SINGH v Minister for Immigration - [2020] FCCA 2674

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2674

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.357A, s.359AA

Migration Regulations 1994, Sch.2 – cl.500.212

Cases cited:

Saini v the Minister for Immigration and Border Protection [2016] FCA 858

Eros v the Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCA 1061

Inderjit v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCAFC 217

First Applicant:

GURPREET SINGH

Second Applicant:

AMANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 183 of 2020

Judgment of:

Judge Vasta

Hearing date:

26 August 2020

Date of Last Submission:

26 August 2020

Delivered at:

Brisbane

Delivered on:

26 August 2020

REPRESENTATION

Counsel for the Applicants:

Mr A. See

Solicitors for the Applicants:

Chand Lawyers

Solicitors for the First Respondent:

Spark Helmore

ORDERS

That the Application filed 23 March 2020 is dismissed.
That the Applicants pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 183 of 2020

GURPREET SINGH

First Applicant

AMANDEEP SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

On 27 February 2020, the Administrative Appeals Tribunal (“the AAT”), by oral reasons, affirmed a decision of the Delegate not to grant the Applicant and his wife (“the second Applicant”) student visas. The AAT reduced the oral reasons to writing on 18 March 2020. On 23 March 2020, the Applicant asked this Court to review that decision.
The background to the matter is that the Applicant is a citizen of India, and he arrived in Australia on 3 January 2014 under the auspices of a student visa. He has since partnered with a woman who is, as it were, a dependent Applicant upon his student visa application, and they have a child. The child was born subsequent to the current application for a visa, so therefore the child is not a party to this matter.
The Applicant claimed that he has links in his home country in the form of his parents and his brother. His brother is studying in university, and his father is running an agricultural business. His mother attends to home duties. The Applicant described the family as being upper-middle class and says that they have a large house. He said to the Delegate, and the Tribunal, that they have the capacity to support him financially should he be required to return to India prior to his intended return at the conclusion of his studies.
The Applicant said that he keeps in contact with his family fairly regularly, mostly on a daily basis, using electronic media and the like. The family, itself, have not come to Australia to visit the Applicant during his time in Australia.
The Applicant said that he has no concerns in respect of any military service commitments, nor does he fear any political or civil unrest in the area of India where his family lives.
The Applicant said that in Australia he has a small circle of friends with whom he has become acquainted through his studies and his work. He socialises with these people on, it would seem, a fortnightly basis and sees them for dinner in his home, or in undertaking or participating in community events from time to time. He did not speak of these activities as being regular occurrences.
The Applicant has worked in Australia in a number of jobs, and his most recent employment was as a tow truck driver on a commission basis. He indicated that he would work about 18 or 19 hours a week on the weekends, and he would earn, perhaps, $400 in a good week.
The Applicant’s partner, or wife, has not worked since she has been in Australia, and the wife is now caring for their young child. The Tribunal noted that the Applicant’s earnings are insufficient to meet the costs of living and studying in Australia. The Applicant told the Tribunal that his father has been generously supporting him since his arrival in Australia to meet those costs.
The Tribunal noted that when the Applicant came to Australia, it was with a view to obtain qualifications in the IT field. The Applicant attempted a Certificate IV in Web-Based Technologies, a Diploma of Website Development and a Bachelor of Information Technology during the year 2014.
The Applicant said quite candidly that, despite his rigorous efforts to succeed in those studies, these studies were difficult for him and he was unable to complete them. He said that, as a result, he decided that he needed to change direction with a view to being involved in business.
