Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 1187
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1187
File number(s): MLG 354 of 2019 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: MIGRATION LAW – application for judicial review – Student (subclass 572) visa – where applicant failed to meet Condition 8202(2) of Schedule 8 to the Migration Regulations 1994 – where Administrative Appeals Tribunal affirmed decision of first respondent to exercise discretion in cancelling visa – whether Tribunal erred in its application of Procedures Advice Manual (PAM3) – Whether Tribunal failed to consider the best interests of the applicant’s child – Found Tribunal failed to consider the best interests of the applicant’s child – Found failure to consider best interests of child amounts to jurisdictional error Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 140(1), 474
Migration Regulations 1994 (Cth), Sch 8 Cond 8202
Procedures Advice Manual (PAM3), Department of Immigration and Ethnic Affairs
Cases cited: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 635
Craig v South Australia (1995) 184 CLR 163
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10.
DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038
G v Minister for Immigration and Border Protection [2018] FCA 1229
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Minister for Immigration v WZARH (2015) 256 CLR 326
Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73
MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762
Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Uelese v Minister for Immigration [2015] HCA 15
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 9 October 2023 Place: Melbourne Counsel for the Applicants: Dr McBeth Solicitor for the Applicants: Clothier Anderson & Associates Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 354 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARMINDER SINGH
First Applicant
BANDANA CAMBOW
Second Applicant
GREESHA RUPRA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Amended Application for an Order pursuant to s 476 of the Migration Act 1958 (Cth) be granted.
2.A writ of certiori be issued directed to the second respondent quashing the decision dated 31 January 2019.
3.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s Application according to law.
4.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 25 September 2023, in which the First Applicant (applicant) seeks judicial review of a decision of the second respondent (Tribunal) dated 31 January 2019. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (subclass 572) visa (Visa).
BACKGROUND
The applicant is a citizen of India.
The second applicant is the applicant’s wife and the third applicant is the applicant’s daughter.
The applicant arrived in Australia on 23 October 2009 on a Student (class TU) (Subclass 572) visa.
On 27 April 2011 the applicant was granted a further Student (Subclass 572) visa.
On 30 July 2014 the applicant was granted a Higher Education Sector (Subclass 573) visa.
On 31 October 2014 the applicant was granted a further Student (subclass 572) visa (Visa), which was to expire on 15 March 2017.
On 2 March 2017, the Department of Immigration and Border Protection (Department) sent the applicant by email a “Notice of Intention to Consider Cancellation” (NOICC) of the Visa under s 116 of the Migration Act 1958 (Cth) (Act). The NOICC informed the applicant that the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 2 June 2016. The applicant was given five working days to comment on the grounds for cancellation identified in the NOICC, and to provide reasons as to why the Visa should not be cancelled.
The applicant did not provide a response to the NOICC.
The Minister is empowered to cancel an applicant’s visa in circumstances where “it’s holder has not complied with a condition of the visa”, pursuant to s 116(1)(b) of the Act.
Cancellation of Visa on 14 March 2017
On 14 March 2017, a delegate of the Minister (Delegate) cancelled the applicant’s Visa pursuant to s 116(1)(b) of the Act. The cancellation notification attached the decision record of the Delegate which stated the following:
Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course. Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been in a registered course of study since 2 June 2016. It therefore appears that you do not meet the requirements of condition 8202(2)(a).
After considering the applicant’s circumstances in which the ground for cancellation arose, the Delegate found the ground for cancellation in s 116(1)(b) of the Act existed and the grounds for cancelling the Visa outweighed the grounds which went against a decision to cancel the Visa.
A copy of the Delegate’s decision, as well as information about the applicant’s right of review, was sent to the applicant to his nominated email address on 14 March 2017.
Application for review at Tribunal on 20 March 2017
On 20 March 2017, the applicant applied to the Tribunal for review of the Delegate’s decision. In the application for review, the applicant nominated the email address <[email protected]> for correspondence and provided the mobile number “xxxxx xxx42”. The applicant’s wife and child were included as applicants on the application.
On 24 March 2017, the Tribunal sent the applicant confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to his contact details.
On 15 November 2018 the Tribunal emailed the applicant enclosing an invitation for him to attend a hearing on 30 November 2018 at 2.00pm with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 28 November 2018 the applicant wrote to the Tribunal requesting the hearing be postponed by reason of his “migration officer” being overseas. The Tribunal did not accept the applicant’s request for an adjournment on the basis that there was no record of the applicant authorising any registered migration agent or lawyer with the Tribunal. The Tribunal did not accept the applicant was unable to attend to give evidence and provide arguments at the scheduled hearing and as such the hearing was to proceed on 30 November 2018.
On 30 November 2018, the applicant’s newly appointed representative provided a submission to the Tribunal together with a number of documents. In the submission, the representative claimed the applicant’s breach regarding his enrolment was unintentional and was the result of incomplete advice and poor representation on the part of the applicant’s former representative.
