Thalakoppula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 401
•24 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thalakoppula v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 401
File number(s): MLG 788 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 24 March 2025 Catchwords: MIGRATION – Student (Subclass 500) visa –– application for judicial review – whether Tribunal failed to provide the applicant a meaningful hearing under by s 360 of the Migration Act 1958 (Cth) – evidence of access to funds - cl 500.214 of Sch 2 of the Migration Regulations 1994 (Cth) – amended application dismissed. Legislation: Migration Act 1958 (Cth) ss 360(1)
Migration Regulations 1994 (Cth) Sch 2 cls 500.214, 500.211-500.218, 500.214(2), 500.213(3), cl 500.214(3)
Migration (LIN 19/198: Evidence of financial capacity -Subclass 500 Visa and Subclass 590 Visa) Instrument 2019 (Cth) ss 6(2), 6(3)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 9.03(2)
Cases cited: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 71
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; [2003] FCAFC 126
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Parikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1239
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of last submission/s: 25 February 2025 Date of hearing: 25 February 2025 Place: Melbourne Solicitor for the Applicant: The applicants appeared self-represented Counsel for the Respondents: Mr J Barrington Solicitor for the Respondents: MinterEllison ORDERS
MLG 788 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VARUN THALAKOPPULA
First Applicant
DIVYA THALAKOPPULA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
24 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The amended application for judicial review dated 31 January 2025 be dismissed.
4.The applicants pay the first respondent’s costs and disbursement of and incidental to the proceeding fixed in the amount of $5,900.00.
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 CORBETT
By an application for judicial review filed 6 March 2020, the applicants sought judicial review of a decision of the second respondent (Tribunal) made 6 February 2020 to affirm the decision of a delegate of the first respondent (Minister) made 6 July 2018 to refuse to grant the first applicant a Student (Class TU) (Subclass 500) visa (visa).
By an amended application dated 31 January 2025, the applicants sought to confine the grounds of review to one ground of review, namely that the Tribunal failed to provide a meaningful hearing to the applicants as required by s 360(1) of the Migration Act 1958 (Cth) (Act).
Reference in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit “R2”.
BACKGROUND
The applicants are Indian citizens (CB19). The second applicant is the wife of the first applicant (CB 20-1).
On 1 May 2018, the applicants lodged the application for the visa (CB 17-55). The first applicant sought to study a Diploma of Project Management at the Universal Institute of Technology. The application for the visa was refused by the delegate because the first applicant did not satisfy the primary criteria in cl 500.214 of Sch 2 of the Migration Regulations 1994 (Cth) (Regulations) (CB 73-4).
The primary criteria for the grant of the visa are set out in cl 500.211 to cl 500.218 of the Regulations. Clause 500.214 provides as follows:
500.214
(1)The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a)the costs and expenses of the applicant during the applicant's intended stay in Australia; and
(b)the costs and expenses of each member of the applicant's family unit (if any) who will be in Australia.
(3)If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
(4)The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
The relevant legislative instrument for the purposes of subclauses 3 and 4 of cl 500.214 of Sch 2 of the Regulations was LIN 19/198 (CB 166–78).
On 7 June 2018, the Minister’s Department wrote to the first applicant and requested that he provide information for consideration within 28 days of the letter. The Department requested the first applicant to provide evidence of funds that were sufficient to meet expenses totalling $36,890.00 to cover the applicant’s course fees, living costs, and travel costs during the first 12 months of the applicants’ intended stay in Australia. The Department explained that evidence of financial capacity could be provided through money deposits with a financial institution, a loan with a financial institution, government loans, a scholarship or financial support (CB 60-6) (Delegate’s letter).
On 6 July 2018, a delegate of the Minister refused to grant the visa (CB 73-6). The visa was refused on the basis that the first applicant did not satisfy the requirements of cl 500.214 because the first applicant failed to provide evidence that he had genuine access to sufficient funds to meet costs and expenses during the applicants’ stay in Australia (CB 74).
On 25 July 2018, the applicants applied to the Tribunal to review the delegate’s decision (CB 77-8). The central issue to be determined on the review was whether the applicants satisfied the primary criteria for the visa (in particular the criteria in cl 500.214 of Sch 2 of the Regulations).
TRIBUNAL’S DECISION
On 20 January 2020, the Tribunal invited the applicants to attend a hearing on 6 February 2020 to give evidence and present arguments (CB 94) (Invitation letter). The Invitation letter requested that seven days before the hearing date, the applicants provide either:
· Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
OR
· Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds.
Attached to the invitation letter was a ’Response to hearing invitation - MR Division’ form (Form MR 19) to be completed and returned to the Tribunal by 27 January 2020 (CB 100-2). The Invitation letter also purported to attach a copy of the legislative instrument LIN 19/198 (CB 95). However, the attachment was not reproduced in the Court Book and there was conjecture as to whether it was in fact sent to the applicants.
