Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1217
•14 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1217
File number: MLG 2983 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 14 November 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s student visa – whether the Tribunal failed to conduct a proper review or misapplied the law – whether the Tribunal failed to consider relevant circumstances – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to put information to the applicant for comment – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 48, 116, 140, 189, 198, 348, 349, 353, 359AA, 360, 363, 476, 477 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 11 November 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J McDonald Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2983 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GURMEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
14 NOVEMBER 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 held a Student (Temporary) (Class TU) (subclass 500) visa (student visa) which was granted to him on the basis that he was a member of the same family unit as his then wife, who was to study in Australia. After receiving information that the applicant and his wife had separated, a delegate of the Minister cancelled the applicant’s student visa under s 116 of the Migration Act 1958 (Cth)[1] (Migration Act). The applicant sought merits review of the delegate’s decision and the Administrative Appeals Tribunal (Tribunal) affirmed that decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act.
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant relies on an application that raises 13 grounds. There is limited meaningful detail in the grounds, but they broadly assert that the Tribunal did not properly apply the law, failed to consider all relevant circumstances, denied the applicant procedural fairness and relied on hearsay evidence without affording the applicant an opportunity to comment.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
RELEVANT FACTUAL BACKGROUND
The applicant was granted the student visa on 5 November 2018 as a secondary applicant who was a member of the same family unit as his wife.
On or about 25 February 2019 the Minister’s Department received information to the effect that the applicant and his wife had separated in November 2018.
On 3 April 2019 the Minister’s Department sent to the applicant a notice of intention to consider cancellation under s 116 of the Migration Act (NOICC). The NOICC advised the applicant that the decision to grant him a student visa was based wholly on the fact that he was a member of the family unit of the primary visa holder, his wife, and that as he was no longer in an ongoing relationship with the primary visa holder, he was no longer a member of her family unit and therefore his visa was liable to be cancelled under s 116(1)(a) of the Migration Act. The applicant was invited to comment in writing on why he believed the ground for cancellation did or did not exist and why he believed his visa should not be cancelled. The applicant was also invited to provide any supporting evidence. The response was to be provided within five working days after the applicant was taken to have received the NOICC. The applicant did not respond to the NOICC.
On 6 May 2019 a delegate of the Minister cancelled the applicant’s student visa and the applicant applied to the Tribunal for merits review of the delegate’s decision on 9 May 2019.
On 26 July 2019 the Tribunal invited the applicant to attend a hearing on 13 August 2019. The invitation requested that the applicant provide to the Tribunal all documents that he intended to rely on in support of his case.
The applicant attended the hearing convened by the Tribunal on 13 August 2019 and gave evidence and presented arguments relating to the issues in his case.
On 21 August 2019 the Tribunal affirmed the decision to cancel the applicant’s student visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether a ground for cancellation pursuant to s 116(1) of the Migration Act was made out and, if so, whether the applicant’s student visa should be cancelled. The Tribunal further identified that the applicant’s student visa may be cancelled pursuant to s 116(1)(a) of the Migration Act if the Tribunal was satisfied that ‘the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists’.
Whether a ground of cancellation existed
The Tribunal noted that the applicant’s student visa was granted on the basis that he was, at the time of the grant, a ‘member of the family unit of a person (the primary person) who holds a student visa, having satisfied the primary criteria for that visa’. The Tribunal recorded that a ‘member of the family unit’ includes a spouse or de facto partner, and the applicant and the primary person had produced a marriage certificate which satisfied the regulatory criteria for the applicant to be granted his visa.
The Tribunal recorded that the applicant admitted at the Tribunal hearing that he and the primary person had separated and had not been living together since November 2018, that there was no prospect of reconciliation and that the applicant would be taking steps to divorce in the near future. The Tribunal was satisfied that the ground for cancellation under s 116(1)(a) was established.
