Tamang v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1243
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamang v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1243
File number(s): SYG 244 of 2019 Judgment of: JUDGE LAING Date of judgment: 22 November 2024 Catchwords: MIGRATION – Where the Tribunal relied upon a failure to reply to a request for information – where the request concerned personal records of the second applicant – where both applicants had a history of participation in the review process – where the Tribunal’s exercise of discretion was premised upon a misunderstanding on the part of the Tribunal that an authorised recipient had been appointed in respect of the second applicant – whether the exercise of discretion was legally unreasonable – whether the Tribunal’s decision was otherwise affected by relevant error – application succeeds Legislation: Migration Act 1958 (Cth) ss 359, 359B, 359C, 360, 363A, 379A, 379C, 379G, 379EA & 499
Migration Regulations 1994 (Cth) Sch 2, cl 500.212
Cases cited: Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Division: General Number of paragraphs: 43 Date of hearing: 21 December 2023 & 18 September 2024 Place: Sydney Counsel for the Applicants: Mr C Honnery Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 244 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHREE KUMAR TAMANG
First Applicant
GANGA MAYA TAMANG
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 8 January 2019 in case number 1711371.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
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 LAING:
The applicants seek judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Student (Temporary) (Class TU) visas (student visas).
BACKGROUND
The applicants are Nepalese nationals who applied for the student visas that are the subject of these proceedings on 8 March 2017. The first applicant (Applicant) sought to meet the primary criteria. The second applicant, his wife, applied as a member of the family unit.
On 10 May 2017, the Delegate refused the application on the basis that the Applicant did not meet cl 500.212(a) (genuine temporary entrant criterion) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
On 29 May 2017, the applicants applied for review by the Tribunal. The applicants attended a hearing before the Tribunal on 12 September 2018.
On 8 January 2019, the Tribunal affirmed the Delegate’s decision.
RELEVANT LAW
The criterion at issue before the Tribunal was cl 500.212 of Schedule 2 to the Regulations, which provided:
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant's circumstances; and
(ii) the applicant's immigration history; and
(iii)if the applicant is a minor - the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant's record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant's stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
In considering whether the Applicant satisfied cl 500.212(a), the Tribunal was required to have regard to Direction No. 69 – Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications (Direction No. 69), which was made under s 499 of the Migration Act 1958 (Cth) (Act). Direction No. 69 required the Tribunal to have regard to a number of factors relating to:
(a)the Applicant’s circumstances in his home country, potential circumstances in Australia and the value of the course to his future;
(b)the Applicant’s immigration history; and
(c)any other relevant information.
Direction No. 69 indicated that it was not to be used as a checklist, but stated that the “listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion”.
THE TRIBUNAL’S DECISION
The Tribunal summarised the background to the matter and the evidence before it, as well as the criterion in issue and the effect of Direction No. 69, at [1]-[33] of its decision. At [34], the Tribunal found that the Applicant did not satisfy the genuine temporary entrant criterion.
The Tribunal reasoned as follows at [35]-[38]:
35.I am not persuaded by the applicant’s explanation as to why he ceased study in the Certificate IV in Commercial Cookery course following the refusal of his application for the subclass 500 visa in May 2017, as there was no statutory requirement or visa condition requiring him to so do. The applicant claims he discontinued his studies, stayed at home and became isolated and depressed because he couldn’t think about the future because of the refusal of his visa application. The medical evidence in support of the applicant’s claim he was psychologically unable to study, in the period from August 2017 to September 2018, consists of a receipt for an initial consultation with a [medical information omitted].
36.After reviewing the available evidence, I am not satisfied the applicant has provided a credible reason as to why he ceased the study which he had previously claimed was necessary for him to undertake to ensure he had a viable future employment or business pathway in his home country.
37.I am concerned that there is a gap of over twelve months in the applicant’s study history, between August 2017 and October 2018, for which he has not provided a credible explanation. The Tribunal does not consider such a significant period in which the applicant has not studied is indicative of a person who is a genuine student, with a genuine intention to only remain in Australia temporarily for study purposes.