On 5 February 2020, the applicants provided the Tribunal with a bundle of financial documents which related to the finances of the second applicant’s sister, Ms Sony Vongur, which included, among other documents, Commonwealth Bank of Australia statements, a PAYG summary, a statutory declaration dated 4 February 2020, National Australia Bank statements, income statements and several letters from the Department to Ms Vongur confirming that Ms Vongur and her husband were permanent residents of Australia (CB 103-47).
On 6 February 2020, the applicants appeared before the Tribunal to give evidence and present arguments relating to the issues arising in their review application (CB 148-50). The hearing was very brief. The hearing record indicates that after a brief postponement the hearing took approximately six minutes (CB 149). The Tribunal affirmed the delegate’s decision to refuse to grant the applicants the visa and delivered written reasons that day, 6 February 2020 (Decision) (CB 156-61).
In the Decision, the Tribunal correctly identified the primary criteria in cl 500.211 to cl 500.218 in Sch 2 of the Regulations that must be satisfied by at least one applicant to qualify for the visa. The Tribunal acknowledged other members of the family unit who are applicants for the visa need only satisfy the secondary criteria, which was applicable in the circumstances of genuine access to sufficient fuds in accordance with cl 500.214 (CB 157 [7]).
The Tribunal identified that cl 500.214 required the first applicant to meet specific financial requirements, and if required to do so by the Minister, must give evidence of financial capacity that satisfies the requirements set out in a legislative instrument (cl 500.214(3) of Sch 2 of the Regulations). It acknowledged that whilst an applicant holds the visa, the primary applicant must satisfy the Tribunal that sufficient funds will be available to meet anticipated costs and expenses during their intended stay in Australia, as well as costs and expenses of any family members of their family unit in Australia (cl 500.214(2) of Sch 2 of the Regulations) (CB 157 [8]).
The Tribunal noted that the requirements for evidence of financial capacity for cl 500.213(3) are set out in LIN 19/198 (CB 157 [10]). A copy of LIN 19/198 was attached to the Decision (CB 162–78). The Tribunal confirmed that the applicants provided to the delegate a copy of a letter of offer in a Diploma of Project Management course to conclude on 12 May 2019. The letter of offer identified course fees of $7,500.00 and set out that “the amount recorded in total payable now must accompany this agreement for it to be effective”. The Tribunal noted that evidence of payment of any portion of the required tuition fees was not provided to the delegate. The Tribunal observed that a conditional letter of offer was not a Certificate of Enrolment and therefore gave it no weight (CB 158 [11]). However, the first applicant did provide a subsequent Certificate of Enrolment to the Tribunal (CB 159 [23]).
The Tribunal acknowledged that the primary applicant completed a Bachelor degree in India and had enrolled in a Master degree in Australia (CB 158 [12]). It considered that the applicant claimed, in his application for the visa, that he had financial support from his immediate family members, although did not provide any evidence to the delegate to support this statement (CB 158 [13]).
The Tribunal noted that the primary applicant did not provide a copy of the Certificate of Enrolment to the Department (CB 158 [14]). The Tribunal stated that a Certificate of Enrolment functions as proof of enrolment for the purpose of cl 500.211 and “is evidence of course fees that is an element of financial capacity as outlined in cl.6(2) of LIN 19/198 Financial Capacity Instrument for the purpose of cl 500.214” (CB 158 [15]).
The Tribunal acknowledged that the Tribunal is not an appeal forum, noting that it “brings an independent mind to these proceedings” and that the “review application is a de novo application and hearing” (CB 158 [17]).
The Tribunal then referred to the Invitation letter. In that letter, the Tribunal advised the applicants to provide all documents they sought to rely on to establish that the applicants satisfy the criteria for the visa. The Tribunal also informed the applicants that the decision made by the Department to refuse to grant the visa set out the reasons why the applicants did not meet the primary criteria, and that the applicant should have regard to those reasons in providing documents and preparing for the hearing (CB 158 [20]).
The Tribunal confirmed that it specifically asked the applicants to provide the following documents at least seven days prior to the hearing (CB 158-9 [21]):
1.A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.
2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.
3.Either:
• Documents that demonstrate you have genuine access to sufficient funds to meet your costs and expenses during your intended stay in Australia as well as the costs and expenses of each member of your family unit (if any) who will be in Australia, to pay course fees, living costs, school costs (where relevant), and travel costs over the relevant period. You must also provide evidence that the funds are of a kind specified in the relevant legislative instrument.
