Valu v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 94
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 94
File number(s): SYG 1768 of 2020 Judgment of: JUDGE SKAROS Date of judgment: 31 January 2025 Catchwords: MIGRATION – Judicial Review – Partner Visa – Applicant not the holder of a substantive visa at the time of or 28 days before application – where Tribunal did not find compelling reasons to waive that requirement – application dismissed – costs awarded against the applicant and applicant’s legal representative Legislation: Migration Act 1958 (Cth) ss 357A, 360, 360A, 362B, 366A, 368(c)
Migration Regulations 1994 sch 2 cl 820.211(2)(d), sch 3
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 22.06
Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Kioa v West (1985) 159 CLR 550
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510
Singh v Minister for Home Affairs [2019] FCAFC 3
SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189
SZMIG v Minister for Immigration and Citizenship [2008] FCA 368
SZRMQ v Minister for Immigration and Border Protection (2013) FCR 212
WaensilavMinister for Immigration and Border Protection (2016) 241 FCR 121; [2016] FCAFC 32
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 10 December 2024 Place: Parramatta Solicitor for the Applicant: The applicant was represented by a solicitor whose name has been anonymised. Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: Submitting appearance save as to costs. ORDERS
SYG 1768 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FINAU SOSIFA VALU
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The amended application filed on 3 December 2024 is dismissed.
3.Pursuant to r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 the Applicant’s legal representative is to pay the First Respondent’s costs in the fixed amount of $2980.
4.The Applicant is to pay the First Respondent’s costs in the fixed amount of $5391.
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 SKAROS:
INTRODUCTION
By application filed on 22 July 2020 (and amended on 3 December 2024), the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) (as it then was) dated 18 June 2020. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) refusing to grant the applicant a Partner (Temporary) (Class UK) visa (the visa).
BACKGROUND
The applicant is a citizen of Tonga who arrived in Australia on 8 December 2008 on a Business (Short Stay) subclass 456 visa which ceased on 8 March 2009.
The applicant remained in Australia as an unlawful non-citizen until he was granted a Bridging E visa on 6 May 2010, and a series of Bridging E visas until 5 October 2010, after which he became an unlawful non-citizen again. On 20 July 2015, the applicant was granted a further Bridging E visa.
On 28 July 2015, the applicant applied for the visa on the basis of his relationship with his sponsor, Ms Latu, who is an Australian citizen. The applicant and Ms Latu claimed to have first met on 25 October 2011 and were married on 12 February 2013.
On 11 February 2016, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(d) of Schedule 2 to the Regulations, which relevantly required him to meet Schedule 3 criterion 3001 unless the Minister was satisfied that there are compelling reasons for not applying the criterion.
The applicant was not validly notified of the delegate’s decision until 23 January 2018, as the initial notification letter was defective.
On 20 February 2018, the applicant sought review of the delegate’s decision with the Tribunal.
On 29 May 2020, the Tribunal wrote to the applicant inviting him to appear before the Tribunal on 17 June 2020. On 10 June 2020, the applicant’s representative returned a completed response to hearing invitation form, which was signed by the applicant.
The form indicated that the applicant would not be participating in the scheduled hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. It also indicated that the applicant’s sponsor, Ms Latu, would not be attending the hearing, but that the representative, Mr Ngyuen, would be attending the hearing.
The applicant’s representative provided various supporting statements, photographs and other documents as evidence of the relationship. Also provided were statutory declarations from the applicant and his sponsor. In his statutory declaration, the applicant said he was not good at talking and so he asked his migration agent to ‘go to court’ and speak on his behalf.
On 18 June 2020, the Tribunal affirmed the decision of the delegate not to grant the visa.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether there were any compelling reasons for not applying the Schedule 3 criteria.
The Tribunal noted that the applicant's last substantive visa expired on 8 March 2009, over six years prior to the applicant applying for the visa. The Tribunal found that the application for the visa was lodged outside the prescribed period of 28 days from the relevant day, that is, the last day he held a substantive visa. As such, the Tribunal found that the applicant did not satisfy criterion 3001 of Schedule 3.