On 30 November 2018 the applicant attended the hearing before the Tribunal. The applicant’s representative also attended the hearing.
On 7 December 2018, the applicant’s representative provided a post hearing submission dated 6 December 2018 to the Tribunal which attached the following documents:
·two character statements from third parties;
·an extract from VicRoads;
·letters of educational attainment;
·a one-page screenshot showing a text message exchange; and
·a further statement from the applicant.
On 31 January 2019 the Tribunal affirmed the decision of the Delegate to cancel the applicant’s Visa.
Tribunal’s decision
On 1 February 2019 the Tribunal sent a copy of the decision record to the applicant’s representative’s email address. The Tribunal identified that the issue was whether the applicant had breached condition 8202 of Schedule 8 of the Migration Regulations 1994 (Cth) (Regulations).
At the relevant time, condition 8202(2)(a) required a visa holder to be “enrolled in a registered course”. On the evidence before it, the Tribunal found the applicant was not enrolled in a registered course of study from 2016 and thus had not complied with condition 8202(2).
Having found that the applicant had not complied with a condition of the Visa, under s 116(1) of the Act, the Visa may be cancelled. The Tribunal proceeded to consider whether to exercise its discretion to cancel the Visa, having regard to the matters raised by the applicant as to why the visa should not be cancelled and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
The Tribunal’s decision is structured by reference to the nine matters that should be considered in PAM3 and identifies at the end of consideration of each of those matters the weight to be given to each respective consideration.
At paragraph [65] of the Tribunal’s decision, the Tribunal summarised its findings as follows:
…the Tribunal has made a number of adverse credibility findings that the applicant is not a genuine student who will uphold the conditions on his student visa if reinstated; and that he will not face any significant or severe hardships if the visa remains cancelled; and that the claimed grounds for the applicant’s significant non-compliance and breach of condition 8202 leading to the cancellation of his visa had not been reliable. Even when taking into consideration the compelling grounds in favour of the other applicants, the grounds for the visa to remain cancelled significantly outweigh any other factors in the applicant’s favour.
I consider the Tribunal’s decision, as is presently relevant, further below.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 12 February 2019. The applicant filed an Amended Application on 25 September 2023.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The Tribunal misconstrued or departed from the Departmental policy in weighing one of the discretionary factors set out in the procedural advice manual (PAM3) against the applicants, rather than only weighing those factors in an applicant’s favour as the policy prescribes, without a compelling reason for doing so, or alternatively, the Tribunal failed to afford procedural fairness to the applicants before departing from Departmental policy.
Particulars
(a)The Tribunal purported to apply the government policy guidelines set out in PAM3 in deciding whether to exercise the discretion to cancel the applicant’s visa.
(b)The PAM3 guidelines provide that matters must be weighed in favour of the visa holder, not against the visa holder.
(c)The Tribunal gave the factor of “the purpose of the visa holder’s travel to and stay in Australia” weight in favour of the visa remaining cancelled.
(d)The findings and weight attributed to that factor were material to the Tribunal’s decision.
(e)The Tribunal expressed no compelling reason for departing from the Departmental policy it was purporting to apply by weighing the consideration against the applicants rather than in their favour.
(f)The Tribunal did not put the applicants on notice of its intention to depart from Departmental policy or to be heard on any such departure (Ground 1).
2.The Tribunal failed to consider the best interests of the third applicant, who was a three year old child at the time of the Tribunal’s decision.
Particulars
(a)The Tribunal purported to consider the Convention on the Rights of the Child and concluded that the issue was not relevant to the review and gave it no weight.
(b)The Tribunal failed to appreciate that the Convention on the Rights of the Child requires that the best interests of any child be a primary consideration in any administrative decision affecting that child.
(c)The Tribunal made no findings as to where the best interests of the third applicant, being a child affected by the decision to cancel the visa, lay (Ground 2).
The applicant also filed:
(a)an affidavit filed on 12 February 2019, annexing the Tribunal’s decision;
(b)written submissions filed 26 September 2023; and
(c)an affidavit of Mr Luke Brennan filed on 26 September 2023, annexing PAM3.
The Minister filed a Response on 27 February 2019. The Response contained the following sole ground:
The decision under review is not affected by jurisdictional error.
The Minister also filed written submissions on 2 October 2023.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
LEGISLATIVE CONTEXT
Section 116(1) of the Act
Pursuant to s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that the visa holder has not complied with a condition of the visa. Condition 8202(2) of Schedule 8 to the Regulations, relevantly, requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2);
·had not been certified by his or her education provider as not achieving satisfactory course progress as specified: 8202(3)(a); and
·has not been certified by his or her education provider as not achieving satisfactory course attendance as specified, 8202(3)(b).