He then undertook several courses. There was a Diploma of Business at the Skills Institute, then an advanced Diploma of Business, and then a Diploma of Marketing and an advanced Diploma of Marketing. Those four diplomas were undertaken for periods, it would seem, of about six months each, from July 2014 to February 2015; from February 2015 to August 2015; from August 2015 to February 2016; and then, lastly, from February 2016 to August 2016.
The Applicant then moved on from the Skills Institute, and he went to an institution called the New York College. There he completed the Diploma of Leadership and Management between October 2016 to October 2017. Then he completed an advanced Diploma of Leadership and Management from November 2017 to November 2018.
The Applicant told the Tribunal that he had then intended to return home, but then decided to change course direction again, and since that time has been undertaking automotive body repair studies at the Oceania College of Technology.
The Applicant said that he has recently completed a Certificate III in Automotive Body Repair. According to the Tribunal, this was completed in February 2018, but that would seem to be an incorrect date. It would be more likely that it was completed in 2019 or 2020.
In any event, the Applicant is currently undertaking a Certificate IV in Automotive Body Repair Technology, which is due to finish in January 2021, according to the COE that the Applicant gave to the Tribunal. He said that his future intentions are they he would return to his hometown to commence a motor body repair business.
He said that he made preliminary inquiries and, in that regard, has had his father undertake research as to the financing of obtaining machinery and the like. He said that the premises to be used for that business would be a vacant building that his uncle owns, and that he, the Applicant, would rent those premises for the conduct of his business. He presented a project report in respect of that business.
The Tribunal noted that since the Applicant had arrived on 23 January 2014, he departed Australia on two occasions: firstly, between November 2017 and December 2017 for about 28 days, and then on the second occasion in April 2018, for a period of 21 days. The Tribunal asked him about his knowledge of living in Australia, and also asked him in relation to the education provider. The Applicant gave a satisfactory understanding of those matters.
The Tribunal noted that the Applicant had a student visa that was granted in September 2013, with which he then arrived in Australia in January 2014. That visa ceased in March 2017. The Applicant had been given a second visa in April 2017, which went through to March 2019. It was about the time of the cessation of that second student visa that the Applicant applied for the present visa.
The Tribunal noted that Applicant has at all times complied with the visa conditions and that the Applicant has only travelled between India and Australia in those two periods that I have previously noted.
The Tribunal said that what they did was that they put to the Applicant the concerns it had in respect of a number of issues.
The first issue that they had was that the Applicant had been in Australia for six years, and if he stayed until the end of his studies that would be seven years. He had only left Australia during that time for seven weeks. The Applicant said that he would have left at the conclusion of the leadership and management studies but he then set upon his plan in respect of motor body repair businesses and he decided to stay for a longer period.
The Tribunal suggested to the Applicant that there were gaps in his studies and those gaps appeared in 2017/2018. The Applicant acknowledged those gaps but did not go into much detail explaining what was happening during those gaps.
The Applicant was questioned in relation to the changes of mind that he had given the, to use my words, disparate vocations that are suggested by the course of studies that the Applicant had undertaken. The Applicant explained that he struggled with information technology subjects, but that it was always his view to operate in the business environment so that is why he took those other courses. With regard to the change to vehicle body repair, he said that he was in discussion with his family and that this was a growth area in India, and so, therefore, it presented some good prospects in that regard.