• OR
• Evidence of the annual income of your parents/spouse/de facto partner and that you have genuine access to those funds. Please note: any access to funds information that is from outside of Australia needs to be converted into Australian Dollars (AUD) using the following link: A copy of the conversion needs to be added to any submission with the conversion date
The Tribunal also recognised that on 20 January 2020, the Tribunal provided a copy of LIN 19/198 Financial Capacity Instrument to the applicants (CB 159 [22]). This was contested by the applicants.
The Tribunal confirmed that prior to the hearing, the applicants provided to the Tribunal a number of documents which related to Ms Vongur, including but not limited to, a Commonwealth Bank of Australia account statement, PAYG summary, Skilled 190 visas granted to a Mr Moses Sundar Raj Jangam and Ms Vongur, a statutory declaration in support of the applicant, a National Australia Bank statement and payslips (CB 159-60 [23]).
The Tribunal acknowledged that the first applicant did not provide a calculation of financial capacity that established his genuine access to sufficient funds to meet the costs and expenses as set out in LIN 19/198 (CB 160 [26]). It also considered that the bank account statements show account balances in aggregate of $14,382.53 and found that this figure did not satisfy s 6(2) of LIN 19/19 (CB 160 [28]).
The Tribunal acknowledged the statutory declaration of Ms Vongur in which she promised to financially support her brother-in-law and her sister but noted that the documents produced by the applicants did not provide bank statements or documents from a financial institution that demonstrated sufficient funds amounting to $37,174.00 (CB 160 [29]), which was the figure calculated by the Tribunal as the threshold figure under LIN 19/198. It found that the documents relating to PAYG summaries and income statements in Ms Vongur’s name were not relevant to financial capacity as outlined in s 6(3) of LIN 19/198 as “they were not official government documentation of personal income issued in the 12 months immediately before the application and demonstrate that the “primary applicant’s parent, spouse or de facto partner has an personal annual income…” (emphasis added)” (CB 160 [30]). The documents related to the personal annual income of the first applicant’s sister-in-law (CB 160 [30]).
The Tribunal found that the first applicant had not provided evidence of genuine access to funds to the amount of $37,174.00 as required by LIN 19/198 and on this basis, the Tribunal was not satisfied that the first applicant met cl 500.214(3), and therefore cl 500.214 of Sch 2 of the Regulations (CB 160 [32]-[33]). The Tribunal affirmed the delegate’s decision not to grant the visa.
PROCEEDINGS IN THIS COURT
On 6 March 2020, the applicants filed an application for judicial review in this Court (CB 2-5). The application was supported by a brief affidavit affirmed by the first applicant claiming that he had been denied natural justice (CB 8-9).
On 31 January 2025, the solicitors for the applicants filed an amended application for judicial review and outline of submissions. The application for judicial review set out the following ground of review (verbatim):
1.The Administrative Appeals Tribunal (“Tribunal”) failed to provide the applicant a meaningful hearing as required by s 360 of the Migration Act 1958 (Cth) (‘the Act’).
1.1The Tribunal was required to consider whether it could decide the review in the applicant’s favour on the basis of the material before it per s 360(2)(a), prior to inviting the applicant to attend a hearing under s 360(1).
1.2Having decided that it could not decide the review in the applicant’s favour on the basis of the material before it, including the documents listed at para [23] of the Tribunal’s decision, the Tribunal was obliged to invite the applicant to appear to ‘give evidence and present arguments relating to the issues arising in relation to the decision under review’.
1.3The issue on the review was whether the applicant had genuine access to the funds required to be shown for his Student visa per legislative instrument LIN 19/198.
1.4The Applicant had provided purported evidence of genuine access to the funds required to be shown for his Student (subclass 500) visa in the form of a statutory declaration by his Australian sister-in-law, pay slips of his sister-in-law and PAYG summaries and income statements of his sister-in-law.
1.5Whether a person is on notice of the relevant issues depends on the entirely of the circumstances, including the applicant’s ability to comprehend the matter and whether they are represented, per CPW16 v MIBP [2017] FCA 1210 at [26].
1.6Here, the applicant was not represented, and while the Tribunal is not required to notify the applicant of all defects in evidence, the Tribunal’s failure to draw the applicant’s attention to the fact that his evidence fundamentally did not comply with LIN 19/198 deprived the applicant of any meaningful oral hearing.
1.7It is plain from a review of the transcript of the hearing (annexed at KA-1 of affidavit of Ms Karyn Anderson) that the applicant laboured under the misapprehension that he had provided evidence which would put the Tribunal in a position to find that cl. 500.214(3) was met.
1.8It cannot be said that had the Tribunal advised the applicant that it was not satisfied that the applicant could meet the genuine access to funds requirement for a Student visa based on the evidence provided, that there is not a realistic possibility the applicant may have been able to provide additional or different evidence affecting the outcome.
1.9The Tribunal thus deprived the applicant of a meaningful hearing under s 360.
