribunal was not satisfied that the applicant had demonstrated how the completion of his course would enhance his prospects of obtaining the claimed salary for running a restaurant in Pakistan. The Tribunal acknowledged that there may be some value obtained by the applicant completing his course, but based on the evidence before it the Tribunal was not satisfied the value exceeded the cost of tuition and living expenses that would be incurred by the applicant while residing in Australia.
The Tribunal acknowledged the applicant’s evidence that he has family in Pakistan who he regularly keeps in touch with by telephone and social media, but was not satisfied that the applicant had significant enough personal ties to his home country that would motivate him to return there after he completes his study. The Tribunal made this finding in circumstances where the applicant had only returned home for four weeks over an approximate 12 year period and the Tribunal considered that to be highly indicative of somebody who does not intend to stay in Australia temporarily.
The Tribunal found the applicant had no significant economic ties to Pakistan that would entice him to return home and had difficulty accepting the applicant’s assertion that he had not worked in Australia since the expiry of his last visa. The Tribunal acknowledged the applicant’s evidence that he did not have concerns about military service commitments or political or civil unrest in Pakistan that would serve as an incentive for him not to return home in the future.
The Tribunal had regard to the applicant’s evidence as to his potential circumstances in Australia and found that the applicant has close ties to the Australian community and this may be an incentive to remain in Australia. The Tribunal also found that the applicant had not demonstrated any significant research into his education provider that would be consistent with a genuine student seeking to study in a foreign country.
The Tribunal found the applicant undertaking vocational courses was inconsistent with the Bachelor of Science degree he obtained in Pakistan. The Tribunal considered the applicant’s conduct was consistent with that of an individual who wishes to stay in Australia permanently, rather than to study on a temporary basis.
The Tribunal considered the applicant’s immigration history and found there was no evidence before it of a failure to comply with visa conditions in the past or a failure to comply with immigration law.
The Tribunal noted that the applicant had been onshore since 2007 and had only returned home for a period of four weeks.
Considering all relevant information, the Tribunal was not satisfied the applicant genuinely intended to stay in Australia temporarily and found that cl 500.212(a) was not met. Therefore, the Tribunal found that the applicant did not meet the requirements of cl 500.212 and it affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 24 December 2019 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 his application:
1. >< jurisdictional error and lacked jurisdiction
2. >< Error in interpretation of legislation
3. Natural Justice.
The only relief sought by the applicant in his application as filed was an order that the decision of the Tribunal be quashed. The applicant did not seek a writ of mandamus to require the Tribunal to redetermine his application according to law. The Court’s jurisdiction to hear migration matters is set out in s 476 of the Migration Act and s 476(1) provides that, subject to that section, the Court has the same jurisdiction in relation to migration matters as does the High Court under s 75(v) of the Constitution. That provision requires that an applicant seek a writ of prohibition or mandamus or an injunction against an officer of the Commonwealth. At the hearing, I made an order allowing the applicant to orally amend his application to seek a writ of mandamus and I am satisfied that the application now invokes the Court’s jurisdiction.
Pursuant to an Order made by a Registrar of this Court on 21 September 2023, the applicant was required to file and serve any written submissions 28 days before the hearing. The applicant did not file any submissions in accordance with the Order. The Minister filed and served written submissions ahead of the hearing and the applicant confirmed at the hearing that he had read those submissions.
At the hearing I explained to the applicant that his grounds lacked sufficient detail for the Court and the Minister to properly understand the jurisdictional errors that he believes the Tribunal made, but that he would have an opportunity to provide that detail in his submissions. I stood the matter down to give the applicant an opportunity to consider what he wished to say to the Court and I address below the matters raised in the applicant’s oral submissions.
CONSIDERATION OF THE APPLICANT’S GROUNDS
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 Shang Liang (1996) 185 CLR 259 (Wu Shang Liang) at 272.
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 (Eshetu) at [40].
Ground 1: The applicant’s assertion that the Tribunal did not have jurisdiction
At the hearing, when the applicant had the opportunity to provide details as to why he believes the Tribunal made a jurisdictional error or lacked jurisdiction to conduct the review, the applicant submitted that:
(a)When he lodged the application, he wanted to get the qualification and then return to Pakistan to get a good job, but the Tribunal did not consider his needs.