The Tribunal, then, spoke of the last issue of concern to it which was the project report. The project report itself was given to the Tribunal. It was noted that the Applicant said that this report had been prepared by experts to assist with his planned operation. But the document itself was on plain paper. Even though it was said to have been completed by chartered accountants, there were no identifying elements either in the shape of letterheads or signatures or any other such indicia that appear on that document.
At paragraph 20, the Tribunal said the following:
… The applicant was invited to answer how the Tribunal can be assured that this is not just a recycled assignment that the applicant had to undertake in respect to his business studies. The applicant suggested that it was probably an honest mistake by the chartered accountant, that he did not do what most professionals would do, in that they would have some identifying marks for the work that they put out as being the product of their skill and professional knowledge and intended to be relied upon by their clients.
The Tribunal reported that the Applicant requested an adjournment to provide this information that would show that it was from a professional organisation. The Applicant said that he had supporting documentation from the banks and information regarding the supply of equipment.
The Tribunal said that they considered that the Applicant had been on notice since receiving the invitation to attend the hearing on 2 January 2020. In that notice, the Applicant was invited to provide all documents that the Applicant intends to rely on to establish that he met the criteria for the visa. Additionally, the Tribunal noted that the Applicant had the services of a registered migration agent.
In those circumstances, the Tribunal considered that the Applicant had more than enough opportunity to provide the information. Indeed, he had availed himself of the opportunity to provide even further submissions on the day of the hearing, and it was considered by the Tribunal that such was properly within the Applicant's power to have done so. The Tribunal then declined to allow that additional time.
The Tribunal noted that the key issue is whether the Applicant intends genuinely to stay in Australia temporarily. The Tribunal noted the considerations that are set out in clause 500.212 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) and the Tribunal noted that they must have regard to Direction 69.
The Tribunal then listed some 21 aspects that it considered to be relevant. They were matters that were both in the Applicant's favour and not in the Applicant's favour.
At paragraph 26 of their reasons, the Tribunal said:
Balancing all these findings, the Tribunal considers the weight of the evidence points more to those factors not favouring the applicant's case, rather than those factors which are supportive of his case. In that balancing exercise, weighing the particular factors, the Tribunal considers that the factors weigh more heavily to establish there is not a significant incentive for the applicant to return to his home country and that the student visa is being used to maintain ongoing residence in Australia, than do the other factors which are either neutral or in the applicant's favour.
The Tribunal said that having regard to all of those matters, the Tribunal was not satisfied that the Applicant intends genuinely to stay in Australia temporarily; therefore, he did not meet the criterion. The Tribunal noted that the wife or partner of the Applicant did not have her own claims but that her application was dependent on the success or otherwise of the Applicant's application, and as I have said, the child of the Applicant and his partner was not an Applicant. The decision was, therefore, affirmed.
The application before me today proceeded upon the basis of grounds found in an amended application which was not actually filed, however, was found in two affidavits of the solicitor, Mr Chand; the first was filed on 30 June 2020 and the second was filed on 12 August 2020. Notwithstanding that the amended application was not actually filed, the matter has proceeding upon those matters being the grounds of the application.