The amended application for judicial review was supported by an affidavit of Ms Karyn Anderson, the solicitor for the applicants, affirmed 31 January 2025 which annexed a transcript of the hearing before the Tribunal (Transcript). The Transcript confirmed the brevity of the hearing before the Tribunal on 6 February 2020.
No further affidavits from the applicants were filed before the hearing in this Court, despite an order that the applicants may do so on or before 31 January 2025.
The applicants also filed a written outline of submissions prepared by Counsel dated 30 January 2025. That submission very helpfully explained the applicants’ grounds of review and put in contest whether the Tribunal did in fact attach a copy of LIN 19/198 with the Invitation letter.
On 14 February 2025, the solicitors for the Minister filed a written outline of submissions in response.
On 18 February 2025, the solicitors for the applicants filed notice of withdrawal as lawyer. The notice confirmed that a notice of intention to withdrawal had been served on the applicants not less than seven days before the filing the notice (r 9.03(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules)).
The hearing of the application for judicial review took place before this Court at Melbourne on 25 February 2025. The applicants appeared self-represented and were assisted by an interpreter fluent in the Telugu and English languages. However, both applicants had a good command of the English language, and the interpreter was not required to assist. Mr Barrington of Counsel appeared on behalf of the Minister.
The Court confirmed that the applicants received the Court Book and the Minister’s written outline of submissions filed 14 February 2025.
APPLICANTS’ SUBMISSIONS
Noting that the applicants’ former legal representatives withdrew on 18 February 2025 and the applicants were now unrepresented, the Court gave the applicants the opportunity to elaborate on their grounds of review and to inform the Court of the basis on which the Tribunal made any jurisdictional error.
To assist, the Court informed the applicants that this Court must only turn its attention to the issue of jurisdictional error by the Tribunal, and that the Court cannot conduct a merits review of the Tribunal’s decision not to grant the visa. The function of the Court is restricted to determining whether the Tribunal made a material jurisdictional error arriving at the Decision.
The Court prompted the applicants to tender the Affidavit of Karyn Anderson affirmed 31 January 2025, which was tendered and marked exhibit “A1”.
The first applicant, Mr Thalakoppula, submitted that he had a very short period of time to submit the documents requested by the Tribunal and that this was the reason why he could not obtain all the documents he might have needed from other sources before the Tribunal hearing.
The applicants also sought to rely on bank statements from an account in India as evidence of their current financial position. The Court informed the applicants that it could not consider or accept the bank statements as relevant evidence for the purpose of judicial review and reiterated that the function of the Court was limited to looking at the evidence that was presented to the Tribunal and on which the Decision was made.
The first applicant submitted that when he appeared before the Tribunal, “I was nervous, I couldn’t talk to the judge [Tribunal member] properly and couldn’t communicate with him, if he would’ve explained the problem…”. The Court inquired what problem the applicant referred to.
In response, the second applicant, Mrs Thalakoppula, informed the Court that they had “confusion about the funds” and that it was not properly communicated to them that only certain family members were eligible to provide proof of access to funds. She further submitted that the hearing before the Tribunal was only five minutes long, that the applicants tried to ask the Tribunal member questions and that they were “trying to process it but didn’t have enough time”.
The Court inquired why the applicants selected Ms Vongur to provide evidence of access to suitable funds. In response, Mrs Thalakoppula submitted, “it was not clear that she can’t support us…because she is in the same country, in Sydney…it was not properly communicated…she was able to assist us at that time…she had multiple accounts, it was not clear that all of it needed to be submitted and so she submitted only some of it”. Mr Thalakoppula submitted that the applicants could have sought assistance from his parents “to release funds” and that “they were able to do it, but not on time”.
Mrs Thalakoppula submitted to the Court that they received “very short notice” to provide the evidence. She stated that at the time of the review application, she had suffered a miscarriage and that “it was too much” for the applicants and was “not a good experience”.
In the outline of written submissions prepared on behalf of the applicants dated 30 January 2025, the applicants also submitted that they had been denied a real and meaningful hearing that was procedurally fair by the Tribunal. It was submitted that the Tribunal was required to “identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” (see SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (SZBEL)).
It was submitted that the hearing before the Tribunal was very short, that the applicants had been told some wrong information (namely that the deposit for the first applicant’s proposed course had not been paid) and the Decision contained a typographical error (in calculating the annual living costs of the second applicant the Tribunal used the figure $7,632.00 and not $7,362.00 as required by LIN 98/198 Pt 2 cl 6). The Tribunal also did not draw to the applicants’ attention the fact that reliance upon familial support from relatives that were not a parent, spouse or de facto partner was not acceptable under the legislative instrument. It was submitted that had the applicants been notified of this irregularity they could have requested an adjournment so as to arrange their financial affairs to meet the statutory requirements. This was a failure to notify the applicants of an issue in the review and a failure to afford the applicants a fair hearing.