The Tribunal set out the case law relevant to the expression of ‘compelling reasons’ at [22] of its decision. The Tribunal considered the evidence before it and made the following findings:
(a)The Tribunal acknowledged the applicant’s evidence that life would be harder in Tonga, but did not consider that the applicant would face any harm or persecution if he were to return to Tongo to apply for a partner visa offshore.
(b)The Tribunal accepted that the applicant may experience financial difficulties in Tonga but did not consider that they would be substantial enough to constitute a compelling reason for not applying the Schedule 3 criteria.
(c)The Tribunal considered several character references provided by the applicant attesting to his good character. The Tribunal found that the applicant deliberately failed to engage with the Department at any time until he applied for the current visa, undermining his claim of good character. Regardless, the Tribunal was not satisfied that good character constituted a compelling reason for not applying Schedule 3 criteria.
(d)The Tribunal did not accept that the applicant’s involvement with the Tongan community and Church of Tonga was such that he would not be adequately replaced by other members of the Tongan community and found this was not a compelling reason for not applying Schedule 3 criteria.
(e)The Tribunal considered all aspects of the relationship, including ‘the fact that the parties claim to be in a relationship, the length of the claimed relationship, the nature and the extent of the bonds between the parties, and the consequences of any separation even if only for a limited time while an offshore application is being processed’ but was not satisfied they provided a compelling reason for not applying the Schedule 3 criteria.
Ultimately, the Tribunal found that there were no compelling reasons for not applying the Schedule 3 criteria.
For these reasons, the Tribunal affirmed the decision not to grant the visa.
APPLICATION TO THIS COURT
On 22 July 2020, the applicant filed the originating application. The applicant also filed an affidavit, sworn on 21 July 2020, (the Valu Affidavit) which annexed various documents, all of which were subsequently included in the Court Book that was filed by the Minister on 29 September 2020.
Orders made by a Registrar of this Court on 3 October 2024 provided for the applicant to file and serve, at least 28 before the hearing, any amended application, submissions, and supporting evidence they sought to rely upon. The orders also provided for the Minister to file and serve, at least 14 days before the hearing, any written submissions and supporting evidence they sought to rely upon.
An amended application was filed with the Court on 23 October 2024. The applicant also filed written submissions on 25 October 2024. Both documents contained citations of cases and alleged quotes from the Tribunal’s decision which did not appear to exist.
On 11 November 2024, the Minister filed written submissions addressing the grounds raised in the amended application. The Minister also remarked that the applicant’s submissions referred to cases which did not exist and provided quotes from the Tribunal’s decision which also did not exist.
On 19 November 2024, the applicant’s legal representative (the ALR)[1] emailed the Court, without copying in the other party or seeking their consent to send the correspondence, in which he attached an amended submission, which removed the references to the non-existent cases cited in earlier submissions. The correspondence was forwarded by my Associate to the Minister’s solicitors.
[1] The Court considers it appropriate in the circumstances of this case that the applicant’s legal representative not be named.
The matter was listed for a final hearing on 25 November 2024 at the Parramatta Registry of the Court. Prior to the hearing, the listing was vacated as the Court had formed the view that a final hearing could not conveniently proceed due to the conduct of the ALR. The matter was instead listed (at the same time, date and location) for a directions hearing.
On 25 November 2024, the ALR appeared on behalf of the applicant. The applicant appeared by Microsoft Teams video and was assisted by an interpreter in the Tongan and English languages. Ms Pieri, a solicitor advocate, appeared on behalf of the Minister.