Section 140(1) of the Act
Pursuant to s 140(1) of the Act if a person’s visa is cancelled under s 116 of the Act, a visa held by another person because of being a member of the family unit of the person is also cancelled.
CONSIDERATION OF GROUNDS OF REVIEW
It is uncontested that:
·the applicant had not complied with a condition of the Visa, being that the applicant was not enrolled in a registered course and therefore had not complied with condition 8202(2) of Schedule 8 of the Regulations;
·as a consequence of the Minister cancelling the applicant’s Visa there was consequential cancellation of the applicant’s wife and daughter’s visa pursuant to s 140(1) of the Act;
·there are no matters specified in the Act or Regulations that are required to be considered by the Tribunal in considering whether to exercise its discretion to cancel the applicant’s Visa; and
·in affirming the Delegate’s decision to cancel the applicant’s Visa the Tribunal had regard to the government policy guidelines contained in PAM3.
The relevant extracts of PAM3 are set out in Annexure A to this decision.
Ground 1
Applicant’s submissions
By Ground 1 the applicant submits that the Tribunal erred in its application of PAM3 in the manner in which it purported to consider the purpose of the visa holder’s travel to and stay in Australia (First Consideration). The applicant submits that:
·by its conclusion that overall the First Consideration gave some weight in favour of cancelling the visa, the Tribunal misconstrued the overarching purpose of PAM3 (Limb One);
·the Tribunal misconstrued the subject matter of the First Consideration (Limb Two); and
·in the alternative, if the Tribunal deliberately departed from PAM3, it did not give the applicant notice of this departure and in so doing denied the applicant an opportunity to be heard, thereby denying the applicant procedural fairness (Limb Three).
As to Limb One, the applicant submits that whilst the Tribunal was not bound to apply PAM3, having done so, a misapplication can, and in this case does, amount to jurisdictional error. The applicant submitted that PAM3 is intended to provide countervailing factors to the cancellation of a visa under s 116 and that on a proper construction of PAM3 it is not open to the Tribunal to weigh a matter against the visa holder. Accordingly, it is submitted that in weighing the First Consideration against the applicant the Tribunal erred. As to Limb Two, in oral submissions the applicant submitted that the Tribunal asked itself if the applicant was a genuine student. It therefore did not address the subject matter of the First Consideration and in so doing misconstrued PAM3. The applicant further submitted that the Tribunal did not consider whether the visa holder had a compelling need to remain in Australia.
In support of Limb One and Two the applicant relies on Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 (Jabbour).
As to Limb Three, the applicant submits that a departure from an announced intended procedure without giving an applicant an opportunity to be heard on the proposed departure to be adopted, can constitute a denial of procedural fairness. The applicant relies upon Minister for Immigration v WZARH (2015) 256 CLR 326 (WZARH).
The applicant submits that asserted errors were material to the Tribunal’s decision as had the First Consideration not been weighed against the applicant, it is at least possible that the Tribunal might have exercised its discretion differently. The applicant relies upon Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (Nathanson).
Minister’s submissions
The Minister submits that the Tribunal did not misconstrue PAM3 and, in any event, as PAM3 is not a binding document a failure to comply with it does not give rise to jurisdictional error. The Minister submits that where a decision-maker purports to apply a policy such as PAM3 which has no binding status, a more radical misconstruction or misunderstanding of the policy is required in order to establish legal unreasonableness than in the case of a policy which the decision-maker is bound to take into account. The Minister relies upon BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 635 (BWS22); El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota); DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022 (DCM20) citing Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189.
The Minister further submits that there was no breach of procedural fairness. Firstly, PAM3 did not require that the Tribunal only weigh matters in favour of the applicant such that any departure from that was required to be put to the applicant. Secondly, even if the Tribunal did depart from PAM3, which is denied, it is submitted that the applicant has not discharged their onus of proof, as there is no evidence about what occurred at the hearing before the Court. Thirdly, if the assertion as to procedural fairness is based on the absence of an express reference to it doing so in its decision, the Tribunal does not have an obligation to record “what it did” in conducting its review. The Minister relies upon MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117; NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 cited in Villamayor v Minister for Immigration and Border Protection [2015] FCA 1393.
Consideration – Ground 1 – Limb 1
Annexure LB-1 of the Affidavit filed by Mr Brennan is headed “s 116 - Deciding whether to cancel”.
It provides that “there are no prescribed matters to which the delegate must have regard in considering whether to cancel a visa under s116” (emphasis added).
Under the heading “Matters that should be considered” it then provides as follows:
It is policy that delegates take into account the following ten matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder…
(emphasis added).