MINISTER’S SUBMISSIONS
Mr Barrington formally read the affidavit of Alexandra Clare O’Grady affirmed 13 February 2025, which was tendered and marked exhibit “R1”. That affidavit deposed to the issue of whether a copy of LIN 19/198 was in fact attached to the Invitation letter.
Mr Barrington submitted that the applicant’s single ground of review could be addressed in two ways: firstly, the affidavit of Alexandra Clare O’Grady affirmed 13 February 2025 demonstrated that the legislative instrument was in fact sent by the Tribunal to the applicants, and secondly, even if the Tribunal failed to provide the legislative instrument to the applicants, it was not obliged or required to do so. The hearing provided by the Tribunal was meaningful because the issue to be determined was clear from the delegate’s decision and correspondence, namely whether the first applicant could satisfy the financial criteria in cl 500.214 and LIN 19/198.
Firstly, Counsel submitted that the evidence in Ms O’Grady’s affidavit confirmed that the Tribunal’s email to the applicants dated 20 January 2020 (CB 92) enclosed two documents Those documents were described as ‘18214786-807087’ and ‘1821478-6806936’. Ms O’Grady’s affidavit confirmed that one of the attachments to the email was the Invitation letter, a fact sheet titled “Information sheet MR18: Information about hearings – MR Division” and a ‘Form MR19: Response to hearing invitation – MR Division’. The other attachment was an ‘Instrument dated 4 October 2019’ (Exhibit R1, Ann AO04) which was a copy of LIN 19/198. Mr Barrington submitted that, contrary to the applicants’ submissions, the affidavit confirmed that the Tribunal in fact sent a copy of LIN 19/198 to the applicants with the Invitation letter and that provision of that document was sufficient to discharge any allegation that the Tribunal did not provide a meaningful hearing or identify to the applicants the issues to be considered.
Mr Barrington submitted that the Tribunal had no obligation to inform the applicants about the need to provide evidence to satisfy LIN 19/198. He submitted that the criteria for a Student (Subclass 500) visa was apparent from the terms of the Regulations and that this was sufficient to discharge any obligation of procedural fairness. He contended that principles of procedural fairness do not require decision-makers to alert applicants to the terms within the relevant statute, which is an obvious proposition and one that is also applicable to issues emanating from other legislative instruments. Mr Barrington referred the Court to the cases of Sasan v Minister for Minister for immigration, Citizenship and Multicultural Affairs [2021] FCCA 1696 per Judge Given (Sasan) and Doan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 405 per Judge Riley (Doan), which was upheld on appeal in Doan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 71 at [47] per Anderson J (Doan 2).
Mr Barrington submitted that the principles of procedural fairness operated in the same way identified in Doan. Particularly, the decision-maker is not required to inform the applicants of the evidence they are required to demonstrate because it is apparent from the legislative instrument itself. Counsel for the Minister read Doan at paragraph [23] in which her Honour said:
[23] In the present case, the terms of the statutory power, being the Regulations, clearly required family violence to be proved in specified ways. It follows that the Tribunal did not need to spell out for the applicant what was required to prove her claim of family violence. It is immaterial that the relevant regulations and IMMI 12/116 were long and detailed and required careful reading. They were clear.
Counsel for the Minister submitted that although the legislative instrument may be confusing to a lay person, it makes clear the necessary evidence that must be provided by an applicant to satisfy the criteria for the visa sought.
Mr Barrington then referred the Court to the Delegate’s letter to the applicants dated 7 June 2019 (CB 60). It was submitted that the Delegate’s letter clearly stated that evidence of funds was required, identified examples of how to demonstrate financial capacity, and specifically stated that the applicants needed to demonstrate access to at least $36,890.00 (CB 65).
The Court acknowledged that the transcript of the Tribunal hearing indicated that the hearing was brief and that the inadequacy of the evidence was not squarely put to the applicants at the hearing. The Court noted that the hearing comprised discussion of what had been provided to the Tribunal, however, the Tribunal did not advise the applicants that this information was insufficient or that the legislative instrument required much more from the applicants. The Court invited Mr Barrington’s views on the way in which the Tribunal hearing was conducted. In response, Counsel for the Minister accepted the Court’s observations, noting that no error arose from the Tribunal’s conduct as the issue before it was whether the applicants had evidence of access to funds to meet the criteria set out in LIN 19/198. It was submitted that the Tribunal was not required to put to the applicants that the information provided was insufficient under LIN 19/198.