38.The Tribunal acknowledges the applicant’s claims as to why he enrolled in cooking and hospitality related courses and his related claims as to economic prospects in his home country and the benefit of undertaking courses in Australia. However I am not persuaded these factors provide a credible reason for undertaking study, which in any event he withdrew from, in courses at a significantly lower academic level than he has previously studied since his arrival in Australia in 2009. The Tribunal acknowledges the applicant’s claim he was unable to secure work as an accountant during the period he held a subclass 485 visa, however I do not accept this experience reflects similar employment prospects he would face in Nepal with this qualification. The applicant has now been in Australia for over nine years on temporary visas and the Tribunal is not convinced he lacks sufficient educational qualifications to return to Nepal and pursue employment or business opportunities there.
The Tribunal further reasoned at [39]-[41]:
39.I am not persuaded the applicant does not have an economic incentive for seeking to maintain his residency in Australia for a further two years, either from income earned by his wife or from other source. The applicant’s lack of response to the request, pursuant to s.359(2) of the Act, for financial information that may have supported his claim as to his and the second named visa applicant’s employment earnings is of further concern and I have drawn an adverse inference from the applicant’s lack of response to the request he provide this information.
40.I do accept the applicant has family ties to his home country and that his mother and grandmother hold property assets in Nepal. I also accept the applicant has no military service commitments in Nepal, nor concerns about the political situation, or civil unrest there. However, the lack of time the applicant has spent in his home country since 2009 and the significant family ties he has here in Australia gives rise to the concern he has not maintained the sort of ties with his home country that provide him with a clear incentive to return there for the foreseeable future.
41.Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
In coming to these conclusions, the Tribunal relied (inter alia) upon the fact that the Applicant had not responded to a letter sent pursuant to s 359 of the Act (RFI Letter) (at [39]).
The Tribunal found that as the Applicant did not satisfy the primary criteria for the visa, the second applicant was unable to meet the secondary criteria (at [44]).
Based upon the above, the Tribunal affirmed the Delegate’s decision (at [46]).
PROCEEDINGS BEFORE THIS COURT
The applicants commenced the current proceedings through an application filed on 7 February 2019. At the hearing of this matter, the Minister submitted that the period for response in the RFI Letter had been reasonable. The applicants complained that the Tribunal had not sent the RFI Letter to them directly and that if it had, they could have responded. The applicants complained that the RFI Letter had been sent to a migration agent (Agent), who had not notified them of the request.
Upon review of the materials after the hearing, it became apparent that the Appointment of Representative and Appointment of Authorised Recipient form in question (CB 136) was stated to appoint the Agent as the representative and authorised recipient of the Applicant. It made no reference to the second applicant. Similarly, the email to the Tribunal from the Agent annexing the form stated only that they had been appointed authorised recipient “for [the Applicant]”. No reference was made in this correspondence to the Agent being authorised in relation to the second applicant. When the matter was brought back to allow this issue to be ventilated, the Minister did not contest that the Tribunal proceeded on an incorrect understanding of whether an authorised recipient was validly appointed in respect of the second applicant. However, the Minister did not accept that this resulted in jurisdictional error.
Perceiving that the applicants would face significant challenges in addressing this point without legal assistance, and noting their submissions regarding capacity to afford such assistance, I referred the matter for pro bono assistance. That brief was accepted by Mr Chris Honnery. In result, both the applicants and the Court have had the capable assistance of a barrister appearing for the applicants. I wish to express my sincere appreciation for that assistance. I also appreciate the capable assistance that was provided by Counsel for the Minister.
Grounds raised
The applicants ultimately relied upon grounds contained in a further amended application filed on 20 September 2024, which were as follows:
1. The Tribunal’s decision is affected by legal unreasonableness because it:
a.failed to exercise its discretionary power under s 379G(2) of the Act to give its request for further information pursuant to s 359(2) of the Act (RFI) to the first applicant; and/or
b.failed to exercise its discretionary power under s 359(2) to give the second applicant the RFI by one of the methods specified in s 379A; and/or
c.failed to consider exercising its discretion to give the RFI to the second applicant directly; and/or
d.decided to finalise the review after having misunderstood the same representative had been appointed for the first and second applicants.