(b)The Tribunal did not properly assess the applicant’s future needs. He did not have the qualification for which he sought the student visa and he wanted a good degree for him and his family. But the Tribunal did not consider this and did not consider his needs.
(c)During the hearing, the Tribunal said that the applicant did not have strong family ties. The applicant said that there were reasons he was not able to go back to Pakistan, but he is in constant contact with his family by telephone. The Tribunal said that his case was not genuine and that he intended to stay in Australia for longer, but he did not have such intentions.
When purporting to explain his ground asserting a denial of natural justice, the applicant submitted that the procedure was unfair because he was working as a cook for four years. He applied for a new visa when his visa was about to expire but the Tribunal said that he had no family ties, when in fact he has deep family ties. The applicant submitted that his old boss was cruel and paid him only $200 per week and did not let him go back to Pakistan for five years. Although these submissions were made in the context of ground 3, they raise similar issues to the other matters raised by the applicant in relation to ground 1, and so I consider the submissions to be relevant to ground 1 too.
To the extent that the applicant’s submissions simply express disagreement with the Tribunal decision, they cannot establish jurisdictional error. Disagreement with the Tribunal decision, even emphatic disagreement, does not of itself establish jurisdictional error: Eshetu at [40]. To the extent that the applicant might have been asking the Court to find that he meets the criteria for a student visa, as I explained to the applicant at the hearing, the Court cannot do this. The Court does not have jurisdiction to review the factual merits of the Tribunal decision: Wu Shang Liang at 272.
The Tribunal considered the applicant’s reasons for wishing to complete an Advanced Diploma of Leadership and considered the value of the course to his future. This can be seen most clearly at [32]-[36] of the Tribunal’s reasons, where the Tribunal said:
32.The Tribunal has had regard to the applicant’s evidence as to the value of the course to the applicant’s future, as follows:
•The applicant contended that he always had plans to set up his own business in the hospitality industry in Pakistan.
•He has learned a lot working as a cook about the hospitality industry but the reason for taking up the leadership and management course is because he wants to open his own restaurant business
•He needs globally recognised qualifications to have an edge over his competitors
•The applicant will seek a loan to start his business, from an internationally recognised bank such as [Pakistan Industrial Credit and Investment Corporation (PICIC)] Commercial Bank in Pakistan and he will seek membership from the All Pakistan Restaurant Association.
•He expects to receive an income of between 150,000 to 300,000 rupees per annum..
33.The Tribunal cannot be satisfied based on the above that the applicant has objectively demonstrated how the completion of the Advanced Diploma of Leadership and Management course will enhance his prospects of obtaining a salary of the amount he contends running a restaurant in Pakistan. The Tribunal further notes the applicant has not produced objective evidence as to how he contends that achieving a salary in the range he asserts is remotely achievable.
34.At the time of decision, the applicant has clearly already attained various vocational level qualification namely, an Advanced Diploma of Tourism Management. He has also attained vocational qualifications in hospitality. The Tribunal finds that objectively, the applicant has more than sufficient skills, knowledge and qualifications to have confidence to embark upon opening his own restaurant in Pakistan.
35.The Tribunal acknowledges that some value may be obtained by the applicant in completing his vocational course, however, based on the evidence above, the Tribunal cannot be satisfied that this value exceeds the cost of the tuition and living expenses that would be incurred by the applicant while residing in Australia.
36.The Tribunal is therefore not satisfied based on the evidence, that the proposed further vocational course of study the applicant is currently undertaking is likely to increase his employment prospects and remuneration in his own country, given that the applicant has made only vague assertions about the business he intends to open and from where he will obtain the funding to do so.
The Tribunal considered the applicant’s evidence and made findings that were open to it on the material before it. The Tribunal was not required to uncritically accept the applicant’s evidence as to the value of the course to his future.
The Tribunal also considered the applicant’s family in Pakistan and his ties to his home country. The Tribunal expressly acknowledged the applicant’s evidence that his parents and siblings live in Pakistan and that he claimed to stay in touch with them every week via telephone and social media. While the Tribunal did not expressly refer to the applicant’s claim to the Court that his previous boss prevented him from returning to see his family for five years, there is no evidence before the Court to show that this was raised before the Tribunal and the applicant did not expressly submit to this Court that he gave any evidence of this to the Tribunal. The Tribunal is not required to, and cannot, consider evidence that was not before it.