Whether the applicant’s student visa should be cancelled
The Tribunal then considered whether the student visa should be cancelled, noting that there were no matters specified by legislation that must be considered in the exercise of its discretion but that it should consider the circumstances of the case, including any matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal decided that the applicant’s visa should be cancelled having regard to the following considerations:
(a)The circumstances giving rise to the ground for cancellation: The Tribunal did not consider it appropriate to make any particular finding as to the reason for the breakdown of the marriage, noting that the applicant disputed a significant portion of the assertions made in the written statement provided by his wife to the Department. The Tribunal considered it was clear that both the applicant and his wife considered that the relationship was over, and did not consider it necessary to attribute fault to either party. The Tribunal did not consider the circumstances of the relationship breakdown to be a significant consideration for the purposes of considering whether to exercise the discretion to cancel the applicant’s student visa.
(b)The purpose of the applicant’s stay in Australia: Noting that the relationship between the applicant and his wife had ended after the student visa had been granted, the Tribunal considered that there was no legitimate basis for the applicant to remain in Australia, at least insofar as his student visa was concerned, and no legitimate purpose would be served by allowing the applicant’s student visa to remain valid.
(c)The extent of the applicant’s compliance with visa conditions: The Tribunal found that the applicant had complied with his visa conditions while he had remained in Australia and that there was nothing adverse against him in that regard.
(d)Hardship: The Tribunal accepted that it would be difficult for the applicant if he were forced to return to India, noting that he had family in Australia who were long-term residents and citizens and that the applicant had expressed a preference to remain in Australia. The Tribunal, however, also noted that the applicant is young and still has some family and a social network in India and would likely be able to adapt to life there.
(e)The applicant’s behaviour towards the Department: The Tribunal found that there was no adverse evidence before it in relation to the applicant’s past and present behaviour towards the Department.
(f)Other visa holders: The Tribunal found that there did not appear to be any consequential cancellations under s 140 of the Migration Act that would follow the cancellation of the applicant’s visa.
(g)Legal consequences: The Tribunal noted that if the applicant’s student visa was cancelled, the applicant would become an unlawful non-citizen and liable to detention under s 189 of the Migration Act and removal under s 198 of the Migration Act if he did not voluntarily depart Australia. The Tribunal further noted that a bar under s 48 of the Migration Act would be imposed, limiting the applicant’s options to apply for further visas from within Australia, and that the applicant would be subject to a three year exclusion period, where he would not be eligible to have any temporary visa application approved if he applied for a visa that required Public Interest Criterion 4013 to be met. The Tribunal found that these were the intended consequences of visa cancellation under s 116 of the Migration Act.
(h)Australia’s international obligations: The Tribunal noted that Australia’s international obligations did not appear to be engaged by the circumstances of this case.
The Tribunal therefore affirmed the delegate’s decision.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 10 September 2019. The application was made within 35 days of the date the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following 13 grounds (reproduced without alteration):
1.The member errer in not assessing the application of the applicant according to the law and failed to consider the review application as an individual.
2.Member primarily considered the clause s 116(1)(a) and failed to consider the other clauses that the applicant meet.
3.I have not yet divorced and my ongoing relationship with the spouse and probability of patching up was not considered.
4.Member failed to consider that the Department of immigration and border protection did not accord to the applicant procedural fairness and natural justice.
5.The decision of the member is affected by the jurisdiction error and was not determined according to law as the circumstances at the time of application was not considered and this must be overlooked again according to law.
6. No opportunity was not given to me for applying another visa.
7.My circumstances were not considered and the effects of visa cancellation on me and my life were not considered before making the decision.
8.The Member erred in dismissing the applicant’s review application by relying on hearsay evidences obtained by department of immigration which was not tested and put to the applicant.
9.Member also paid no heed towards my circumstances at the time of application and only considered the current circumstances and this depicts the error in the decision.
10.The Member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group.
11.The member erred in coming to the conclusion and no opportunity was given to provide the evidences.
12.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
13.The appellant’s application clearly raises an arguable case.