Particulars
a)The first applicant appointed a migration agent as his representative for the Tribunal proceeding: CB 136-137.
b)The appointment did not extend to the second applicant, such that she did not have an authorised recipient to receive documents for the purposes of s 379G of the Act.
c)On Friday 14 December 2018, the Tribunal sent an RFI in accordance with s 359(2) of the Act to the first applicant’s migration agent, who had not attended the Tribunal hearing: CB 157, 208 – 211.
d)Irrespective of the deeming effect of s 379EA of the Act, taking into account the facts and circumstances of both review applicants, the course of the particular review, and what was at stake for the applicants, it was legally unreasonable for the Tribunal to not send the RFI to either the first or second applicant directly prior to finalising its review in circumstances where:
i.The Tribunal misapprehended that the first applicant’s migration agent was also representing the second applicant: CB 209, 213;
ii.The RFI sought information from both applicants, in respect of issues relating to each of them: CB 210, 226 at [28], 228 at [39];
iii.There was a paucity of material before the Tribunal to substantiate whether the first applicant had “an economic incentive for seeking to maintain his residency in Australia for a further two years, either from income earned by his wife or from other source” (sic) (CB 228 at [39]) and the information requested would have assisted the Tribunal to arrive at the correct or preferable decision;
iv.The Tribunal’s discretionary power under s 359(2) of the Act permitted it give the second applicant documents by one of the methods specified in section 379A, and contact details such as an email and postal address had been provided in the review application: CB 115;
v.The Tribunal’s discretionary power to seek information under s 359 is guided by an obligation that the Tribunal must act in a way that is fair and just: s 357A(3) of the Act;
vi.Although the first applicant had appointed a representative, the Tribunal retained a discretionary power to give the RFI to the first applicant directly, as contemplated by s 379G(2) of the Act;
vii.The RFI was sent more than three months after the applicants’ Tribunal hearing on 12 September 2018 and requested information be provided over the Christmas period by 28 December 2018;
viii.Non-compliance with the RFI would have draconian consequences, disentitling the applicants to a further s 360 hearing.
e)In these circumstances, it was unreasonable for the Tribunal to decide to finalise its review without seeking any information from the applicants directly, especially where:
i.The Tribunal decided to finalise the review less than one month after sending the RFI (a period which spanned the Christmas and New Year period); and
ii.The Tribunal retained the power under s 359 of the Act to request information from the first or second applicant directly even after there had been no response from the first applicant’s migration agent by 28 December 2018;
iii.The Tribunal was not obliged to finalise the combined review application after the first applicant’s representative did not respond to the RFI within the allotted time: s 359C(1) of the Act.
f)If it is not accepted the Tribunal misapprehended the scope of the appointment of the first migration agent (see (d)(i) above), legal unreasonableness in any event arose because the Tribunal effectively overlooked the second applicant throughout the review process and did not consider whether to give the RFI to her directly, which can be inferred in circumstances where the Tribunal:
i.fixated on the first applicant throughout the review process and hearing (see CB 222 at [10], 224 – 226 at [13] – [28], CB 228 at [39]);
ii.referred to the first applicant losing “any entitlement he might otherwise have had under the Act to appear and give further evidence or present further arguments in support of his claim” (CB 226 at [28]) but did not engage with the consequence that the second applicant would also lose her entitlement to appear before the Tribunal to give evidence and present arguments;
iii.focused on the “applicant’s lack of response” to the RFI (CB 228 at [39]), which ignores the fact that the RFI sought information from both applicants, such as financial documentation evincing the second applicant’s income, which the Tribunal suspected could be “an economic incentive” for the first applicant to maintain his residency in Australia: CB 228 at [39];
iv.never addressed the issue of why it was not exercising its discretion to attempt to seek information from the second applicant directly, despite the RFI (when read in light of CB 228 at [39]) revealing that the Tribunal considered the review process was incomplete, and that it needed further information relating to the second applicant before it could finalise its decision.
2. The Tribunal’s decision is affected by jurisdictional error because:
a)it breached its obligations under s 360 of the Act and did not afford the second applicant a meaningful opportunity to provide evidence pertaining to issues arising in the review; and/or
b)it failed to complete its statutory task and conduct a review as contemplated by Div 5 of Part 5 of the Act.
Particulars
a)The RFI that the Tribunal sent to the first applicant’s representative on 14 December 2018 pursuant to s 359(2) of the Act raised a new issue in the review, viz. whether the first applicant has an economic incentive for seeking to maintain his residency in Australia “either from income earned by his wife or from other source”: CB 228 – 229 at [39].
b)The RFI was inadequate to discharge the Tribunal’s obligations under Div 5 of Part 5 of the Act, which required both applicants to be given a meaningful opportunity to present evidence and make arguments on all issues arising in the review.