After discussion of various matters, the Court made the following orders:
(1)the matter be listed for final hearing on 10 December 2024;
(2)the applicant appear in person at the final hearing;
(3)by 2 December 2024 the Applicant to file and serve any amended application with proper particulars of the grounds of the application and written submissions addressing each ground;
(4)by 2 December 2024 the ALR to file and serve an affidavit of himself addressing how the submissions filed 25 October 2024 were generated including a full explanation as to why the submissions contained references to non-existent authorities and non-existent quotations purporting to be taken from the Administrative Appeals Tribunal’s decision;
(5)by 2 December 2024 the ALR to file and serve written submissions as to why they should not be referred to the Office of the NSW Legal Services Commissioner;
(6)by 6 December 2024 the First Respondent to file and serve any additional written submissions relevant to the substantive proceedings;
(7)by 6 December 2024 the First Respondent to file and serve any written submissions about whether the ALR should be referred to the Office of the NSW Legal Services Commissioner;
(8)the question/issue of costs of today’s listing is reserved to the conclusion of the substantive proceedings at the hearing referred to in Order 1, including the question of whether costs should be paid personally by the ALR pursuant to r 22.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (FCFCOA 2021 Rules); and
(9)liberty to apply on two days’ notice.
On 2 December 2024, in compliance with the orders (4) and (5), the ALR filed an affidavit and outline of submissions.
On 3 December 2024, the ALR filed an amended application and outline of submissions. The Court notes these were filed out of time.
On 5 December 2024, the Minister filed an outline of submissions relevant to the grounds and particulars raised in the amended application filed on 3 December 2024. The Minister also filed submissions in compliance with order (7).
The material filed in respect of orders (4), (5) and (7) relating to whether the ALR should be referred to the Office of the NSW Legal Services Commissioner will be the subject of a separate judgment.
This judgment is in respect of the applicant’s substantive judicial review application and the costs that follow from those proceedings.
On 10 December 2024, the final hearing was held at the Parramatta Registry of the Court. The ALR appeared on behalf of the applicant. Mr Riley of Counsel appeared on behalf of the Minister.
There being no objection by the Minister, leave was granted for the applicant to rely on the amended application filed on 3 December 2024.
The Court Book was tendered into evidence and marked Exhibit CB.
The applicant appeared in person and was assisted by an interpreter in the Tongan and English languages.
The Valu Affidavit was read into evidence and the Minister cross-examined the applicant.
In his evidence in chief, given by way of the Valu affidavit, the applicant said he signed the response to hearing invitation form which had been prepared by his former agent, Samuel Nguyen. The form indicated that he (the applicant) and his sponsor (Ms Latu) would not be participating in the scheduled hearing before the Tribunal. It also indicated that the agent would be participating in the hearing by attending the Tribunal’s Sydney office. The applicant said the agent did not inform him that the hearing would be by telephone. He said the agent informed him that the hearing would be about two to three hours and there was no requirement for him or his sponsor to attend and that he (the agent) would attend the hearing. The applicant said the agent had not correctly informed him of the requirement to attend the hearing, and that he had been given the wrong advice as the agent had no authority to appear on his behalf (or in his absence) at the hearing.
In cross examination, the Minister put to the applicant that he did not want to attend the Tribunal hearing as he had indicated in his statutory declaration (CB 214) ‘I am not good at talking so, I asked my migration agent to got to the court to talk for me’. The applicant gave evidence that his migration agent told him to write this and informed him that he did not have to attend the hearing because he (the agent) could go and represent him before the Tribunal. When asked if he had made any attempts to appear before the Tribunal, the applicant said no because at the time it was COVID-19 and the agent told him that the hearing would be by video and he was not aware that the hearing was by telephone. It was put to the applicant that he was aware the Tribunal would make a decision without his appearance, to which the applicant responded that he was not so aware and that he believed the agent would attend the hearing and represent him before the Tribunal.
Oral submissions were made by the parties which developed their written submissions.
CONSIDERATION
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 211 CLR 476.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.
To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [15] – [16].
Further, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The precise grounds of judicial review advanced in the amended application filed on 3 December 2024, were somewhat difficult to decipher. Nevertheless, and notwithstanding that the applicant was legally represented, the Court has sought to read the grounds as broadly as possible and has remained alert to the possibility of jurisdictional error in the Tribunal’s decision.