Counsel further submitted that the Tribunal informed the applicants that the legislative instrument required certain evidence in certain forms, and that it was not the Tribunal’s role to provide advice to the applicants on the information supplied to it (see Doan 2 at paragraph [49] per Anderson J). Rather, the Tribunal’s role is to give notice of the relevant issues, and it was up to the applicants to take advantage of that notice. Mr Barrington referred to the Minister’s outline of submissions which also stated, among other submissions, that it was not the Tribunal’s responsibility to check the documents, determine whether they were sufficient, and then give the applicants advice about those documents.
The Court invited Mr Barrington’s submissions on whether the Tribunal member’s conduct was unreasonable, noting that this ground was not expressly alleged by the applicants in their application. Counsel for the Minister submitted that the Decision was not unreasonable for several reasons. Firstly, the applicants did not indicate to the Tribunal that they required an adjournment or that they required more time to obtain evidence of financial capacity. The applicants had notice of the relevant issues for more than 18 months between the Delegate’s letter on 7 June 2018 (CB 60), and the hearing before the Tribunal on 6 February 2020 (CB 148). In the Delegate’s letter to the applicants on 7 June 2018 (CB 60-6), it was made clear to the applicants what they needed to submit, however, the applicants did not provide any materials, and this resulted in the delegate refusing to grant the visa (CB 74). Had the applicants provided any materials or information, the delegate could have advised the applicants accordingly on what more was required of them. Mr Barrington submitted that the applicants failed to provide the requested materials and as such, there was nothing before the delegate to assess. Therefore, Mr Barrington contended that there was nothing unreasonable about the approach adopted by the Tribunal as the issues were clear from the decision under review.
At the conclusion of the Minister’s submissions, Mr Barrington tendered the Court Book which was marked exhibit “R2”.
REPLY
The Court summarised the submissions made on behalf of the Minister and invited any further comments from the applicants. In response, Mrs Thalakoppula submitted “I am a normal person, not a lawyer, I haven’t studied and am not smart to know the legalities…I did not have any help to understand the documents…even when the judge was reading questions…six minutes is not enough time for people that don’t understand terminology or legalities”. She further submitted “we need help…we shouldn’t be in this position…we needed a little bit of understanding”.
The Court informed the applicants that the Minister referred to several cases which find that the Tribunal was not required to alert them to the requirements of the Regulations and legislative instrument. The applicants were unable to comment, however, Mrs Thalakoppula said, “if he had just given us a clear understanding or try to make us aware, we could’ve given the statements back then…we were not given any opportunity to present them or understand”.
CONSIDERATION
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; [2003] FCAFC 126 at [33] (SCAR) a Full Court of the Federal Court (Gray, Cooper and Selway JJ) said when considering s 425 of the Act (which is in substantially the same terms as s 360 of the Act):
[33] Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
At [38] in SCAR, the Court also said:
[38] It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal’s jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a ‘jurisdictional error’.
The task of this Court is to determine if the Tribunal made a jurisdictional error in reaching the Decision. “Jurisdictional error on the part of a statutory decision-maker in making a decision may include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying the wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness” (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [3]).
Here, the applicants submit that the Tribunal erred in the requirement of procedural fairness by failing to provide a meaningful hearing and that the hearing at which the applicants appeared was in effect a hollow shell or empty gesture because they did not understand the issues critical to the Decision and were not made aware of them either before or at the hearing.
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1 (Alphaone) the Full Court of the Federal Court said (per Northrop, Miles and French JJ):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
This was cited with approval by the High Court in SZBEL at [32]. The question to be answered is whether the applicants had the opportunity of ascertaining the relevant issues to be determined by the Tribunal and were informed of the statutory criteria that the Tribunal was required to consider.
Another passage from Alphaone cited with approval by the High Court in SZBEL at [29] is as follows:
[29] Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)
This passage was referred to in the outline of submissions prepared on behalf of the applicants dated 30 January 2025. This passage also encapsulates the Minister’s primary submission that the issues critical to the Decision were apparent to the applicants from the delegate’s decision and the Invitation letter, and they were given a fair opportunity to address those issues but did not. There was no obligation to draw any critical issue to the applicants’ attention because they were also apparent from the Regulations and LIN 19/198.