Pursuant to an Order made by a Registrar of the Court on 7 August 2023, the applicant was to file and serve written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence upon which he seeks to rely 28 days before the final hearing. The applicant did not file any documents in accordance with this Order. The Minister filed written submissions ahead of the hearing as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)an affidavit of the applicant filed with his originating application and annexing a copy of the Tribunal decision;
(b)a court book filed on behalf of the Minister on 15 August 2023; and
(c)an affidavit of Joseph John McDonald filed on behalf of the Minister on 6 November 2024 confirming that documents filed by the Minister had been served on the applicant.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The hearing before the Court
At the hearing, I explained to the applicant that the Court does not consider for itself whether his student visa should be cancelled and that the Court does not have the power to grant him any visa. I further explained that the role of the Court is to consider whether the Tribunal made a jurisdictional error. I took the applicant to the grounds in his application and indicated that there was no meaningful detail in the grounds to indicate why he believes the Tribunal made the errors alleged. I indicated to the applicant that he would have the opportunity to provide additional detail about the grounds in his oral submissions to the Court.
In the course of the applicant’s oral submissions, I expressly referred the applicant to each of his 13 grounds and invited him to provide more information about each of the grounds. The applicant opted not to make submissions in relation to most of the grounds, and to the extent that he did make submissions, his submissions were to the effect that if he was given an opportunity, he could apply for another visa and undertake study and that he would like a chance to apply for another visa. I then reiterated my explanations to the applicant about the Court’s lack of power to consider whether his student visa should have been cancelled or otherwise grant him a visa and, in the light of his submissions to the Court, I also advised the applicant that the Court does not have the power to allow him to apply for another visa. I then afforded the applicant a further opportunity to make any submissions about why he believes the Tribunal made a jurisdictional error, but he declined the opportunity to say anything further.
Counsel for the Minister made oral submissions that were consistent with the Minister’s written submissions. I largely accept the Minister’s submissions and, where relevant, refer to them in the consideration of the grounds below. I also note that the Minister has addressed the applicant’s grounds thematically and I have adopted in this judgment the same thematic approach as is set out in the Minister’s written submissions.
Grounds 1 and 10: alleged failure to conduct a proper review of the delegate’s decision
By ground 1 the applicant alleged that the Tribunal failed to assess the application according to law and failed to consider the applicant as an individual. By ground 10 the applicant alleged that the Tribunal failed to consider that each case has its own facts and merits and ought to be considered separately and not as a group.
The Minister submitted that these grounds are unparticularised and that it is unclear how the Tribunal failed in its task to review the decision in accordance with s 348 of the Migration Act, which requires the Tribunal to review a decision the subject of an application properly made to the Tribunal for review of a Part 5-reviewable decision. The Minister submitted that the Tribunal’s reasoning neither refers to the applicant as a member of a group nor does it refer to any other application and, in any event, a breach of s 348 of the Migration Act does not, in and of itself, amount to jurisdictional error.
I accept the Minister’s submission that the Tribunal did not refer to the applicant as a member of a group or refer to any other application. The Tribunal’s reasons focus on the applicant’s personal circumstances and reflect the Tribunal’s careful consideration of the applicant’s circumstances both in relation to whether a ground for cancellation existed and in the consideration of the exercise of the discretion to cancel the applicant’s student visa. In conducting the review, the Tribunal was required to consider the material before it and reach the correct or preferable decision: see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [93]. The applicant has not established that the Tribunal failed to do that in the present case.
Grounds 1 and 10 are not established.
Grounds 1, 2, 5 and 9: alleged misapplication of law
Grounds 1, 2, 5 and 9 all assert that the Tribunal misapplied the law in some way. Ground 1 contains a general assertion that the Tribunal did not assess the application according to law. Ground 2 asserts that the Tribunal erred by considering only s 116(1)(a) of the Migration Act and not the other sections that the applicant met. Ground 5 asserts that the Tribunal made a jurisdictional error and did not determine the application according to law by not considering the facts at the time of application. Ground 9 asserts that the Tribunal did not consider the applicant’s circumstances at the time of the application and only considered his current circumstances.
I accept the Minister’s characterisation of the Tribunal decision given in response to these grounds, namely that:
(a)the Tribunal properly noted that:
(i)s 116(1)(a) of the Migration Act provides that a student visa may be cancelled on the basis that the Tribunal is satisfied that the decision to grant the visa was based wholly or partly on a particular fact or circumstance that is no longer the case or that no longer exists; and
(ii)the applicant’s student visa was granted on 5 November 2018 on the basis that he was, on that date, a member of the family unit of a person who holds a student visa, having satisfied that primary criteria for that visa; and
(b)having satisfied itself that a cancellation ground existed, the Tribunal considered it was appropriate in its discretion to cancel the visa, having regard to PAM3 and the applicant’s circumstances.