For the following reasons I reject the applicant’s submission that it is not open to the Tribunal when applying PAM3 to weigh a matter against a visa holder. Firstly, it is to be noted that PAM3 is directed to the matters to be considered in deciding whether “to cancel” a visa pursuant to s 116 of the Act. Secondly, whilst PAM3 provides that generally matters must be weighed in favour of the visa holder, PAM3 expressly provides that the weight to be given to each matter is “at the discretion of the delegate”. I respectfully concur with the view expressed by Deputy Chief Judge Mercuri in BWS22 that it is clear from the context in which this statement exists that PAM3 acknowledges that ultimately the weight to be given to any individual matter is a matter for the decision-maker. Accordingly, I reject the applicant’s oral submission that if the Tribunal is not going to weigh a matter in favour of the visa holder as is the case “generally”, the Tribunal is required to “say so and say why”. Thirdly, I consider the construction of PAM3 advanced by the applicant to be inconsistent with PAM3 when read as a whole. As set out above, PAM3 contains nine matters which should be considered. Certain of those matters, in my view, are properly construed as being capable of being weighed against the visa holder: for example, the extent of compliance with visa conditions both presently and on previous occasions and the visa holder’s past and present behaviour toward the Department. In my view, to require that prior or other non-compliance with visa conditions or untruthful or uncooperative behaviour in dealings the Department can only weigh in favour of the visa holder or be neutral would deny the decision-maker giving those matters any meaningful or proper consideration. Such a construction of PAM3 cannot be supported. Fourthly, I consider the construction advanced by the applicant to be inconsistent with the wide discretion conferred under s 116 of the Act.
I therefore consider it was open to the Tribunal to weigh the First Consideration against the applicant and that such a weighting does not, in and of itself, disclose any misconstruction of PAM3.
Consideration – Ground 1 – Limb 2
PAM3 provides that one of the matters to be considered is:
The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder had a compelling need to travel to or remain in Australia.
I reject the applicant’s submission that the Tribunal misconstrued the subject matter of the First Consideration. I consider that on a fair reading of the Tribunal’s decision the Tribunal understood and considered the subject matter of the First Consideration.
Paragraphs [31]-[38] of the Tribunal’s decision are included under the heading “The purpose of the visa holder’s travel to and stay in Australia”.
At paragraph [31] of its decision the Tribunal found that there is no evidence to suggest that the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study. At paragraph [32] the Tribunal addressed the applicant’s study history in Australia and accepted that the applicant had successfully completed a Certificate III in Automotive, Certificate IV in Business Management, a Diploma of Management and an Advanced Diploma of Business Management. The Tribunal also accepted that the applicant completed approximately half of an Advanced Diploma of Marketing in 2016. At paragraph [33] the Tribunal considered the applicant’s enrolment on 29 November 2018 in an Advanced Diploma of Leadership and Management, finding that this enrolment occurred many months after the cancellation of the applicant’s student visa and only one day before the hearing and was solely for the purpose of a favourable outcome of the Tribunal’s review.
At paragraph [34] the Tribunal recounted the applicant’s evidence as to his reasons for the studies he had undertaken and the connection of those studies and the studies he now wished to undertake to his stated career and business goals. At paragraph [35] the Tribunal said:
…While the Tribunal accepts the applicant’s family owns and operates real estate and property development businesses, the Tribunal found the applicant lacking in convincing detail that a further diploma-level or a degree-level qualification was compellingly required to advance his career or business goals. The Tribunal does not accept either an Advanced Diploma of Marketing or a Bachelor of Business is essential in such enterprises, although it, along with the applicant’s completely qualifications in business management, may be complementary. Later in the hearing, the applicant stated there was an expectation on him to remain in Australia with his family when discussing the impact of consequential cancellation of the other applicant’s visas. This further undermined the Tribunal’s confidence that the applicant was genuinely interested in remaining in Australia on a temporary basis, as he had claimed. The applicant also made a further claim that he had planned to complete a Bachelor of Business before returning to India once he finished an advanced diploma. Had this been the case, it was open to the applicant to do so having graduated from a diploma. Overall, the Tribunal does not accept the applicant’s weak explanations and, in the context of his overall visa history, finds him to be lacking in considerable credibility.
At paragraph [36] the Tribunal addresses the applicant’s IELTS score and at paragraph [37] said:
Based on this adverse credibility finding and individual weightings, it is the Tribunal’s cumulative assessment that the applicant has used successive student visas, including this cancelled student visa under review, not to advance any specific personal, academic, career or business goals but to remain in Australia for some other purpose. The tribunal accordingly does not accept the applicant is a genuine student whose purpose is to remain in Australia for the purposes of full time study.