There are three grounds to the application, all of which use the same preamble. I will read that into the record.
In reaching its decision that the Applicant did not intend generally to stay in Australia temporarily in accordance with paragraph (a) of Clause 500.212 of Part 500 of Schedule 2 to the Migration Regulations 1994 and thereby did not meet the primary criteria to satisfy the issuing of a sub-class 500 student visa [paragraph 27 of the decision], the Second Respondent took into account irrelevant considerations and thereby committed jurisdictional error.
So ground 1 is, the AAT took into account irrelevant considerations and thereby committed jurisdictional error.
Ground 2 is that:
…The Second Respondent committed jurisdictional error when the facta probantia it relied upon, did not establish that factum probandum
The third ground is that:
…The Second Respondent committed jurisdictional error when it failed to provide the Applicant with an adequate opportunity to address issues.
With regard to the first ground, the Applicant submits that the AAT took into account irrelevant considerations. It has particularised those irrelevant considerations as:
(a) The Applicant had only left Australia for about seven weeks since commencing his studies [Paragraph 17 of the decision];
(b) The Applicant had changed his study subject matter from Business, Marketing, Leadership and Management and had perhaps intended to complete his time in Australia after those business studies [Paragraph 25 (a) of the Decision]’
(c) The fact that the Applicant had set himself up in Australia with his wife and child and has the ability, with family support, to remain here, leading to the conclusion that the applicant has made a life for himself in Australia and that there was not a significant incentive for the Applicant to return to his home country [Paragraph 25(b) of the Decision];
(d) The fact that the Applicant did not present a project report which showed that it had been prepared by a professional person [Paragraph 25 (k) of the Decision].
The Applicant says that these considerations are irrelevant. The term “irrelevancy”, in these judicial review matters, means that the Applicant is contending that those four circumstances were matters to which the Tribunal was prohibited from considering when assessing the aspect of a genuine student residing in Australia temporarily. The argument proceeds upon the observations made by Logan J in the matter of Saini v the Minister for Immigration and Border Protection [2016] FCA 858 (“Saini”).
His Honour, Logan J said at paragraph 30 of that decision that:
…The Regulations do provide for other classes of visa which may be sought on-shore so as to permit the holder of a Student Visa to seek a visa which would permit a longer stay for further study or for employment. This means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of decision, later, to seek a visa that will lead other than to temporary residence, that intention is not consistent with an intention to “genuinely stay in Australia temporarily”…
In that case, the Applicant for a student visa had spoken of an intention that, after the particular study had concluded, she may decide to seek employment in Australia using the qualifications that had been obtained. Logan J’s comments are that, whilst that may be what an intention has been stated to be, the Tribunal must look at what the evidence actually reveals; in other words, is there something that would show that the intention is one other than to genuinely stay in Australia temporarily.
The Applicant also relies on a decision of Eros v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061 (“Eros”), which is a judgment of Allsop CJ. In that case, the Applicant was using a student visa to undertake studies that would keep her in the country whilst her daughter, who was also undertaking studies, was able to complete those studies. The Court there said that the Tribunal’s findings was consistent only with the finding that that Applicant intended to stay temporarily; that is, for the two years that it would take for the daughter to finish her studies. There was no finding that she would stay longer.
It was important, in the matter of Eros, to look quite conclusively at what it was that the Tribunal had found, and because the Tribunal had not found that the Applicant was not a genuine student, or that the finding was other than she was using the student visa as a device to stay here for another two years; that meant that the true finding was one of an intention to stay temporarily.
The submission advanced by the Applicant in this case, is that the Tribunal needed to be looking in a forwards direction; that is, looking at what it was that the Applicant was saying now as to their intention. The intention that was being stated here was that the Applicant was going to complete the studies and then, according to all of his plans, go back to India and start this business. Therefore, the matters that the Tribunal looked at were not relevant to assessing that claim.
The difference between the cases of Eros and Siani and the present matter are probably that which was noted in the matter of Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 217 (“Inderjit”) at paragraph 41, where the Court said:
A person’s intention is a question of fact for the decision-maker applying clause 500.212 based on all of the material before it. A person may generally wish to return home after a course of study and thus entertain a genuine intention to stay temporarily, even though at the same time remaining open to pursuing in the future what the person considers to be unlikely an opportunity if it presents itself to seek a permanent visa to do so. The decision in such cases ultimately depends on the decision-maker’s evaluation as to whether the applicant for the visa has satisfied him or her for the purposes of section 65 of the Act that the criteria for the visa proscribed by clause 500.212 have been satisfied, in which the Minister must grant the visa or otherwise, if not so satisfied, refuse it.