Ground one - error in the application of the Schedule 3 criteria
It was contended that the Tribunal misapplied the Schedule 3 criteria by unduly emphasising the applicant’s failure to meet the strict requirements, and by not taking into account the compelling circumstances, such as the length of the relationship and the difficulties that would be experienced by the applicant and the sponsor as a result of any prolonged separation.
It was also submitted that the sponsor’s past traumatic experiences should have constituted compelling reasons for waiving the Schedule 3 criteria. It was submitted the Tribunal did not properly consider the emotional and financial support the applicant and the sponsor provided one another given their long-term relationship.
It was contended that the Tribunal made a presumption that the sponsor’s family would provide sufficient support to her and disregarded the emotional and practical support the sponsor received from her intimate relationship with the applicant.
It was contended that the Tribunal did not adequately assess the evidence relevant to the applicant and the sponsor’s financial contribution to their future plans and ignored evidence which demonstrated that they intended to build a life together.
It was contended that the Tribunal failed to give adequate weight to the sponsor’s history of miscarriages, the emotional stress experienced, and the applicant and the sponsor’s desire to start a family and their long-term commitment to one another.
By the particulars set out to this ground, the applicant appears to allege several errors in the Tribunal’s decision. It is alleged that the Tribunal failed to have regard to relevant evidence, did not give sufficient weight to circumstances of significance, made assumptions which were unreasonable and failed to actively intellectually engage with the evidence. If any of these grounds of judicial review are established, it would provide a basis for concluding that the Tribunal’s decision was affected by jurisdictional error.
A fair reading of the Tribunal’s decision indicates that it understood the task it was required to undertake when considering whether there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal correctly noted at [22] that the term ‘compelling reasons’ was not defined and referred to the authorities which considered this expression. It referred to MZYPZ v Minister for Immigration and Citizenship (2012) 127 ALD 510, in which the Federal Court stated at [10]:
That subclause is addressing whether there exists a sufficient basis to move the decision-maker to waive what would otherwise be criteria which an applicant for a visa must satisfy. In that context, “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204; [2005] FCA 211 at [39] per Crennan J.
It also referred to Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 in which the Federal Court said at [24]:
There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived.
The Tribunal also understood that circumstances which constitute ‘compelling reasons’ can arise at any time, including after the visa application is made: WaensilavMinister for Immigration and Border Protection (2016) 241 FCR 121.
Having regard to judicial consideration of the expression ‘compelling reasons’, the Tribunal proceeded to consider whether the circumstances raised by the applicant constituted compelling reasons for not applying the Schedule 3 criteria.
The applicant’s complaint that the Tribunal failed to consider the length of the relationship, the financial and emotional impact of any separation and the commitment of the applicant and the sponsor to one another, including their future plans and desire to have children, is not made out.
At [32] of its decision, the Tribunal noted that the parties were married in 2013 and accepted that the duration of their marriage, which at the time was seven years, was a substantial period of time. At [34] the Tribunal considered the financial aspects of the relationship, noting that the applicant had claimed he was not working and there was no evidence before the Tribunal which indicated that the sponsor was financially dependent on him at any time. The Tribunal noted that the sponsor was employed and had financially supported herself. It noted that the sponsor was living with her parents and had their support. It noted at [35] that it had no information before it which would indicate that the sponsor was emotionally dependent on the applicant.
At [38] the Tribunal considered the effect of separation on the applicant and the sponsor’s marriage, including the application’s claim that the marriage would not survive if he had to return to Tonga. At [39] and [40], the Tribunal considered the hardship that may be experienced by the sponsor if the applicant had to return to Tonga. At [41] and [42] the Tribunal considered the evidence before it regarding the applicant and the sponsor’s plan to have a child together and the miscarriages suffered by the sponsor. Having considered the applicant and the sponsor’s circumstances individually and cumulatively, the Tribunal was not satisfied that they provided a compelling reason for not applying the Schedule 3 criteria.