Accordingly, whilst the Tribunal did find that the applicant was not a genuine student, I reject the submission that this is the matter to which the Tribunal directed itself under the First Consideration. The Tribunal’s comments in paragraph [37] must read in the context of paragraph [37] as a whole and preceding paragraphs [31]-[36]. In those paragraphs the Tribunal first considered the applicant’s initial purpose for travel to and stay in Australia, finding no evidence that it was not for study. The Tribunal next considered the studies subsequently undertaken by the applicant and then considered whether the studies proposed to be undertaken by the applicant, both at that time of the hearing and in the future, were required for the applicant’s stated career and business goals. As set out above, the Tribunal found at [35] that the applicant was “lacking in convincing detail that a further diploma-level or a degree-level qualification was compelling required to advance his career or business goals.” On a fair reading of paragraph [31]-[38], I consider that the Tribunal was asking itself whether there was a compelling need for the applicant to remain in Australia – having regard to the applicant’s travel to and stay in Australia. Further, in the context of the applicant having used successive student visas, the Tribunal found that the purpose of the applicant remaining in Australia was not to advance any specific personal, academic, career or business goals but was for some other purpose.
I therefore consider that on a fair reading of the Tribunal’s decision, the Tribunal did not misconstrue the subject matter of the First Consideration; rather, I consider that on a fair reading of paragraphs [31] – [38] the Tribunal did consider the purpose of the applicant’s travel to and stay in Australia, including whether the applicant had a compelling need to remain in Australia.
Consideration – Ground 1 – Limb 3
I have found that the Tribunal did not misconstrue PAM3 in finding that the First Consideration weighed against the applicant. I have also found that the Tribunal did not misconstrue the subject matter of the First Consideration. Accordingly, it is not necessary that I consider Limb 3 of Ground 1.
For those reasons, it is also not necessary that I consider whether the misapplication or misconstruction of PAM3 as asserted by the applicant constitutes jurisdictional error nor whether any such error if established is material.
For each of the above reasons, Ground 1 does not disclose any jurisdictional error on behalf of the Tribunal.
Ground 2
Applicant’s submissions
By Ground 2 the applicant submits that the Tribunal failed to consider the best interests of the applicant’s child (aged 3 years at the time of the Tribunal’s decision) and in so doing erred. The applicant submits that it was necessary for the Tribunal to make a finding as to what was in the Child’s best interests, then afford that finding appropriate weight, consistent with the requirement to treat the best interests of the Child as a primary consideration.
The applicant submits that in so erring the Tribunal fundamentally misapplied or misconstrued PAM3 such as to constitute jurisdictional error. Further, the applicant submits that such error was material.
The applicant relies upon Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762; Nathanson.
Minister’s submissions
The Minister submits firstly, the Tribunal was under no obligation to consider the best interests of the child. The Minister submits that as PAM3 is not a binding document and a failure to comply with it does not give rise to jurisdictional error. The Minister relies upon El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; Leota. Further, the Minister submits that at the hearing the applicant submitted that “there was no international obligations that would be breached as a result of the cancellation” and made extremely limited, if any, submissions about the best interests of the Child. The Minister submits that the applicant’s submissions were limited to a fear of disruptive impact on his daughter if the applicants were to be excluded from returning to Australia. The Minister submits that in circumstances where there was no substantial and clearly articulated claim made about the best interests of the Child, the Tribunal was not required to consider the matter.
Secondly, the Minister submits that in any event the Tribunal did consider the best interests of the Child and gave that weight. The Minister relies upon paragraphs [41], [44], [45], [58], [59] and [60] of the Tribunal’s decision. In oral submissions the Minister submitted that paragraph [60] is an express finding as to the best interests of the Child and that it can be inferred from paragraphs [64] and [65] of the Tribunals’ decision that the best interests of the Child were a primary consideration.
Thirdly, the Minister submits that even if the Tribunal fell into error, which is not conceded, it was not jurisdictional because firstly, a failure to apply PAM3 is not itself jurisdictional error and secondly, any error was not material.
Consideration – Ground 2
One of the matters to be considered under PAM3 is:
Whether Australia has obligations under relevant international agreements that would be breached as a result of the Visa cancellation, - as two examples:
•if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children – for more information, refer to:
•Australia’s international obligations and
•PAM3: Act - Compliance and Case Resolution – Case resolution –Guiding principles – Treatment of children.
…
The above referred to documents, Australia’s international obligations and PAM3: Act - Compliance and Case Resolution – Case resolution – Guiding principles – Treatment of children are annexed to LB-2 and LB-3, respectively, of the Affidavit of Mr Brennan.
Annexure LB-2, relevantly, provides as follows:
Relevant international obligations
Australia’s international obligations derive, in part, from treaties to which Australia is a party. When considering whether to cancel a visa under s109, s116, s116(1AA), s128 and s140(2), or whether to revoke the cancellation under s131, officers must take into account any relevant obligations under such treaties.