The Court there said that the Tribunal had stated it was not satisfied on the evidence that the wife unqualifiedly genuinely intended to stay in Australia temporarily. That factor was a matter that it took in terms of account as it was bound to do in coming to its conclusion that it was not satisfied she genuinely intended to stay in Australia temporarily.
Rather, as it has found in numerous places in its reasons, it considered she was using the student visa program to maintain residence in Australia until an opportunity presented itself for her and her husband to peruse a legitimate pathway to permanent residency. That finding was open to the Tribunal and the Court could not perceive any jurisdictional error in its reasons for that conclusion.
In this matter, as I have said when I recounted a precis of the Tribunal’s reasons, the Tribunal was not satisfied that the Applicant intends genuinely to stay in Australia temporarily. Moreover, the Tribunal found that this student visa was being used to maintain ongoing residence in Australia.
Those findings, and especially that sub-finding that the student visa was being use to maintain ongoing residence in Australia, is a different finding to that Saini and Eros, and one that is more consistent with the finding in Inderjit.
That finding was open on the evidence. The reason it was open on the evidence is that, pursuant to clause 500.212, the Tribunal is obliged to have regard to the Applicant’s circumstances, the Applicant’s immigration history, and any other relevant matter in looking at whether the Applicant intended genuinely to stay in Australia temporarily.
It is for that reason that it was not prohibited in looking at how long the periods were in which the Applicant had left Australia for in the six years that the Applicant had been here under the auspices of student visas.
It was not prohibited from looking at the changes in the vocations of the Applicant going from information technology to business marketing, leadership and management to automotive body repairs.
The Tribunal was not prohibited from looking at how the Applicant was living in Australia and the circumstances between him and his wife, and how it was that they were supporting themselves here in Australia.
The Tribunal was not prohibited from coming to a conclusion that the Applicant had made a life for himself in Australia, and that there was not a significant incentive for the Applicant to return to his home country. That was a conclusion that was open on the evidence.
Certainly, the Tribunal was not prohibited from considering the fact that the Applicant, in presenting a project report that he said was prepared by experts, did not, on the face of the document, show to the satisfaction of the Tribunal that such a project report was, in fact, prepared by a professional person.
Because the Tribunal was not prohibited from taking those considerations, ground 1 fails.
Ground 2 relies upon a submission that the Tribunal committed jurisdictional error when the “facta probantia” he relied on did not establish that “factum probandum”. In other words, the ground is that the ultimate conclusion, that the Tribunal was not satisfied that the Applicant was a genuine applicant for entry and stay as a student, was a conclusion that was not supported by the evidence.
One has to understand that the Tribunal came to a conclusion of non-satisfaction. The Tribunal did not find, as a fact, that the Applicant intended to stay in Australia permanently. The conclusion was that the Tribunal was not satisfied that the Applicant intended to stay in Australia temporarily. That is the ultimate conclusion. Part of the facts relied on was a conclusion that the Applicant was using the student visa to maintain ongoing residence in Australia.
The Applicant submitted that the AAT had undertaken its task with a somewhat confused approach. The Applicant claims that his circumstances were such that the circumstances needed to be looked at separately from the Applicant's immigration history. The submission is that what the Tribunal did was to mix the two matters together; therefore, asking itself the wrong question by failing to draw a distinction between the immigration history and the circumstances.
In my view, such an analysis is not a proper analysis. It is clear that there are three matters, and in the case of a minor, four matters to which the Tribunal must have regard. To look at each of those three matters, in effect seriatim, and use them as a checklist is a practice that is deprecated by Direction 69 of the Ministerial Directions. It is that all of those matters need to be looked at and have had regard to as to whether the decision maker is actually satisfied. When one looks at the 21 matters that the Tribunal has spoken of in paragraph 25, it is clear that what the Tribunal finds at paragraphs 26 and 27 is a finding that is actually open on the evidence. For those reasons ground 2 fails.
Ground 3 relies upon the comments that the Tribunal made in paragraphs 20 and 21, to which I have already referred when speaking of the Tribunal decision. The Applicant has, in effect, said that it was not proper, or it was unfair, for the Tribunal not to have granted the Applicant an adjournment.
The Applicant, at first, based his arguments upon common law concepts of procedural fairness and natural justice. When it was pointed out that s.357A of the Migration Act 1958 (“the Act”) provided an exhaustive statement of the natural justice provisions for that particular part, the Applicant said that what the Tribunal did was, in effect, to have acted under s.359AA of the Act.
In looking at what the Tribunal said, in paragraph 20:
…the applicant was invited to answer how the Tribunal can be assured that this is not just a recycled assignment that the applicant had to undertake in respect of his business studies. The applicant suggested that it was probably an honest mistake by the chattered accountant, that he did not do what most professionals would do, in that they would have some identifying marks for the work that they put out as to being the product of their skill and professional knowledge and intended to be relied upon by their clients.