A fair reading of the Tribunal’s decision discloses that it considered the applicant’s and sponsor’s circumstances and that it had regard to the evidence before it in support of those circumstances. Where the evidence was limited or was not before it, the Tribunal made a point of this in its reasons: for example, at [41] and [42] the Tribunal noted there was limited evidence of the steps taken by the applicant and the sponsor to have a child or consult a professional about their fertility issues. It also noted the limited information before it about the sponsor’s miscarriages and how they adversely impacted her.
In considering whether the reasons were sufficiently convincing or the circumstances sufficiently powerful to not apply the Schedule 3 criteria, the Tribunal was required to conduct an evaluation of the evidence before it and give reasons for its conclusions. A fair reading of the Tribunal’s decision as a whole discloses that there was an active intellectual engagement (as described by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3 at [37]), with the matters raised by the applicant. The Tribunal engaged with the reasons advanced as to why the applicant could not return to Tonga to lodge an offshore partner visa application; it referred to the evidence contained in the applicant’s and sponsor’s supporting statements, as well as the statements provided from family, friends and members of the Tongan community. Ultimately, the Tribunal was not satisfied, for the reasons it gave, that the matters raised by the applicant, individually or cumulatively, provided a compelling reason for not applying the Schedule 3 criteria.
The applicant took issue with the Tribunal’s consideration of the length of the relationship and contended that this factor, as well as the emotional and psychological hardship that would be experienced from the separation of the parties, should have been sufficient to justify the waiver of the Schedule 3 criteria. In this case, the Tribunal had regard to the length of the parties’ relationship and acknowledged that seven years was a substantial period. The Tribunal also had regard to the Explanatory Statement at [29] of its reasons, which provided examples of compelling reasons including where parties were in a long-standing relationship and a waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
Having considered the length of the relationship and the hardship that the sponsor would experience if the applicant had to return to Tonga, the Tribunal concluded that these circumstances did not provide a compelling reason for not applying the Schedule 3 criteria. In its reasons, the Tribunal considered that the sponsor had the support of her family in Australia, whom she had been living with, that she was in paid employment and financially supported herself, and that she could visit the applicant in Tonga whilst his offshore partner visa was being processed. No error is disclosed in the Tribunal’s evaluation of the circumstances. The conclusions it made were reasonably open to it on the evidence before it and for the reasons it gave.
The Court accepts, as submitted by the Minister, that the length of the relationship and the effects of separation on the sponsor, and whether these circumstances were compelling, are matters upon which reasonable minds could differ and, as such, it cannot be said that the Tribunal’s decision was illogical, irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78], [130-131].
The applicant’s complaint that the Tribunal failed to give adequate weight to the sponsor’s prior miscarriages, the emotional distress she has experienced and her desire to start a family, does not establish jurisdictional error. This is because the weight given to that evidence was a matter for the Tribunal. It is not for this Court to review the wisdom of the decision or its merits. Absent an error in the process by which it arrived at its conclusions, the Court has no power to review the factual findings of the Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] – [36].
Nothing in ground one, or its many particulars, establishes jurisdictional error on the part of the Tribunal.
Ground two – procedural fairness
The applicant contends that the Tribunal’s failure to notify the applicant of the right to apply for reinstatement under s 368C(2) of the Migration Act 1958 (Cth) (the Act) significantly compromised the fairness of the process.
The Court accepts the Minister’s submission that this ground is misconceived as the Tribunal did not dismiss the application under s 362B of the Act for non-appearance. In this case, the Tribunal was informed (via the response to hearing form) that the applicant would not be participating in the hearing and had consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear (CB 207–210). Having consented to the Tribunal making a decision on the papers, as provided for in s 360(2)(b), the applicant was not entitled to appear before the Tribunal: s 360(3). In the circumstances, the Tribunal was entitled to proceed on the basis that the applicant had consented to the Tribunal determining the review without taking any further steps to enable him to appear before it: see SZMIG v Minister for Immigration and Citizenship [2008] FCA 368 at [21] – [22].