…The obligations that are most relevant to the cancellation process are those relating to the best interests of the child…
The CRC and family unity principles
Best interest of children
Article 3.1 of the Convention on the Rights of the Child (CRC) states:
‘In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’
…
…Consideration should be given to the type and strength of the relationship(s) between the non-citizen and the child/children and also the extent of impact that that visa cancellation would have on the child.
The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations only apply to children who are within Australia’s territory or jurisdiction.
Section 4 of LB-3 is headed “Principle 2 - Consideration of the CROC” and provides as follows:
Officers should consider Australia’s obligations under the Convention on the Rights of the Child (CROC) when making decisions concerning children. For more detail on the CROC, see the Convention on the Rights of the Child in this instruction.
Detail regarding the CROC is set out in Sections 13- 25 of LB-3. The presently most relevant sections provide as follows:
15 Article 3 – Best interests of the child
Broadly, Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. For more information on how to assess the best interests of a child, see Assessing the best interests of the child.
…
23 About assessing the best interests of a child
Article 3 (Best interests of the child) of the Convention on the Rights of the Child provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”
The best interests of the child must be treated as ‘a’ (and not ‘the’) primary consideration in exercising any discretionary powder under the Act.
Importantly, because Article 3 is worded “all actions concerning children”, officers should assess the best interests of a child in relation to:
•decisions directly relating to a child and
•decisions about a family member, primary care giver or other person who has claimed responsibility for the child, even if the decision does not directly relate to the child. This is because any decision about a parent or primary care giver will affect the child. The child concerned may be a non-citizen or an Australian citizen child of a non-citizen parent.
24 When to assess the best interests of the child
24.1 Discretionary powers
Officers must consider a child’s best interests when exercising discretionary powers. For example, where an officer is considering cancellation of a child’s or parent’s visa under s116 or s109 of the Migration Act, the officer must consider the best interests of the child.
…
25 How to assess the best interests of the child
Whilst there are no strict criteria by which the best interests of the child could be considered, the principles in the CROC can inform what is meant by a child’s ‘best interests’. As Australia is a party to the CROC, those principles should be applied when assessing the child’s best interests.
…
When exercising a discretionary power affecting a family member, primary care giver or a person who has claimed responsibility for a child, the following factors should be considered:
•the nature of the relationship with the child
•the duration of the relationship including the number and length of any separations and reason/s for the separation
•whether the child is an Australian citizen or permanent resident
•the likely effect on the child of any separation from the person including the family or other support available to the child if the child were to remain in Australia if the person was removed to their country of citizenship
•the child’s degree of integration into the Australian community, and by contrast the child’s ability to enter, reside, adapt and integrate if the child were to return with that individual
•the views of the child should be taken into account and given due weight in accordance with the child’s age, maturity and level of understanding
•any other factors which may be relevant to the particular case
…
Did the Tribunal err by failing to consider the best interests of the child?
It is uncontested that whilst not required to apply PAM3, in determining to affirm the decision to cancel the applicant’s visa, the Tribunal purported to do so.
At paragraph [41] of the Tribunal’s decision the Tribunal notes the applicant’s submission that “he fears the disruptive impact on his daughter’s development if they were to be excluded from returning to Australia.” At paragraph [58] the Tribunal refers to the “other applicants” being adversely affected by the “legal consequences arising from this visa not being reinstated”. At paragraph [59] the Tribunal accepts that there will be some hardship on the other applicants if the visa remains cancelled and that in returning to India “the other applicants’ experience, such as schooling, may be disruptive and challenging requiring some adjustments”, concluding that the applicant had failed to demonstrate that the hardship on the applicant’s wife and child “will amount to severe or significant or even onerous hardship.” At paragraph [60] of the decision, the Tribunal considered whether any international obligations would be breached as a result of the visa cancellation, saying:
Whether any international obligations would be breached as a result of the cancellation
During the scheduled hearing, the applicant said there were no international obligations that would be breached as a result of this cancellation. The Tribunal has considered Australia’s obligations arising from the Convention on the Rights of the Child, the Refugees Convention and other international protocols to which Australia is a signatory. However there is no evidence before the Tribunal that this consideration, including the impact on the other applicants, is relevant and it gives this factor no weight.
At paragraph [64] the tribunal said:
This decision has been difficult to reach because of the accepted adverse consequential impact of s. 140 on the second and third named applicants.
The Tribunal’s conclusion at paragraph [65] is set out above.
Accordingly, the Tribunal did not expressly identify that the best interests of the Child was a consideration relevant to its determination, nor do the reasons expressly identify that the Tribunal considered the best interests of the Child as a primary consideration.