The Applicant submits that the Tribunal was acting pursuant to s.359AA of the Act. Subsection 359AA(1)(a) states:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The Applicant submits that the Tribunal had said to the Applicant that the project report did not appear to have the hallmarks of being completed by professionals. Therefore, as it was something that was included in the 21 facts that the Tribunal noted in paragraph 25, it must have been part of a reason for affirming the decision that was under review. Having done that, the Tribunal needed to ensure that the Applicant understood why the information was relevant and to invite him to comment.
The Applicant submits that ss.359AA(1)(i) and (ii) were done, however, (iii) and (iv) were not done, in that the Tribunal did not advise the Applicant that they could seek additional time and did not consider, in effect, adjourning the review; and if they had considered adjourning the review, did not act reasonably in not acceding to that request.
Section 359A is the analogous section to 359AA of the Act, in that it speaks of the Tribunal giving the Applicant written notice of such information. Subsection 359A(3) of the Act states:
The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information under section 359AA.
It then talks of the section not applying to information that the Applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the Applicant to the Department.
It is questionable that such information is information that is covered under s.359, s.359A, or s.359AA of the Act in any event. What it is that the Tribunal has found is that the project report did not have the hallmarks of being a professional document. In its findings under paragraph 25 - the 21 aspects - the Tribunal noted this at circumstance K:
As to the current undertaking of studies by the applicant, the Tribunal notes the applicant’s stated desire to open a vehicle repair business. The applicant did present a project report related to that. However, given the quality of its production, in the sense of not being on a letterhead and not displaying any evidence of having been prepared by a professional person and having been given the opportunity to have done so, but not having provided that information and also, whilst the Tribunal does not make a particular finding on this, such a report may well be consistent with assignments in business studies. However, the fact that the applicant has not presented a project report which, on its face, shows it as being prepared by a professional person, who has been prepared to put his or her name to it, the Tribunal places little weight on that particular document.
It would seem to me that this aspect did not go to the reasoning of the Tribunal. The Tribunal noted it as a circumstance, and instead gave the document little weight. It was not information that would tend to affirm the decision under review. It is not, therefore, the sort of information that is covered by the s.359A or s.359AA of the Act. It was a document that the Applicant was providing to corroborate his future plans.
In the end, the Tribunal simply placed little weight on it. The ultimate decision of non-satisfaction was predicated upon a finding that the visa was being used to maintain ongoing residence in Australia. The fact of a project report, which was said to have been compiled by professionals yet did not have the hallmarks of such, is not a matter that was in the possession of the Tribunal that would go to affirming the decision. Therefore, I do not find that the s.359A or s.359AA of the Act are sections that are applicable to this matter.
Section 363 of the Act gives the Tribunal the power to adjourn the review from time to time. That power must be exercised reasonably. It seems to me that the alternate submission in relation to ground 3 of the Applicant is that it was unreasonable, that is, that it was not open to the Tribunal in the circumstances that it, itself, had created, not to have adjourned the review when asked to do so by the Applicant.
Again, a reading of paragraph 21 is required to understand this aspect. Paragraph 21 reads:
The applicant did request an adjournment to provide this information. He says that he has supporting documentation from the banks and information regarding the supply of equipment. However, in respect to that, the Tribunal considered that the applicant had been on notice since receiving the invitation to attend the hearing, dated 2 January 2020, wherein it is stated that the applicant is invited to provide all documents the applicant intends to rely on to establish that the applicant meets the criteria for the visa. Additionally, the applicant has had the service of a registered migration agent and in those circumstances, it was considered that the applicant had more than enough opportunity to provide the information. Indeed, he had availed himself of the opportunity to provide even further submissions today, so it was considered it was properly within his power to have done so and accordingly, the tribunal declined to allow that additional time.
Having regard to those circumstances, it cannot be said that the Tribunal exercised its power, or refused to exercise its power, to adjourn the proceedings unreasonably. It cannot be said that it was simply not open in the circumstances of this case to not adjourn the matter. It would seem to me that it was open for those reasons enunciated by the Tribunal.
That is not to say that a differently constituted Tribunal, or, if I had been the decision-maker, that I would necessarily have done what the Tribunal did. That is not the test. The test is not for me in this Court, in reviewing the decision, to put myself in the shoes of the decision-maker. It is for me to look at whether such a decision was open on the evidence, and in the circumstances. Because such a course of action was open to the Tribunal, it was not unreasonable.
Therefore there has been no jurisdictional error shown. Ground 3 then fails.
I dismiss the application and order costs in the sum of $5,000.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 September 2020.