Singh v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 908
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 908
File number(s): ADG 143 of 2021 Judgment of: JUDGE GERRARD Date of judgment: 20 September 2024 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – where applicant failed to provide evidence of English language proficiency –brevity of hearing – inappropriate to infer proceedings brought for ulterior purpose – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) cl 500.213, 500.213(1), 500.213(2)
Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (Cth) cll 6, 7
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZNVW[2010] FCAFC 41, (2010) 183 FCR 575
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, (2015) 238 FCR 158
Pabbi v Minister for Home Affairs [2019] FCCA 1750
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Virdi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 282
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submission/s: 28 May 2024 Date of hearing: 2 September 2024 Place: Adelaide Applicants: First and second applicants appear in person, with the assistance of a Punjabi interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 143 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MEHARBAN SINGH
First Applicant
GURMEET KAUR
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GERRARD:
BACKGROUND
The applicants are citizens of India. They first arrived in Australia on 11 February 2019 for approximately three months, and then returned on 11 August 2019 as the holders of visitor visas (Court Book (CB) 14, 16).
On 1 November 2019, the first applicant (the applicant) applied for a Student (Class TU) (Subclass 500) visa (the visa) (CB 1-22). In that visa application, the applicant included the second applicant as a member of his family unit.
On 4 March 2020, a delegate of the first respondent (the Minister) wrote to the applicant requesting that he provide evidence of his English language ability within 28 days (CB 36-41).
It appears that the delegate did not, however, await the expiration of the 28-day period and, two days later on 6 March 2020, the delegate refused to grant the applicants the visas. The delegate was not satisfied that the first applicant had met the English language proficiency criterion in cl 500.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) (CB 46-53).
On 19 March 2020, the applicants applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision (CB 54-55).
On 16 April 2021, the applicants were invited to attend a hearing scheduled for 4 May 2021 (CB 60-64). In that invitation, the first applicant was asked to provide the following information at least 7 days before the hearing date:
Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument.
According to the Tribunal, “immediately before the hearing” the applicants’ registered migration agent provided a short statement to the Tribunal (CB 80 at [10]). This statement was accompanied by the results of an English placement test from Durban International College dated 20 April 2021 confirming a score of 253/310, confirmations of enrolment in the Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Design and Diploma of Automotive Technology, and a document checklist tool (CB 65-72). The submission from the representative stated:
According to clause 500.213 if required to do so by the Minister, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument.
Current circumstances:
Currently, applicant is enrolled in Certificate III, IV and Diploma of Automotive at Durban International College and according to regular evidentiary requirements; English language proficiency is not falling under mandatory requirements. Therefore, applicant not required to provide English language proficiency. (Documents evidence checklist attached).
On 4 May 2021, the applicant attended the hearing. He was assisted in that hearing by a Punjabi interpreter. The Tribunal hearing commenced at 10:12 am and closed at 10:25 am. Thus, the hearing only lasted for 13 minutes (CB 73-75). Later that day, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant the visa (CB 79-83).
On 17 May 2021, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 5 pages long and spans 17 paragraphs (CB 79-83). The last two pages include extracts from the Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (the Instrument). The ‘substantive’ part of the decision occupies less than two pages. Given the conciseness of the Tribunal decision, it is beneficial to set out those substantive paragraphs in full (CB 80-81, [6]-[16]).
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant has sufficient English language proficiency.
English language proficiency (cl.500.213)
7. To meet cl.500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl.500.213(1). This requirement does not apply to an applicant within a class specified in an instrument: cl.500.213(2). IMMI 18/015, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
8. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
9. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence provided at hearing.
10. In particular the Tribunal notes that the applicant's representative provided a statement to the Tribunal immediately before the hearing stating that the applicant is currently enrolled in automotive courses and that therefore English language proficiency does not fall under "mandatory requirements". The Tribunal also notes that the applicant provided the results of an English placement test from the Durban International College dated 20 April 2021 with a score of 253/310.
11. At hearing the Tribunal had a discussion with the applicant regarding his application noting that the delegate had refused the applicant's application for the grant of a student visa because the applicant did not provide evidence of English language proficiency in accordance with the relevant instrument. The Tribunal had a discussion with the applicant regarding the requirements of the instrument and in particular the types of tests that are required to demonstrate English language proficiency. The Tribunal noted to the applicant that the assertion made that he did not need to demonstrate English language proficiency because he was currently enrolled was not accurate and nor was the test result that he provided from his current enrolment with Durban College a relevant test result for the purposes of the Act.