This approach to its decision-making task reflects that the Tribunal properly understood the law that it was required to apply and does not suggest that the Tribunal misapplied that law in any way.
In relation to the applicant’s assertion that the Tribunal ought to have considered other clauses or sections that the applicant may meet, I accept the Minister’s submission that the Tribunal was not obligated to consider other clauses the applicant may have met. To enliven the discretion to cancel the applicant’s visa, the Tribunal only needed to be satisfied that one of the grounds in s 116(1) of the Migration Act was established. It had no obligation to consider whether any further ground for cancellation existed. Having found that the applicant’s student visa was granted on the basis that the applicant was a member of the family unit of his wife, and that fact or circumstance no longer existed, the Tribunal was correct to identify that a ground for cancellation existed and to then proceed to consider the exercise of its discretion. Likewise, the Tribunal was not under any obligation to consider the other criteria that the applicant met at the time the visa was granted.
To the extent that the applicant asserts that the Tribunal erred by considering his current circumstances, rather than those that existed at the time of the visa application, I accept the Minister’s submission in response to the effect that it is axiomatic to the power contained in s 116(1)(a) of the Migration Act that the power is enlivened by reference to the current or prevailing circumstances as those circumstances must differ from the circumstances that existed at the time of the application. That is, the discretion to cancel the applicant’s student visa was enlivened in this case precisely because his circumstances were different to his circumstances at the time of the visa grant. The Tribunal considered the applicant’s circumstances at the time of the visa grant to the extent that they were relevant to the application, namely, in demonstrating that a particular fact existed at the time of the visa grant and was a basis for the grant of the visa, in circumstances where that particular fact no longer exists. I accept the Minister’s submission that it is the current circumstances that are relevant to the exercise of the cancellation power and it was appropriate for the Tribunal to consider the applicant’s current circumstances both in finding that a ground for cancellation existed and in exercising the discretion.
Grounds 1, 2, 5 and 9 do not establish jurisdictional error.
Grounds 3, 4 and 7: alleged failure to take into account relevant considerations
By grounds 3, 4 and 7, the applicant alleges that the Tribunal failed to take into account relevant considerations, namely:
(a)that he was not yet divorced and the probability of ‘patching up’ the relationship;
(b)that the Minister’s Department did not afford the applicant procedural fairness; and
(c)the applicant’s circumstances and the effect of the visa cancellation on him and his life.
In relation to the applicant not yet being divorced and the probability of ‘patching up’ the relationship, the Tribunal recorded at [10] and [14] of its reasons:
10.At the hearing before the Tribunal, the Applicant admitted that he and [his wife] had separated and had not been living together since November 2018. Upon further inquiry by the Tribunal, the Applicant stated that there is no prospect of reconciliation. The marriage between the Applicant and [his wife] is over. The Applicant indicated that he will be taking steps to divorce in the near future.
…
14. … What is clear, however, is that both the Applicant and [his wife] agree that the marriage is over.
I accept the Minister’s submissions that, in the light of these paragraphs, it cannot be said that the Tribunal failed to consider the applicant’s marriage, the prospects of patching it up or the applicant’s evidence that he was not yet divorced. It was open to the Tribunal to find that the relationship was over on the basis of the evidence of the applicant and his wife, including the applicant’s evidence that there was no prospect of reconciliation and that the applicant would be taking steps to divorce in the near future.
In relation to the assertion that the Tribunal failed to take into account that the Department denied the applicant procedural fairness, the applicant has not identified why he believes the Department denied him procedural fairness or how that would affect the Tribunal decision. The review conducted by the Tribunal is a de novo review in which the Tribunal assesses the merits of the applicant’s case for itself. The Tribunal was not required to determine whether there was any legal or jurisdictional error in the delegate’s decision. It is therefore difficult to ascertain why the Tribunal decision could be affected by jurisdictional error on account of the applicant’s assertion that the Department failed to afford him procedural fairness. There is no suggestion by the applicant in the present case that the NOICC was not properly issued and I accept the Minister’s submission that the Tribunal was not otherwise required to address whether the delegate afforded the applicant procedural fairness.