The Tribunal considered the evidence before it that since arriving in Australia in 2007, the applicant had returned to Pakistan only once for four weeks in 2013. The Tribunal’s finding was not that the applicant had no ties to Pakistan, but rather that the ties he had to Pakistan were not significant enough to motivate him to return to Pakistan at the completion of his studies. This finding was made at [25] of the Tribunal’s reasons, where the Tribunal said:
The Tribunal is unable to find that the applicant has significant enough personal ties to his home country such that would motivate him to return there after he completes his studies. The Tribunal bases this finding on the fact that he has only returned home for four weeks over an approximate 12 year period and the Tribunal finds this to be highly indicative of someone who does not intend to stay in Australia temporarily.
This finding was open to the Tribunal on the evidence before it and does not establish jurisdictional error.
The matters raised by the applicant in his oral submissions to the Court do not establish jurisdictional error in the Tribunal decision.
Insofar as the applicant’s written ground may be seen as asserting that the Tribunal lacked jurisdiction to conduct the review, it is not established. As the Minister submitted, the delegate’s decision was a ‘Part 5-reviewable decision’ within the meaning of s 338(2) of the Migration Act. Subsection 338(2) of the Migration Act relevantly provides:
A decision … to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration zone; and
(b)the non-citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii)had been refused immigration clearance and had not subsequently been immigration cleared …
The application to the Tribunal was made by the applicant, who had standing to make the application for review pursuant to s 347(2)(a) of the Migration Act. The application was made in the approved form and was given to the Tribunal less than 28 days after he received notification of the delegate’s decision: see s 347(1)(a) and (b) of the Migration Act. There is nothing before the Court to indicate that the application fee was not paid, as required by s 347(1)(c). I am therefore satisfied that the application for review was properly made under s 347 of the Migration Act and the Tribunal was required by s 348 of the Migration Act to conduct the review. Therefore, the Tribunal had jurisdictional to conduct the review.
Ground 1 is not established.
Ground 2: The applicant’s assertion that the Tribunal misinterpreted the relevant law
When the applicant was asked to identify the legislation that, in his view, the Tribunal misinterpreted and to explain why he believes the Tribunal misinterpreted the legislation, the applicant submitted that he had all the required documents for the grant of a student visa, such as bank statements and medical tests, but the Tribunal did not grant him a student visa.
This appears to be a bare assertion that the applicant believes he met the criteria for a student visa, and not an assertion of jurisdictional error in the Tribunal decision.
In order to be granted a student visa, the applicant was required to satisfy a number of mandatory criteria set out in Part 500 of Schedule 2 to the Regulations. The Tribunal focused on the genuine temporary entrant criterion in cl 500.212 (a) of the Regulations.
I accept the Minister’s submissions that the Tribunal did not err in its interpretation or application of this criterion. The Tribunal correctly identified the considerations relevant to determining whether the applicant intended to genuinely stay in Australia temporarily and understood that it was required to consider the factors identified in Ministerial Direction No 69, whilst acknowledging that the Direction was not to be used as a checklist. The Tribunal proceeded to assess the applicant’s evidence to determine whether it was satisfied the applicant intended to remain in Australia temporarily. On the evidence before it, the Tribunal was not satisfied the applicant genuinely intended to stay in Australia temporarily and therefore found that he did not meet the requirements of cl 500.212(a).
I also accept the Minister’s submission that the Tribunal did not make an error of the kind identified in Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. The Tribunal did not make any finding that the applicant intended to stay in Australia for a defined or otherwise finite period. The Tribunal remained focused in its reasons on whether the applicant genuinely intended to remain in Australia temporarily and was not satisfied that the applicant genuinely intended to stay in Australia temporarily. Having considered all relevant factors, the Tribunal found that the applicant’s circumstances were indicative of a person whose primary purpose for seeking the visa was to maintain ongoing residence in Australia.
Having found that the applicant did not meet the genuine temporary entrant criterion, the Tribunal, exercising the relevant powers of the Minister, had no option but to affirm the delegate’s decision. The Tribunal in conducting the review was able to exercise the powers and discretions conferred by the Migration Act on the person who made the reviewable decision: s 349(1) of the Migration Act. This included the power in s 65 of the Migration Act relating to making decisions to grant or refuse to grant visas. Where a decision-maker is not satisfied that all criteria prescribed by the Migration Act or Regulations for the grant of the visa have been satisfied, the decision-maker is required to refuse to grant the visa. It was therefore unnecessary for the Tribunal to consider whether the applicant met the other criteria for the grant of a student visa.