12. The Tribunal asked the applicant if he would like to provide any further evidence or make any other statements in regard to this matter as it was his application and his opportunity to do so. The applicant stated that he was currently enrolled to study here and that his recent college test does demonstrate his English language proficiency, and that he wanted to complete his studies before returning home.
13. The Tribunal has considered the applicant's evidence carefully and finds that the applicant has not been able to provide the appropriate evidence as required under the regulations. The Tribunal finds that there is no evidence before it to demonstrate that the applicant has met the required level of English language proficiency.
14. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.
15. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
16. In regard to the secondary applicant the Tribunal finds that as the primary applicant does not meet the criteria for the grant of the visa that the secondary applicant also does not meet the criteria for the grant of the visa.
The Tribunal affirmed the delegate’s decision (at [17]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicants on 17 May 2021 contains two grounds of review as follows (without alteration):
1.Administrative appeals Tribunal made Jurisdictional Error by not considering that applicant is enrolled in Certificate III, IV and Diploma of Automotive at Durban International College and according to regular evidentiary requirements; English language proficiency is not falling under mandatory requirements. Therefore, applicant not required to provide English language proficiency.
2.Administrative appeals Tribunal made Jurisdictional Error by not considering clause 500.213 if required to do so by the Minister, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument.
The applicants filed an affidavit with that judicial review application on 17 May 2021. The affidavit annexed a copy of the Tribunal’s decision, pages from the first and second applicant’s passport, and the delegate’s decision.
The applicants appeared before the Court on 2 September 2024 without legal representation but with the assistance of a Punjabi interpreter. Both the first and second applicants were invited to address the Court. The Court confirmed with the applicants that they had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 17 May 2021 (the affidavit being taken as read and in evidence at the hearing on 2 September 2024), a Court Book numbering 83 pages (marked as Exhibit 1), and written submissions filed on behalf of the Minister on 28 May 2024.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 2 September 2024, the applicants were invited to tell the Court what they believed to be wrong with the Tribunal’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) and could only consider whether or not the Tribunal decision revealed jurisdictional error. The Court explained that, in migration decisions such as the decision being challenged by the applicants, common categories of alleged jurisdictional error included:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 198) (Craig);
(b)where the decision-maker ignores relevant material (Craig at 198);
(c)where the decision-maker relies on irrelevant material (Craig at 198);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]).
However, it was also explained to the applicants that this was not an exhaustive list, and they should attempt to articulate why they said the Tribunal had fallen into error.
Against this background, the first applicant initially told the Court that when they first submitted their application, they were told that they did not need to submit an International English Language Testing System Test. Following that, the applicants were not granted work rights and, without those work rights, it was impossible for the first applicant to study. In reply to the Minister’s submissions, the first applicant repeated his belief that at the time he submitted his application for the visa, he did not need to submit evidence of English language proficiency. The second applicant indicated that she also wished to study and that she has now completed the English language requirement.
RELEVANT LEGISLATIVE PROVISIONS
The issue for determination before the Tribunal was whether the first applicant had met cl 500.213 in Schedule 2 of the Regulations which provides:
(1)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).
Note: For arrangements for the use of a computer program, see section 495A of the Act.
(2)Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).
(3)The Minister may, by legislative instrument, specify:
(a) requirements for the purposes of subclause (1); or
(b) a class of applicants to which subclause (1) does not apply.
The applicable legislative instrument at the time of the Tribunal’s decision for the purposes of cl 500.213(1) was the Instrument, which relevantly provided:
6 Primary Criteria
(1) For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:
(a) the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1;
(b) the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and
(c) the applicant must have completed the test within the following period:
(i) if evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa - 2 years immediately before the date of the visa application; or
(ii) if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.
(2) For the purpose of subclause 500.213(2) of Schedule 2 to the Regulations, subclause 500.213(1) of Schedule 2 to the Regulations does not apply to the following classes of applicants:
(a) an applicant who is a citizen of, and who holds a valid passport issued by:
(i) the United Kingdom;
(ii) the United States of America;
(iii) Canada;
(iv) New Zealand; or
(v) the Republic of Ireland; or
(b) an applicant who is enrolled in a principal course of study that is:
(i) registered to be delivered in a language other than English;
(ii) a registered ELICOS course, as defined in regulation 1.03 of the Regulations;
(iii) a registered school course; or
(iv) a registered post-graduate research course; or
(c) an applicant who is a:
(i) Foreign Affairs student;
(ii) Defence Student; or
(iii) Secondary exchange student; or
(d) an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:
(i) the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or
(ii) a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or
(e) an applicant who has successfully completed a minimum of 5 years of study in English undertaken in one or more of the following countries;
(i) Australia;
(ii) Canada;
(iii) New Zealand;
(iv) South Africa;
(v) the Republic of Ireland;
(vi) the United Kingdom;
(vii) the United States of America.