I reject the Minister’s submissions that the Tribunal was not required to consider the best interests of the Child due to the limited submissions made by the applicant and the applicant’s disavowal that any international obligations would be breached by the cancellation of the applicant’s visa. Firstly, as was observed by the majority of the High Court in Uelese v Minister for Immigration [2015] HCA 15 at [62], such a submission seeks to import into the inquisitorial review function of the Tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal. Secondly, whether or not the applicant sought to make the best interests of the Child a positive aspect of his ‘case’, PAM3 provides that each of the nine matters should be considered where relevant “even if not specifically raised by the visa holder”. Further, PAM3 further provides that if there are children whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are “obliged to treat as a primary consideration the best interest of the children.”
I also reject the Minister’s submissions that paragraphs [41], [44], [45], [58], [59] and [60] of the Tribunal’s decision support a conclusion that the Tribunal did, in any event, consider the best interests of the Child and that paragraph [60] is an express finding as to the best interests of the Child. Firstly, as to the submission that paragraph [60] is an express finding as to the best interests of the Child, the language of the paragraph does not support such a conclusion. There is no mention in paragraph [60] of the best interests of the Child, let alone a finding as to what was in the Child’s best interests. A reference to having considered the obligations arising under the CROC cannot, in my view, be equated with a finding as to the best interests of the Child. Secondly, in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 the Full Court articulated the relevant principle concerning the obligation to consider the best interests of the child as a primary consideration and how that obligation operates in making decisions under the Act as follows:
[28] The relevant principles are not in doubt. Procedural fairness requires that, if the Minister proposes to make a decision which does not accord with the legal requirement that the best interests of affected minor children be a primary consideration, prior notice has to be given and an adequate opportunity afforded so as to present a case against the taking of such a course (see Teoh at 291-292 per Mason CJ and Deane J). The source of this procedural fairness requirement is Art 3.1 of the United Nations Convention on the Rights of the Child, which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[29] In Teoh, at 289, Mason CJ and Deane J emphasised the significance of the wording of Art 3.1 and the reference to the best interests of the child being “a” primary consideration. Their Honours added (emphasis in original):
The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.
Their Honours said at 292 that a “decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it”.
[30] Other authorities illustrate how the obligation to treat the best interests of a child as a primary consideration in making decisions under s 501 of the Act can give rise to jurisdictional error. For example, in Wan, the Full Court (Branson, North and Stone JJ) stated at [32]:
An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
[31] Cases such as Nweke and Lesianawai illustrate how procedural unfairness can occur if, in conducting the balancing exercise under s 501, consideration of the best interests of a child is left at the level of mere hypothesis of possible harm, as opposed to the decision-maker first determining what in fact are those best interests, and only then assessing whether the strength of any other relevant considerations (whether primary or otherwise), such as risk of harm to the Australian community, outweighs the child’s best interests as a primary consideration. Thus, in both those cases, it was found that the Minister had fallen into error when the Minister’s statements of reasons indicated that the balancing exercise had been conducted on the basis of a finding or assumption that it may be in the children’s best interests if their father’s visa was not cancelled, without any decisive determination being first made on what the best interests of the children actually required.
In Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 at [36] the principles above were considered to apply equally to decisions affecting visa applicants and visa holders facing the prospect of their visas being cancelled.
What was required was a close consideration of the material and evidence, a determination of what in fact were the best interests of the Child, and then an assessment of those interests as a primary consideration in light of the other considerations: Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762 at [51].
In G v Minister for Immigration and Border Protection [2018] FCA 1229 Justice Mortimer stated that the consideration of a child’s best interests requires a decision-maker actively to engage with what is likely to occur to a child, and to articulate, with some degree of specificity, how the child’s interests are likely to be affected. Her Honour said the task was expressed by Justice Allsop in Perez v Minister for Immigration & Multicultural Affairs [2002] FCA 450 at [118]-[120] where his Honour said:
[118] In Wan, supra, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan, supra at [20]. Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal. Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. An appreciation of the facts set out at paras 8 to 11 of the reasons ([77] above) and of the contents of the ‘compassionate statements’ referred to in para 17 of the reasons ([79] above) does not mean that from that material the bests interests of the children have been identified and appreciated, and taken into account as a primary consideration. It is not just a matter for ‘compassion’ as para 17 would tend to indicate was the view of the delegate. ‘Compassion’ is participation in another's suffering, fellow-feeling, sympathy, pity inclining one to show mercy or give aid: The New Shorter Oxford Dictionary (1993). The interests of the children are considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).
[119]The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children. The delegate did not say that he had taken the children's interests into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.
[120] It is not enough to say, as in a sense the respondent submits, that all this is found in paras 8 to 11 and 17 of the reasons (see [77] and [79] above). It is not. The delegate certainly took facts concerning the family and children into account. He recognised, and expressed himself in para 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.
I accept that the Tribunal took certain facts in relation to the child into account, most particularly at paragraph [41], [58] and [59]. However, the task that is required to be undertaken by the Tribunal is the identification of the best interests of the child and then the assessment of those interests as a primary consideration in light of other considerations adverse to the applicant. That did not occur.