Ground 2 is not established.
Ground 3: The applicant’s assertion that he was denied natural justice
The applicant submitted that during the Tribunal hearing, he appeared by telephone and the Tribunal asked him back-to-back questions and he did not have sufficient time to answer them all. When asked whether he had any evidence of what was said at the Tribunal hearing, the applicant submitted that it was his first time having to appear at a hearing and he was unable to give appropriate answers because of the lack of time and the back-to-back questions. He subsequently said that he was able to answer all the questions but could not give details.
There may be some cases where the way in which the Tribunal asks questions of an applicant may give rise to a finding or inference that the Tribunal’s invitation to an applicant to attend a hearing was not a real and meaningful invitation. There is no evidence before the Court to suggest that this is such a case, and the applicant’s submissions, when considered as a whole, do not meaningfully suggest that this is such a case.
It is unsurprising that the Tribunal asked the applicant a lot of questions, given that the Tribunal has inquisitorial functions and the purpose of inviting the applicant to attend a hearing is to give him an opportunity to give evidence and present arguments in relation to his review application – a process which is facilitated by the asking of questions. The applicant himself acknowledged that the questions asked by the Tribunal were meaningful and that he was able to answer them but did not give detailed answers. It appears that in some ways, the applicant’s concern relates more to his performance at the hearing than the Tribunal’s conduct. While the applicant submitted to the Court that the Tribunal asked ‘back-to-back’ questions, he did not suggest that the Tribunal cut off his answers or prevented him from answering the questions that were asked. Further, the applicant attended the hearing with his migration agent and there is no evidence before the Court to suggest that either the applicant or his agent raised any concerns with the Tribunal about the time available to answer questions. I do not accept that the applicant’s complaint about the speed with which the Tribunal asked questions establishes jurisdictional error.
I also consider, in the context of this ground, the applicant’s complaint that the procedure or process was unfair because he was working as a cook for four years, and he applied for a new visa when his visa was about to expire, but the Tribunal did not accept that he had sufficient family ties. This complaint does not establish jurisdictional error.
It appears to me that the complaint about the process is not so much directed to the process adopted by the Tribunal but to the applicant’s visa situation more generally. The applicant appears to be asserting that because he had been in Australia for a long time, because he did the right thing by applying for a new visa before his previous visa expired, and because he believes he met the criteria for the grant of the visa, he should have been granted a visa. This does not assert or establish jurisdictional error on the basis of the procedures adopted by the Tribunal in making its decision. Nor does the applicant’s mere assertion of disagreement with the decision reached by the Tribunal amount to jurisdictional error.
I otherwise accept the Minister’s submissions that the Tribunal complied with its procedural fairness obligations in Division 5 of Part 5 of the Migration Act. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, as it was required to do by s 360 of the Migration Act. As discussed above, the invitation appears to have been a real and meaningful one and the dispositive issue before the Tribunal was the same as the dispositive issue before the delegate.
I am satisfied that the notice of the invitation complied with the requirements of s 360A of the Migration Act, because it:
(a)clearly indicated the day, time and place of the hearing;
(b)was given to the applicant by email sent to his migration agent and authorised recipient, which is an authorised method of communication pursuant to ss 379A(5) and 379G(1) of the Migration Act;
(c)gave the applicant at least 14 days’ notice of the hearing, as required by s 360A(4) of the Migration Act and reg 4.21(4) of the Regulations; and
(d)contained a statement addressing what may happen if the applicant fails to appear at the hearing, as required by s 360A(5) of the Migration Act.
I note that in his reply submissions, the applicant complained that the invitation was not in person. I understand this complaint to be directed to the fact that the Tribunal conducted the hearing by way of telephone. This does not give rise to jurisdictional error and it was open to the Tribunal to allow the applicant to appear before it and give evidence by telephone, pursuant to s 366 of the Migration Act. There is nothing to suggest that appearing by telephone, rather than in person, interfered with the applicant’s right to a proper hearing.
The Tribunal decision was based on information given by the applicant and no obligation to invite the applicant to comment on information pursuant to ss 359A or 359AA arose in this matter.
Ground 3 of the application does not establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 March 2024
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