The facts in this case are very similar to the decision of Judge Kendall in Parikh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1239 (Parikh). However, in that case, the applicants having received an invitation letter from the Tribunal in the same terms as the Invitation letter did not provide any information to the Tribunal. The Tribunal affirmed the decision of the delegate not to grant the applicant a student visa. The applicant sought judicial review by the then Federal Circuit Court. One of the grounds of review was that the Tribunal did not afford the applicant procedural fairness. At paragraph [54] of that decision his Honour held that the Tribunal afforded the applicant procedural fairness. His Honour said at [54]:
[54] Here, the Court is satisfied that the Tribunal afforded the applicant procedural fairness. Specifically:
(a)the Tribunal did not exercise the powers under s 359, 359A or 359AA of the Act to get information or invite the applicant to comment or respond to information. There was no error in this approach. It was the applicant’s responsibility to provide the evidence he needed to satisfy the Tribunal that he met the relevant criterion: Abebe v The Commonwealth [1999] HCA 14. The only information before the Tribunal (which was minimal) was information the applicant had provided;
(b)the Tribunal invited the applicant to attend a hearing and he did so. That hearing was five minutes in length. While short, the Tribunal’s decision demonstrates that the applicant did participate. He provided evidence about his enrolment status during the course of the hearing (at [18]-[19]). Accordingly, the Tribunal complied with s 360 of the Act;
(c)the dispositive issue before the Tribunal (i.e., the lack of evidence to demonstrate genuine access to funds) was the same issue which proved determinative before the delegate and which led to the delegate to refuse the visa. Accordingly, no error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises here;
(d)the hearing proceeded by telephone. The Tribunal is empowered to allow an appearance by this method (the Act, s 366) and there is nothing to suggest that the applicant was prejudiced by the Tribunal proceeding in this way. The applicant was given an opportunity to object to the hearing proceeding by the telephone and did not do so (CB 39);
(e)there is nothing to indicate that the applicant requested an adjournment or additional time such that the Tribunal was required to exercise a discretion; and
(f)the Tribunal listened to the applicant and actively sought further information from him about his enrolment status. There is nothing to suggest that the Tribunal was anything but impartial and unbiased: SZRUI.
In this application, similar findings can be made. They are:
(a)The applicants were aware from the Delegate’s letter dated 7 June 2018 (CB 60-7) that the first applicant was required to provide satisfactory evidence of funds to support himself and all family members during the 12 months of stay in Australia and that he must demonstrate capacity to access $36,890 (CB 65).
(b)The delegate’s decision to refuse to grant the visa was because the first applicant did not satisfy the criteria in the Regulations in particular cl 500.214 (CB 74) and this was because the first applicant did not provide any evidence as requested.
(c)The Tribunal requested in the Invitation letter (and in an acknowledgment letter dated 25 July 2018 (CB 84-91)) that the first applicant provide documents that demonstrate he had genuine access to sufficient funds to meet costs and expenses during his intended stay and evidence that the funds are of a kind specified in LIN 19/198 (CB 94) (a copy of which I find was attached to the Invitation letter). The Invitation letter also indicated that evidence of access to sufficient funds could be satisfied by providing evidence of income of “your parents/spouse/de facto partner” (CB 94).
(d)The Tribunal invited the applicants to a hearing and the applicants attended the hearing. The hearing before the Tribunal was very short (six minutes) and the member did not identify the critical issues or notify the applicants that the documentary evidence provided was inadequate, but there was no error of a kind such as in SZBEL. Both applicants were given the opportunity to give evidence and provide further documents (see Exhibit A1, Transcript p 6). The only information before the Tribunal was information provided by the applicants.
(e)The Tribunal did identify to the applicants that the member had calculated the sum of expenses that the first applicant was required to have proof in the sum of $37,174.00 and the first applicant agreed (Exhibit A1, Transcript p 4).
(f)The dispositive issue before the Tribunal was the same issue which proved determinative before the delegate, and which had led the delegate to refuse the visa.
(g)The applicants did not object to the Tribunal proceeding as it did, did not seek further time to produce documents or seek an adjournment to provide further evidence that was available to them but could not be accessed in the time available.
(h)The applicants did not complain that they did not understand the process or that they had not received the legislative instrument referred to in the Invitation letter. The applicants also did not file any further affidavits deposing that they did not receive LIN 19/198 or as to their confusion as to the statutory task to be performed by the delegate and the Tribunal.
(i)The Tribunal complied with s 360 of the Act by inviting the applicants to appear at a hearing at which they could give evidence and present arguments and alerting them in the Invitation letter to the requirement of proof.
The Tribunal hearing was brief and if it had been more substantive, may have avoided the criticism now made by the applicants and in their written submissions. The hearing was not a hollow shell or empty gesture, but it was cursory. The Transcript reveals that the member confirmed that the documents presented were the totality of the evidence to be relied upon. If there was further evidence available, the onus was on the applicants to either produce them or seek more time, which they did not do. It was the first applicant’s responsibility to provide the evidence he needed to satisfy the Tribunal that he met the relevant criterion, and it was not for the Tribunal to advise the first applicant if they were adequate (see Doan No 2 at paragraph [49]).