7 Application of this instrument
This instrument applies to an application for a Subclass 500 (Student) visa made on or after the commencement of this instrument.
CONSIDERATION
As outlined above, there are two grounds of review advanced in these proceedings. Noting that the applicants were unrepresented in this matter, the Court has endeavoured to interpret the applicants’ grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392, (2015) 238 FCR 158).
Ground One
Through ground one, the applicants repeat the submission advanced by their registered migration agent before the Tribunal. That is, the applicants assert that the courses the first applicant was enrolled in did not require him to satisfy the English language proficiency requirement in cl 500.213(1).
As set out above, the English language proficiency requirements which apply to an application for a Subclass 500 (Student) visa are set out in the Instrument. That Instrument specifies that the first applicant could have met those requirements by either providing an English language test which met the requirements set out in cl 6(1) of the Instrument or by providing evidence that the first applicant belonged to one of the classes of applicants identified in cl 6(2).
It was common ground between the parties that the first applicant had not provided evidence of an English language test which met the requirements of cl 6(1) of the Instrument. As correctly submitted by the Minister, there was also no evidence before the Tribunal that the applicant fell into any of the classes set out in cl 6(2). On that basis, the Minister submitted that the Tribunal made the only finding legally open to it, namely, that there was no evidence before it to demonstrate that the applicant had met the English language proficiency requirements and he therefore did not meet cl 500.213 in Schedule 2 of the Regulations.
The Court agrees with the Minister’s submissions in this respect. The applicants’ submission, both before the Tribunal and in this Court, that the first applicant was exempt from the English language proficiency requirement is misconceived. Subclause 500.213(1) makes it abundantly clear that applicants for student visas are required to provide evidence that they have a level of English language proficiency specified in the relevant instrument. The Instrument identifies what those specified requirements are and it is uncontroversial that the first applicant did not, and could not, provide the Tribunal with the requisite evidence. Subclause 500.213(2) makes it equally clear that only those applicants falling within a class of applicants specified by the relevant instrument are exempt from providing such evidence. The first applicant did not fall within the classes set out in the Instrument.
The Tribunal made the only decision which was open to it on the evidence.
No jurisdictional error arises in respect of ground one.
Ground two
Ground two of the application is somewhat confused. Through this ground, the applicants appear to assert that the Tribunal failed to consider cl 500.213. However, as outlined above, that is precisely what the Tribunal did.
To the extent that this ground could be construed as arguing that the Tribunal erred in its understanding of the operation of cl 500.213, again, that must fail for the reasons outlined above. In the Court’s view, the Tribunal clearly understood the operation of cl 500.213 and the Instrument, as well as their applicability to the first applicant’s circumstances. As stated above, the Tribunal made the only decision which was open on the evidence.
No jurisdictional error arises in respect of ground two.
Brevity of hearing
As noted above, the Tribunal hearing in this matter was only 13 minutes long. Furthermore, the Tribunal hearing took place by telephone and required the use of an interpreter which, in the Court’s view, must have slowed the proceedings down. Having regard to that, the Court was concerned as to whether the applicant may have been denied procedural fairness as a consequence of the brevity of the hearing.
In Pabbi v Minister for Home Affairs [2019] FCCA 1750 (Pabbi), Judge Kendall considered whether a Tribunal hearing which lasted only 7 minutes gave rise to a denial of procedural fairness. In that matter, Judge Kendall held:
[52] The applicants were invited to a hearing before the Tribunal. A substantial portion of the Tribunal’s invitation letter indicated that the applicants were required to provide evidence to the Tribunal as to how they met the English language proficiency standard (CB 51). This was, ultimately, the dispositive issue in this review.
[53] The Tribunal hearing was seven minutes long (CB 60-64). It is understandable that to an unrepresented applicant this would seem oddly brief. Given the facts specific to this case, however, it cannot be said that the hearing was unreasonably short.
[54] There is no minimum statutory time limit for hearings before the Tribunal and brevity alone is not indicative of a denial of procedural fairness.
[55] What is required is that the Tribunal provide the applicant with a real and meaningful opportunity to provide evidence and present arguments: Act, s.360. That includes providing the applicants with a hearing in which they understand the process and can participate and engage in that process: Minister for Immigration and Citizenship v SZNVW[2010] FCAFC 41, (2010) 183 FCR 575.