The Tribunal had regard to the impact of the effect of the visa application on the applicant at [20] and [21] of its reasons, where it said:
20.The Tribunal accepts that it would be difficult for him were he forced to return to India. He stated that he has family here, who are long-term residents and Australian citizens. He stated that he would prefer to remain in Australia on a longer-term basis. He would rather not have to return to India.
21.While the Tribunal has taken this potential hardship into account, the Tribunal notes that the Applicant is still young and has some family and a social network back in India. Upon his return to India, he is likely to adapt to life back there.
The applicant has otherwise not identified any specific circumstance of his that he raised with the Tribunal and that he believes the Tribunal did not consider. The Court is not able to identify from the evidence before it any circumstance raised by the applicant that the Tribunal failed to consider.
The applicant has not established that the Tribunal failed to have regard to any relevant consideration and therefore grounds 3, 4 and 7 must fail.
Grounds 6, 11 and 12: alleged failure to afford the applicant procedural fairness
By grounds 6, 11 and 12, the applicant alleges that the Tribunal denied him an opportunity to:
(a)apply for another visa;
(b)provide evidence; and
(c)provide extra time.
I accept the Minister’s submission that the Tribunal does not have the power or jurisdiction to allow the applicant to apply for another visa. The Tribunal was required to ‘review the decision’: s 348(1) of the Migration Act. The Tribunal’s power on reviewing a decision is ‘restricted to a consideration of whether or not that decision was the ‘correct or preferable’ decision and nothing more’: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [37]. In reviewing the decision, the Tribunal may affirm the decision, vary the decision, in some cases, remit the matter for reconsideration in accordance with recommendations or directions, set aside the decision and substitute a new decision, or dismiss the application if the applicant fails to appear: see s 349(2) of the Migration Act. None of these powers allow the Tribunal to permit an applicant to apply for a new visa and accordingly the Tribunal did not have any procedural fairness obligation to provide the applicant with an opportunity to apply for another visa. There is therefore no jurisdictional error established by the applicant’s assertion that the Tribunal did not give him an opportunity to apply for another visa.
I also accept the Minister’s submission that the applicant’s assertion that he was not afforded an opportunity to provide evidence is not factually accurate, having regard to the evidence in the court book. When the matter was before the Department, the applicant was invited to respond to the NOICC and provide any supporting evidence. He did not do so. Appropriately, the Tribunal also gave the applicant opportunities to provide evidence. As it was required to do under s 360 of the Migration Act, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments. The invitation to attend a hearing sent to the applicant on 26 July 2019 requested that the applicant provide all documents he intended to rely on within seven days and indicated that ‘any documents or written arguments’ should be provided to the Tribunal in English or accompanied by a translation. The applicant then attended the hearing on 13 August 2019 and gave oral evidence. There is no suggestion that the invitation to attend a hearing was not a real and meaningful one: see Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; [2000] FCA 1759 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [33]. The applicant was also afforded an opportunity to comment on information provided by his wife following the process set out in s 359AA of the Migration Act. That is addressed further below in the context of ground 8. The applicant’s assertion that the Tribunal did not afford him an opportunity to provide evidence fails at a factual level.
There is no evidence before the Court to suggest that the applicant sought any further opportunity to provide any further evidence or submissions to the Tribunal following the hearing. I accept the Minister’s submission that the applicant’s assertion that the Tribunal erred by not providing him additional time to provide evidence after the hearing is not established in circumstances where there is no evidence to suggest that the applicant requested such an opportunity. In setting out the process that it followed under s 359AA of the Migration Act, the Tribunal recorded at [13] of its reasons that it advised the applicant he may seek additional time to respond to or comment on the information put to him, but that the applicant did not request any additional time and chose to respond immediately at the hearing. The Tribunal otherwise had a discretion conferred by s 363(1)(b) to adjourn the review from time to time and was required to act reasonably in the exercise of that discretion: Li at [63]. Given the absence of any request for additional time, the Tribunal did not deny the applicant procedural fairness or act unreasonably in proceeding to deliver its decision, without requesting further evidence, one week after the hearing.