Ground 1 – legal unreasonableness
Ground 1 contended that the Tribunal’s decision was affected by legal unreasonableness. This was contended to be because, inter alia, the Tribunal had finalised the review on the basis of a misunderstanding that the Agent had been appointed in respect of both applicants. In consequence, it was contended that the Tribunal had not exercised (or considered exercising) its discretionary power to send the RFI Letter to any personal address for correspondence that had been provided, and that remained current in respect of the second applicant.
As noted above, at the time of the directions listed after the first hearing date, the Minister did not contest that the Tribunal had proceeded on an incorrect understanding of what had occurred regarding the appointment of the Agent. However, this was contested by Counsel for the Minister at the subsequently resumed hearing. There is therefore a factual dispute regarding whether the Tribunal proceeded on this misunderstanding.
The RFI Letter had a heading that referred to both applicants. The “invitation to provide information” was stated in the covering letter to be “given to [the Agent] as the authorised recipient of the applicants” (emphasis added). The letter stated an understanding that the Tribunal was “required to give [the Agent], instead of the applicants, any document that [the Tribunal] would otherwise have given to the applicants”. It emphasised in bold an understanding that by providing the documents to the Agent, the letter was taken to have been given to the applicants (plural) and instructed the Agent to “ensure that all applicants included in the review are informed of this invitation as soon as possible” (CB 209).
The RFI Letter made clear, therefore, that it was intended to be communicated to both applicants and that it was sent under an incorrect understanding of the provisions of the Act regarding notification as they applied to the second applicant (i.e. that she had validly appointed an authorised recipient and that the Tribunal was required to give her correspondence to the Agent). Although the enclosed letter invited the Applicant to provide information, much of that information concerned financial, employment and other records concerning the second applicant.
The Minister observed that the RFI Letter had not been sent by the Tribunal Member but by an identified person “For the Registrar”. A misunderstanding on the part of the sender, therefore, did not necessarily demonstrate a misunderstanding on the part of the Tribunal as constituted in this case. The Minister observed that in recounting the sending of the RFI Letter at [28] of the Tribunal’s decision, reference had been made to it being sent to the “applicant’s representative”. It was submitted that this indicated an accurate understanding of what had occurred.
The Tribunal considered the correspondence at [28]-[29] and [39] of its decision when it stated:
28.The Tribunal wrote to applicant’s representative on 14 December 2018 regarding a request, pursuant to s.359(2), for further information, including: 12 months of account statements for any bank accounts operated jointly or individually by him and the second named visa applicant in Australia, information regarding the amount of rent he pays for the property in Mortdale where he resides with his wife, evidence of where funds to pay for his current enrolment in the Certificate IV in Commercial Cookery came from and copies of Australian Taxation Office (ATO) Notice of Assessments for him and the second named visa applicant for the 2015, 2016, 2017 and 2018 income years. The letter from the Tribunal asked that the requested information be received by the Tribunal by 28 December 2018 and that if he had difficulty complying with that request he could request an extension of time to provide the requested information. The Tribunal explained that if the requested information, or a request for an extension of time, was not received by 28 December 2018, the Tribunal may proceed to make a decision on the review without taking any further action to obtain the information and that the applicant would also lose any entitlement he might otherwise have had under the Act to appear and give further evidence or present further arguments in support of his claim.
29.The Tribunal did not receive the requested information or a request for an extension of time to provide the information by 28 December 2018 and has received no further submission or evidence from the applicant by the time of this decision…
…
39.I am not persuaded the applicant does not have an economic incentive for seeking to maintain his residency in Australia for a further two years, either from income earned by his wife or from other source. The applicant’s lack of response to the request, pursuant to s.359(2) of the Act, for financial information that may have supported his claim as to his and the second named visa applicant’s employment earnings is of further concern and I have drawn an adverse inference from the applicant’s lack of response to the request he provide this information.
Whilst these paragraphs referred primarily to the Applicant, this was consistent with the structure of the Tribunal’s decision due to its assessment, firstly and primarily, of whether the Applicant satisfied the primary criteria for the visa.