[56] There is no written transcript of the Tribunal hearing before this Court. However, from what can be gleaned from the Tribunal decision, the Court is satisfied that the first applicant (noting that the second applicant did not attend) comprehended, participated and engaged in the Tribunal hearing.
[57] The hearing has to be seen within the context of the relevant statutory requirements. Here, the Court notes [11]-[13] in the Tribunal’s decision. In these paragraphs the Tribunal indicates that it explained the relevant visa requirements to the first applicant, that the first applicant indicated that she now understood the language proficiency requirements but that she reiterated her difficult personal circumstances. The Tribunal then again explained what the requirements were and noted that it did not have any discretion to waive them or assist the applicants once it was clear that a language test had not been undertaken prior to the visa application being lodged.
[58] On the face of the Tribunal’s decision, the Court is satisfied that the applicants were given a fair opportunity to attend and participate. There is nothing to suggest here that the requirements of Part 5 Division 5 of the Act were not complied with.
Like Pabbi, the dispositive issue in this matter was whether the applicant met the English language proficiency requirement. That was, as the Minister submitted, a binary issue which explains the brevity of both the hearing and the decision.
The Court is troubled by a hearing which lasted only 13 minutes, especially one which required the assistance of an interpreter. In the Court’s view, an applicant who avails themselves of the Tribunal’s jurisdiction would ordinarily be entitled to expect something more than that. When a hearing only lasts a matter of minutes, that can call into question whether or not an applicant was offered a meaningful opportunity to be heard. At the same time, a hearing should not be unnecessarily protracted and, as observed in Pabbi, brevity alone is not indicative of a denial of procedural fairness. Nevertheless, where a hearing is as short as the one in Pabbi or in this matter, the decision should be carefully reviewed to ascertain whether or not the applicant has been provided with a real and meaningful opportunity to provide evidence and present arguments.
In this respect, the Court is of the view that the following paragraphs from the Tribunal decision are critical.
11. At hearing the Tribunal had a discussion with the applicant regarding his application noting that the delegate had refused the applicant's application for the grant of a student visa because the applicant did not provide evidence of English language proficiency in accordance with the relevant instrument. The Tribunal had a discussion with the applicant regarding the requirements of the instrument and in particular the types of tests that are required to demonstrate English language proficiency. The Tribunal noted to the applicant that the assertion made that he did not need to demonstrate English language proficiency because he was currently enrolled was not accurate and nor was the test result that he provided from his current enrolment with Durban College a relevant test result for the purposes of the Act.
12. The Tribunal asked the applicant if he would like to provide any further evidence or make any other statements in regard to this matter as it was his application and his opportunity to do so. The applicant stated that he was currently enrolled to study here and that his recent college test does demonstrate his English language proficiency, and that he wanted to complete his studies before returning home.
In the Court’s view, these paragraphs demonstrate that the Tribunal engaged with the applicant in respect of the dispositive issue, including engaging with the applicant in respect of the submission and evidence he had provided on the eve of the hearing. The Tribunal raised with the applicant the difficulties with his argument that he was not required to demonstrate English language proficiency. The Tribunal also offered the applicant an opportunity to provide further evidence.
Having regard to the nature of the dispositive issue and what is apparent from the Tribunal’s decision, the Court is satisfied that the applicant was not denied procedural fairness as a consequence of the brevity of the hearing.
Discretionary refusal of relief – ulterior purpose
The Minister also submitted, as an alternative, that the Court should refuse to grant relief in the exercise of its discretion. The Court was asked to “draw an inference” that the first applicant is pursuing this judicial review proceeding for an “ulterior purpose”, namely to extend his residence in Australia. In support of that submission, the Minister relied upon an affidavit of Alexander Pok-Man Chan affirmed on 28 May 2024. That affidavit did no more than annex a copy of screenshots of the first applicant’s PRISMS records.
A similar argument was rejected by this Court in Kaur v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 818 at [52]-[59] (Kaur). In Kaur, this Court declined to draw the adverse inference sought by the Minister on the basis that it bordered on a veiled request to engage in impermissible merits review. Such an inference should not be drawn lightly and the Minister’s reliance on authorities said to support this position was misplaced. The Court also observes that Judge Laing declined to make a similar inference sought by the Minister in Virdi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 282 at [29]-[30].
For the same reasons as set out in Kaur, this Court declines to make the inference requested by the Minister.
Nevertheless, as the Court has accepted that there is no apparent jurisdictional error which arises on the face of the decision, the application has not succeeded and there is consequently no need for this Court to consider withholding relief on this basis.
CONCLUSION
The application for judicial review, supporting affidavit and additional oral submissions presented by the applicants have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
Accordingly, the application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 20 September 2024
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