Grounds 6, 11 and 12 are not established.
Ground 8: alleged reliance on hearsay evidence and failure to put information to the applicant
By ground 8, the applicant alleges that the Tribunal erred by relying on hearsay evidence obtained by the Department that was not tested and put to the applicant.
It is not clear what evidence was before the Tribunal that the applicant considers to be hearsay. As far as I can identify from the documents in evidence before the Court, the only evidence before the Tribunal addressing issues relevant to the Tribunal’s decision was the applicant’s own oral evidence and the evidence provided by his wife to the Department. I infer that the ground relates to the evidence provided by the applicant’s wife. I do not understand why the applicant considers that evidence to be hearsay evidence, but in any event, it is not necessary to determine whether any part of the evidence might be hearsay.
That is because, as identified in the Minister’s submissions, the Tribunal is not bound by the rules of evidence: s 353(a) of the Migration Act. Therefore, evidence that might be considered in a court to be hearsay evidence is not inadmissible in a Tribunal proceeding.
In relation to the applicant’s assertion that the information was not tested or put to him, I observe that Tribunal recorded at [13] and [14] of its reasons:
13.The circumstances relating to the breakdown of the Applicant’s marriage with [his wife] were outlined in a written statement provided by [his wife] to the Department. In accordance with the requirements under s 359AA of the Migration Act 1958, the Tribunal orally communicated [the wife’s] written statement to the Applicant during the hearing. The Tribunal was satisfied that the Applicant understood why this information was relevant to the review. The Tribunal explained to the Applicant that, if the Tribunal were to rely on the information, it may lead to the Tribunal affirming the decision to cancel his visa. The Tribunal invited the applicant to comment on or respond to the information. The Tribunal advised the Applicant that he may seek additional time for this purpose. He did not request additional time and chose to respond at the hearing immediately.
14.The applicant disputed a significant portion of the assertions contained in [his wife’s] statement. In these circumstances, the Tribunal does not consider it appropriate to make any particular findings as to the reason for the breakdown of the marriage. What is clear, however, is that both the Applicant and [his wife] agree that the marriage is over.
While it is true that the applicant’s wife’s evidence was not tested by way of any form of questioning of her by the Tribunal, the applicant was invited to comment on the information. The Tribunal followed the process set out in s 359AA of the Migration Act, which allowed the Tribunal to orally give to the applicant clear particulars of any information that the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision. The Tribunal was required to:
(a)ensure, as far as reasonably practicable, that the applicant understood why the information was relevant to the review and the consequences of the Tribunal relying on it;
(b)orally invite the applicant to comment on or respond to the information; and
(c)advise the applicant that he may seek additional time to comment on or respond to the information and adjourn the review if the applicant requested additional time and the Tribunal considered that the applicant reasonably needed additional time to respond.
The applicant has not specifically submitted that the Tribunal did not comply with the process in s 359AA of the Migration Act and it is not apparent from the evidence before the Court that the Tribunal failed to properly follow the process.
The Tribunal relied on the information provided by the applicant’s wife for the purposes of finding that the applicant and his wife had separated, which was consistent with the applicant’s evidence. The Tribunal did not consider it necessary to make findings in relation to any aspect of the applicant’s wife’s evidence that the applicant disputed.
No jurisdictional error is evident from the Tribunal’s consideration of the evidence provided by the applicant’s wife and no jurisdictional error is established by the applicant’s assertions that the Tribunal relied on hearsay evidence or failed to put information to him. Ground 8 is not established.
Ground 13
Ground 13 is a bare assertion that the application raises a clearly arguable case. It does not assert any jurisdictional error in the Tribunal decision, and the applicant had a right to seek judicial review and did not need to demonstrate that he had a reasonably arguable case in the way that he might if he required an extension of time or leave to appeal. No jurisdictional error is established by ground 13.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 14 November 2024
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