The applicant contends that the Tribunal proceeding to make a decision, in circumstances where the Tribunal had questions that required clarification, deprived the applicant and the sponsor of a fair and meaningful opportunity to present their case, going against the principles of procedural fairness outlined in Kioa v West (1985) 159 CLR 550 at 583-585 and SZRMQ v Minister for Immigration and Border Protection (2013) FCR 212.
To the extent that the applicant alleges denial of procedural fairness by the Tribunal, the Court notes that s 357A of the Act, in respect of a Part 5 reviewable decision, provides that Division 5 of Part 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. When applying the Division, the Tribunal is required to act in a way that is fair and just: s 357A(3).
In this case, the Tribunal invited the applicant to appear before it to give evidence and present arguments. The hearing invitation appears to have complied with ss 360 and 360A of the Act. As discussed above, the applicant consented to the Tribunal making a decision on the papers without taking further steps allowing them to appear. In the circumstances, the Tribunal was authorised to proceed to a decision on the evidence before it. It cannot be said that that the Tribunal failed to comply with its obligations under the Act, nor can it be said that the Tribunal acted in a way that was not fair or just.
As to the applicant’s complaint that the Tribunal had failed to inform him that the migration agent’s representation was inappropriate, that it had failed to make inquiries as to the reasons for the applicant’s non-appearance at the hearing and it had failed to ascertain the circumstances of the applicant and the sponsor, the Court accepts the Minister’s submission that there was no legislative requirement for the Tribunal to take further steps in that regard.
While a failure to inquire may, in some circumstances, constitute jurisdictional error on the basis of a legally unreasonable exercise of a particular duty or power, this does not appear to arise in the circumstances of this case. This is because none of the matters raised by the applicant (about which the Tribunal could have made inquiries or investigated) were obvious inquiries to make about a critical fact which could have been readily ascertained and central to the issue for determination: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 cited in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [25]. The Court accepts the Minister’s submission that it was for the applicant to give the Tribunal whatever evidence he wished to rely on in support of his application for review.
A further particular, which appears in the amended application (though not expanded upon in either the ALR’s most recent written or oral submissions), is the allegation of apprehended bias on the part of the Tribunal. This allegation is said to be on the basis that the Tribunal did not engage in a fair assessment of the evidence before it and its failure to inform the applicant of his reinstatement rights.
An allegation of bias must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. No evidence has been provided to the Court to substantiate the allegation of bias on the part of the Tribunal. Nor has the Court been able to identify anything in the Tribunal’s conduct of the review or its decision which would suggest that it had prejudged the matter or may not have approached the review with a mind open to persuasion. The Tribunal’s decision reflects an active engagement of the evidence presented to it, and its conclusions as to why it was not satisfied that there was a compelling reason for not applying the Schedule 3 criteria appears open to it for the reasons it gave. There was no obligation on the Tribunal to inform the applicant of any reinstatement rights, as the matter was not dismissed for non-appearance at a hearing pursuant to s 362B of the Act.
Nothing in ground two, or its particulars, establishes jurisdictional error on the part of the Tribunal.
The advice of the agent
The Court has considered the evidence before it regarding the advice of the applicant’s former migration agent, including that which was provided by the applicant in the Valu affidavit and under cross-examination, and whether this provides a basis for setting aside the Tribunal’s decision.
The facts which are not in dispute are that the applicant was represented by a registered migration agent (Samuel Nguyen), whom he authorised to act on his behalf in relation to the review (CB 174, 178–179). The agent provided details of his migration agent registration number and contact details for the purposes of any correspondence or communication with the Tribunal. The applicant was invited by the Tribunal to appear by telephone at a hearing on 17 June 2020 to give evidence and present arguments in relation to the review. On 10 June 2020, the agent sent the response to hearing form to the Tribunal which indicated that the applicant would not be participating in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The form, however, indicated that the representative would be participating in the hearing. The form was signed by the applicant on 9 June 2020. In his statutory declaration, which was partly hand-written, the applicant stated, ‘I am not good at talking so, I ask my migration agent to go to the court to talk for me’.