I accept the applicants’ submission that the most likely inference to be drawn is that the Tribunal was not alive to the situation of an authorised recipient only having been appointed in relation to the Applicant. Had the Tribunal identified the erroneous understanding reflected in the RFI Letter in relation to the second applicant, then I consider it likely that the Tribunal would have referred to this in its decision. This is in circumstances where:
(a)the Tribunal expressly considered the RFI Letter in some detail in its decision;
(b)the Tribunal expressly placed some significance upon the lack of response to the RFI Letter;
(c)much of the material requested in the RFI Letter concerned the second applicant’s circumstances and personal records (including taxation records);
(d)although the ability of the Applicant to meet the primary criteria was the Tribunal’s focus, the second applicant’s circumstances were considered by the Tribunal to be significant to this question;
(e)the second applicant had not simply been a passive participant in the review, but had previously actively participated (including through attending a hearing before the Tribunal); and
(f)the RFI Letter clearly stated both an intention and an understanding that the correspondence was being sent to both applicants (and, further, that it was required to be sent to both applicants through the Agent as their authorised recipient).
In these circumstances, had the misunderstanding expressly identified in the terms of the communication been identified by the Tribunal, then I consider it unlikely that it would not have been remarked upon by the Tribunal.
The question, then, is whether it was legally unreasonable for the Tribunal, in these circumstances, to have declined to exercise (or consider exercising) its discretion to utilise alternative contact details in relation to the RFI Letter before relying upon it in its decision in the manner that it did.
The Minister’s submissions provide an accurate and helpful summary of principles involved in assessing such a ground and also of the statutory context within which the Tribunal’s discretion fell to be exercised.
In relation to the statutory context:
(a)Under s 359 of the Act, the Tribunal had a discretion to “get any information that it considered relevant.” The Tribunal was able, pursuant to s 359(2), to invite a person to give information in writing. Where it did so, that invitation was required to be given by a method in s 379A: s 359(3)(a). Section 359B identified certain requirements for a written s 359 invitation.
(b)Section 359C(1) of the Act identified the consequence of, relevantly, a failure by a person to give the information requested in response to a written s 359 invitation. That is, that the Tribunal “may” make its decision without taking further action to obtain the information.
(c)Section 360(1) imposed a duty on the Tribunal to invite the applicants to a hearing. That duty ceased to apply where, relevantly, s 359C(1) applied to the applicant: s 360(2)(c). Where this occurred, “the applicant [was] not entitled to appear before the Tribunal”: s 360(3). Pursuant to s 363A, the Tribunal did not have power to permit a person to do a thing that a provision of the relevant Part stated the person was not entitled to do.
(d)Section 379A identified methods by which the Tribunal could give documents to a person other than the Secretary. They included by email: s 379A(5). Section 379C deemed the receipt of correspondence given by a s 379A method. Email correspondence was deemed to have been received at the end of the day on which the document was transmitted: s 379C(5). Section 379EA provided that: “If 2 or more persons apply for a review of a decision together, documents given to any of them in connection with the review are taken to be given to each of them.”
(e)Section 379G concerned appointment of authorised recipients. Pursuant to s 379G(1), where a person appointed an authorised recipient, the Tribunal was required to give the authorised recipient, “instead of the applicant, any document that it would otherwise have given to the applicant.” Section 379G(2) provided: “[i]f the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.”
In relation to the applicable principles regarding legal unreasonableness, the Minister emphasised the following:
(a)There is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [97] per Nettle and Gordon JJ.
(b)The standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66] per Hayne, Kiefel and Bell JJ.
(c)In determining whether a discretionary power has been exercised unreasonably, close attention must be paid to the statutory provision which confers the discretion, in its context (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [62] and [70] per Griffiths J), as well as the totality of the factual circumstances, given the fact-dependent nature of the analysis: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [48].