The applicants also complain that they were given only a short period of time to provide documentation to the Tribunal confirming their financial means. The Invitation letter was sent on 20 January 2020 with the hearing to take place on 6 February 2020. On one view, that gave the applicant’s only 14 days within which to compile evidence. That was a short period but not unreasonable when viewed in the context of the application for the visa which was made in May 2018, the delegate’s request for information in May 2018 (CB 57-8), the Delegate’s letter in June 2018 (CB 60-7), the delegate’s decision in July 2018 (CB 70–6) and the letter of acknowledgment from the Tribunal in July 2018 (CB 84-5) which invited the applicants to provide information to be considered by the Tribunal as soon as possible. When viewed in that context, the time within which to obtain evidence was more than 18 months. In the circumstances, the Tribunal did not act unreasonably in requiring the applicants to provide evidence within 14 days of the Invitation letter and the applicants did not seek more time or an adjournment to supplement the documents provided.
The applicants were also self-represented at the hearing before the Tribunal and for most of the course of this proceeding. They did, however, have assistance to prepare an amended application, written submissions and submit the affidavit of Ms Anderson affirmed 31 January 2025 that annexed the Transcript. The Regulations and legislative instrument are not easy for a lay person to navigate or understand, but there was ample information provided by both the delegate and the Tribunal to assist with the evidentiary requirements to meet the statutory requirements of cl 500.214 of Sch 2 of the Regulations.
For the sake of completeness, the Court also finds that the legislative instrument was attached with the Invitation letter to the email sent to the applicants by the Tribunal on 20 January 2020 (CB 92). The affidavit of Ms O’Grady (Exhibit R1) discloses that inquiries were made of the Department to confirm the content of the email, and that confirmation revealed that LIN 19/198 was attached to the email. There is no reason to dispute that evidence or now question it, especially when the applicants do not say on oath or affirmation that they did not receive it.
The Court also rejected the applicants attempt to tender further evidence of their financial means. That was because that evidence was not relevant to the task of judicial review. In MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] per Gordon J (MZXLD), the Federal Court observed as follows:
[11] The resistance to the admission of fresh evidence in judicial review proceedings is well established by the authorities: see Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77-78 (per Brennan J); Servos v Repatriation Commission (1995) FCR 377 at 385-386 (per Spender J); Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [29]- [31] (per Spender, Madgwick and Finkelstein JJ); and SZINB v Minister for Immigration and Multicultural Affairs [2006] FCA 1627 at [23] (per Cowdroy J). The function of judicial review is a process by which legal error might be corrected, leaving the primary decision maker as wholly responsible for determining questions of fact or the merits of any application. The danger in acceding to a request to admit further evidence on review is that the court will necessarily need to revisit findings of fact: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The material ruled inadmissible was ruled inadmissible because it was material which post-dated the Decision and which effectively invited the Court to undertake impermissible merits review (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 at [55] per Reeves, Robertson and Rangiah JJ and MZXLD at [10] per Gordon J).
Noting that the applicant appeared before this Court without legal assistance, the Court also scrutinised the Decision for jurisdictional error after considering the materials in the Court Book and the applicant’s oral submissions (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [15], [77], [100], [112]-[114]). The Court raised with Counsel for the Minister whether the Decision could be considered irrational, illogical or unreasonable due to the cursory nature of the hearing, the erroneous reference to the non-payment of a deposit for the proposed course of study (when in fact a deposit had been paid) and the minor mathematical error alluded to by the applicants in the written submissions prepared for them. Mr Barrington submitted that there was nothing illogical, irrational or unreasonable about the reasoning disclosed in the Decision. It could not be said that no reasonable mind could have reached the same decision on the evidence and simply because minds may differ as to the appropriate disposition, that did not make the Decision irrational or unreasonable. The errors were minor and not material to the conclusions reached in the Decision. The conclusion reached was that there was no evidence to satisfy the criteria for the visa.
As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] and [131]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Decision was not irrational, illogical or unreasonable. It cannot be said that no rational or reasonable decision maker could have reached the same conclusion or state of satisfaction on the evidence presented. There was also no failure to afford procedural fairness to the applicants by the Tribunal as the issues to be addressed by the applicants and the evidence required were apparent before the hearing and from the Regulations. The amended application for judicial review is dismissed.
COSTS
At the conclusion of the Minister’s submissions, Mr Barrington submitted that in the event that the application for judicial review is dismissed that the applicants be ordered to pay the Minister’s costs fixed in the sum of $5,900.00.
OTHER MATTERS
Mr Barrington informed the Court that the name of the first respondent should be amended to Minister for Immigration and Multicultural Affairs. Pursuant to r 7.01 of the Rules, the name of the first respondent and the title to this proceeding shall be amended accordingly.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
The name of the second respondent be amended to ‘Administrative Review Tribunal’.
The amended application for judicial review filed 31 January 2025 be dismissed.
The applicants pay the first respondent’s costs and disbursement of and incidental to the proceeding fixed in the amount of $5,900.00.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 24 March 2025
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