Even accepting the applicant’s evidence that he was not aware the hearing would be by telephone and that he had been incorrectly advised by the agent that he (the agent) would attend the hearing on his behalf, the Court is satisfied that the applicant was well aware that the Tribunal had invited him to appear before it to give evidence and present arguments in support of his application for review. The Court is also satisfied that the applicant, having signed the response to hearing form (which indicated that he would not be participating in the hearing) and having hand-written in his statutory declaration that he had asked his agent to attend the hearing on his behalf because he was not good at talking, had consented to the Tribunal conducting the review without his appearance at the hearing. The fact that the applicant had signed the form and the statutory declaration on the advice of the agent is of no moment, as there is nothing to suggest that the applicant had no comprehension of what he was consenting to in the form or declaring in his statutory declaration.
It is also of no moment that the applicant was not aware that the hearing would be held by telephone or that he believed the migration agent would appear at the hearing on his behalf. Notwithstanding the applicant’s misunderstanding or lack of knowledge about the mode of the hearing, this did not vitiate the applicant’s consent to the Tribunal determining the review without the applicant appearing before it. As to the migration agent’s intention to participate in the hearing (as appears on the response to hearing form) and the applicant’s belief that he would so attend, the Court notes that such assistance, to which the applicant would have been entitled, could have only been provided in the presence of the applicant at the hearing: s 366A of the Act. Even accepting that the agent had provided incorrect advice about being able to appear on behalf of the applicant at the hearing, the Court accepts the Minister’s submission that any negligence by the agent would not provide a basis for setting aside the Tribunal’s decision: SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189 (SZFDE) at [53].
The applicant has not pleaded fraud on the Tribunal and there is no evidence before the Court which suggests that the migration agent had deliberately engaged in any form of dishonest conduct which stultified the Tribunal’s ability to conduct the review in compliance with its statutory obligations: See SZFDE at [51]-[52].
For these reasons, the Court is not satisfied that the advice of the agent provides a basis for setting aside the Tribunal’s decision.
Conclusion
As none of the grounds establish jurisdictional error on the part of the Tribunal, the Court must dismiss the application for judicial review.
Costs
The Minister has sought an order for costs in the amount of $8,371. This is essentially the same as the Court’s ‘scale’ amount (including GST) set out in Division 1 Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules) for migration proceedings that have concluded.
The Court considers that the ALR’s conduct, of providing citations of non-existent cases and quotes from the Tribunal’s decision which did not exist, constituted improper conduct which caused costs to be thrown away: r 22:06(1) of the Rules. The ALR’s conduct resulted in the final hearing being unable to conveniently proceed on 25 November 2024 as initially scheduled. In the circumstances, the Court considers that the ALR should bear part of the costs sought by the Minister pursuant to r 22.06 of the Rules.
At the request of the Court, the Minister was able to quantify the amount (of the costs thrown away) caused by the ALR’s conduct as $2,980. The remaining amount, being $5,391 (i.e., $8,371 less $2,980), would therefore be the costs of the applicant if the Court were to order the full amount sought by the Minister in these proceedings.
The Court invited the ALR to make submissions in relation to the amount sought by the Minister, including those sought against him personally. Other than to clarify the amounts that would be payable by him and by the applicant in the event the application was dismissed, the ALR did not challenge the amounts sought by the Minister.
Taking into account the amount of work undertaken by the Minister in relation to this matter, which included having to appear at a directions hearing, the rescheduling of the final hearing and the preparation of further submissions at short notice in response to the amended application and submissions filed by the applicant, the Court considers that the amount of $8,371 sought is reasonable.
Accordingly, the Court will order that the ALR pay, in part, the Minister’s costs fixed in the amount of $2,980 and order that the remaining costs fixed in the sum of $5,391 be paid by the applicant.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 31 January 2025
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