Finally, I also reject the submission that it can be inferred from paragraphs [64] and [65] of the Tribunal’s decision that the best interests of the Child were a primary consideration in its decision to affirm the cancellation of the applicant’s visa. Firstly, I have found that the Tribunal failed to identify the Child’s best interest. Accordingly, the Tribunal cannot therefore have considered those interests as a primary consideration. Secondly, paragraph [64] does no more than identify, and express some compassion for, the adverse consequence of the consequential cancellation of the second and third applicant’s visas pursuant to s 140 of the Act. It does not accord any primacy to the consideration of the best interests of the Child. Thirdly, the reference in paragraph [65] to “the compelling grounds in favour of the other applicants” also, in my view, falls well short of considering the best interests of the Child as a primary consideration.
Accordingly, the Tribunal did not treat the Child’s best interest as a primary consideration in accordance with PAM3 when deciding to affirm the decision to cancel the applicant’s visa. In failing to do so, the Tribunal erred.
Is the error jurisdictional?
In Leota Justice Banks-Smith considered the role of PAM3 and at [54]-[55] said:
…PAM3 itself provides that it is to be taken into account by decision‑makers but not given the force of law: see COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190; (2015) 236 FCR 148 at [12].
In El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 Gray J stated:
[45] In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
Accordingly, a mere failure to comply with PAM3 will not establish jurisdictional error. However, jurisdictional error may arise where a non-binding policy, such as PAM3, is misconstrued or misapplied.
In DCM20 at paragraph [20] Justice Perry noted that:
…in certain circumstances, a misconstruction of Ministerial policy may lead to a finding that the decision is illogical and perverse even where, as here, the decision-maker is not bound to take the policy into account…
Justice Perry then quoted from Justice Robertson in Jabbour at paragraph [89], where the Court said:
It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else… This may be an example of “an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”… (emphasis as added by Justice Perry)
The effect of this reasoning, as noted by Justice Perry at paragraph [21], is that:
…where a decision-maker purports to apply a policy which has no binding status, a “more radical” misconstruction or misunderstanding of the policy is required in order to establish legal unreasonableness, than in the case of a policy which the decision-maker is bound to take into account…Nor in any event, are Ministerial policies to be construed and applied “with the nicety of a statute” (emphasis in original)
I have found that the Tribunal failed to apply PAM3 in that it failed to make a finding as to the Child’s best interests and to consider those interests as a primary consideration. The applicant submits that this is a fundamental misapplication of the policy such as to give rise to jurisdictional error. I accept that submission.
When exercising the discretion to determine whether to cancel the applicant’s visa, PAM3 provided that the best interests of the Child were a primary consideration. In circumstances where the Tribunal did not identify the best interests of the Child at all, let alone consider those interests as a primary consideration, I consider the Tribunal has fundamentally misconstrued PAM3 such that the Tribunal applied something else and in so doing has fallen into jurisdictional error.
Further, contrary to the Minister’s submission, I consider the error to be material. Materiality is established if the error deprived the applicant of a realistic possibility of a different outcome. What is required to be considered is whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The standard of “reasonable conjecture” is undemanding: Nathanson at [1], [32], [33].
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 the Full Court of the Federal Court said [79]:
The threshold for establishing materiality has been described as “undemanding” and “not onerous”. However, that does not mean that the exercise in which a court is required to engage in assessing materiality is to be undertaken by adopting an approach that is driven by formalism, which fixes on nuances said to arise from a fine-grained parsing of the decision-maker’s language, or which focuses on possibilities that are theoretical rather than real (Chamoun at [66], distinguishing realistic possibilities from those that are fanciful or improbable).
The Minister submits that the Tribunal found that the impact on the Child was not even onerous. In those circumstances, the Minister submits that it is improbable or fanciful to conclude that the Tribunal could have come to some other conclusion had it considered the hardship the Child would face as a primary consideration.
I reject that submission. The Tribunal’s finding that the impact on the Child was “not even onerous”, was made in the absence of the Tribunal identifying what were the best interests of the Child, how the cancellation of the Visa would impact on those best interests and weighing those considerations as a primary consideration with the other considerations. Had it done so, there may have been a different outcome. As the Court said in LPDT at [83], the assessment of whether a realistic possibility has been established is not to be undertaken by merely excising specific reasoning which involves error without assessing the impact of the error on the decision-maker’s reasoning.
Accordingly, I consider that Ground 2 discloses jurisdictional error on behalf of the Tribunal.
DISPOSITION
For the above reasons, the applicant’s Amended Application is granted.
The matter is remitted back to the Tribunal for reconsideration in accordance with law.
The applicant seeks an order that the first respondent pay their costs. I shall order that the first respondent pay the applicant’s costs in a sum to be fixed, if not agreed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 14 December 2023
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