In the present case, I accept the applicants’ submission that the discretion miscarried in the following circumstances:
(a)significantly, I have found that the Tribunal’s exercise of discretion was premised upon an incorrect understanding that the authorised recipient had been validly appointed in relation to both applicants;
(b)although the second applicant was “deemed” to have received the correspondence pursuant to s 379EA of the Act, such deeming provisions have not avoided findings of unreasonableness in cases where this has otherwise been demonstrated by reference to the material before the Tribunal: see for example Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 (Kaur) at [123] and [138]-[141] per Mortimer J (as her Honour then was);
(c)the RFI was sent more than three months after the applicants’ Tribunal hearing and requested information be provided over the Christmas period, by 28 December 2018;
(d)non-compliance with the RFI had serious consequences, disentitling the applicants to further hearing under s 360 of the Act;
(e)as in Kaur, the above took place in circumstances where the applicants had a history of active engagement in the proceedings before the Department and the Tribunal. The applicants had historically proven responsive to requests for information, and had both attended the Tribunal hearing; and
(f)notwithstanding this, the Tribunal exercised its discretion to finalise the review without further action less than one month after sending the RFI (a period which spanned the Christmas and New Year period).
Considering the above, had the Tribunal identified the incorrect understanding communicated in the letter regarding notification of the second applicant, then it seems likely that the Tribunal would have taken action to have corrected this through additionally sending the correspondence to the second applicant at an address for correspondence that had previously been designated. It seems unlikely that the Tribunal would have allowed the incorrect understanding and advice that was communicated in the RFI Letter to have stood, without comment, had this in fact been identified by the Tribunal. At minimum, it seems likely that this would have been taken into account by the Tribunal in its consideration of the RFI Letter.
This is notwithstanding the fact that no separate address had been specifically proposed for the second applicant in the Tribunal application form. The fact remains that the application for review proposed personal details for correspondence in respect of the review application made by both applicants. The Appointment of Representative and Appointment of Authorised Recipient form did not displace those details in relation to the second applicant.
It is also notwithstanding the fact that the Agent returned the Response to hearing invitation form signed by both applicants and did not provide any correction when the hearing invitation was sent to the Agent’s email address (apparently in relation to both applicants). Such communications did not have the effect of appointing the Agent as authorised recipient for both applicants.
I accept, as was submitted by the Minister, that these and other features of this case may tend against a finding of unreasonableness. The Tribunal received no “bounce back” or out of office response to its RFI Letter. No additional time was sought by the Agent or issue raised regarding his appointment for only one applicant. The Tribunal has no general obligation to engage in additional correspondence where it has complied with the statutory requirements for correspondence, including by reference to the deeming provisions: see for example Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [8]-[16] (Kiefel CJ). The second applicant was apparently married to and living with the Applicant. It was the Applicant who claimed to satisfy the primary criteria for the visa.
However, for the above reasons I have found that this was not the basis of the Tribunal’s exercise of discretion to decide the review in the manner that it did, and not to take further action (or consider taking further action) regarding the RFI Letter. For the reasons given above, I have found that the Tribunal acted on a misapprehension regarding appointment of the Agent as authorised recipient for the second applicant. From this, I infer that the Tribunal did not consider utilising the personal contact details in respect of the second applicant (believing, as was stated in the RFI Letter, that it had been sent pursuant to an appointment in respect of both applicants). Considering this, together with the other circumstances identified above, I have accepted the applicants’ contention that the exercise of discretion relevantly miscarried.
I accept the applicants’ submission that the Tribunal’s error in this regard was of some significance to its decision. I consider that it caused the Tribunal not to engage with material before it that was of central relevance to its decision because it identified a possible explanation for the lack of response that it had relied upon at [39]. This resulted in the Tribunal not affording, or at least not considering affording, further opportunity to the applicants that may have allowed them to allay concerns that were held by the Tribunal.
Having regard to the above, I accept the applicants’ contention that jurisdictional error has been demonstrated under ground 1.
Ground 2 – contended breach of Div 5 of Part 5 of the Act
Given my findings under ground 1, it is not strictly necessary to determine ground 2. However, I note that I have not been persuaded that this ground ought to succeed.
The provision that required a meaningful hearing in relation to the issues on the review was s 360 of the Act. The applicants were disentitled to the benefits of this provision through the cascading operation of the legislative provisions set out at [30] above. In these circumstances, I have not been persuaded that the Tribunal breached, as an operative provision, s 360 of the Act. This is even if the applicants had demonstrated, in the absence of a transcript, that the RFI Letter raised a new issue on the review.
CONCLUSION
As the applicants have succeeded under ground 1, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 November 2024
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