BFM25 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1279

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).

1. In this matter, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa.
2. After judgment was reserved in the matter, an application was made by the Minister for leave to re-open. For the following reasons, I have decided to grant that application. This will be on the understanding that the Minister will be responsible for paying any consequential listing fee(s) in the matter. I will also refer the applicant for pro bono legal assistance.

1. Leave to re-open after reservation of judgment is not to be granted lightly. It has been recognised that there is a public interest in the timely conclusion of litigation: see for example Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] per Austin J. Such public interest and case management principles are not served by allowing leave to re-open other than in exceptional cases.
2. However, it has been repeatedly emphasised that the "ultimate question" when considering leave to re-open concerns whether the interests of justice are better served by allowing or rejecting the application for leave: Frigger v Trenfield (No 7) [2020] FCA 1740 (Frigger) at [22] per Jackson J. In Frigger, the following principles were relevantly summarised at [22]-[25]:
   1. ... The power is discretionary: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 474; Commonwealth of Australia v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; (2013) 282 FLR 1 at [1578]. The ultimate question is where the interests of justice lie: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J); Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174 at [208] (Lindgren J); Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 at [26].
   2. Broadly speaking, there are four recognised classes of cases where leave to reopen may be given, although the classes are not closed: (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law: Bradshaw at [24] (Kenny J); Spotlight at [25]‑[26].
   3. Likely prejudice to the party resisting the application will be relevant: Nweiser at 478. So will the public interest in the timely conclusion of litigation: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18]. The probability that the additional evidence will affect the result is also relevant: Telstra at [209]. If success in reopening is not likely to make any difference to the outcome of the trial, that would weigh against putting the parties and the court to the delay, trouble and expenditure of resources involved in reopening.
   4. Adapting that last consideration to the present situation, I consider that it is relevant to assess the probability that the objections to evidence which the applicants seek to advance will affect the result. That requires an examination, at the threshold, of the probability that the objections will succeed. But it would not be appropriate to conduct a full examination of the merits of the objections, because to do that would be to proceed as if leave to reopen had already been given. The court is instead conducting an assessment of the probability of success as one of several discretionary factors concerning the power to reopen.

1. As the applicant has emphasised, the application for leave to re-open occurs against an unfortunate procedural background. It is unnecessary to go into the precise detail of that background, which is known to the parties. Suffice to say that there have already been delays and additional steps required in this matter (including additional hearing dates) that are attributable to human error on the part of those acting for the Minister. I accept that this has affected the applicant.
2. At the hearing of the matter that occurred on 17 March 2025, I raised what appeared to be some difficulties with the Minister's case from a legal standpoint. In particular, the Minister had sought to distinguish the case of Reddy v Minister for Immigration [2020] FCCA 15 (Reddy). In that case, a letter purporting to invite certain information under s 359 of the Migration Act 1958 (Cth) (Act) and purporting to invite comment on or response to certain information under s 359A of the Act had been sent to an applicant. The Tribunal proceeded to a decision after a response was not received within the stipulated time. It was found that this was in error, in circumstances where (inter alia) s 359A was not enlivened in relation to the purported information relied upon by the Tribunal. At [58]-[59], it was considered:
   1. While the Tribunal was entitled to issue the letter under s.359 and there was nothing preventing the Tribunal combining that request with the purported invitation to comment, purportedly under s.359A, the consequence is that the request and the invitation were intermingled. Hypothetically, on the basis of the Minister's submissions, if Mr Reddy had responded to the request for information but remained silent on the invitation to comment, he would have retained the opportunity to comment further and have a hearing. If, on the other hand, Mr Reddy had responded within time to the purported invitation to comment but remained silent on the request for information, on the Minister's case, he would have lost those opportunities. This would be, to my mind, a very strange, even absurd, outcome. The information or comment which Mr Reddy would hypothetically have provided would have been the same in either case, namely that while the relationship had broken down, he should still receive a visa on account of being a victim of family violence.
   2. The Tribunal should not be deprived of the opportunity (and obligation) to explore an allegation of family violence in relation to a partner visa application except in clear circumstances. If the Tribunal had sent two letters rather than one and received no response within time to either of them, that would have been a clear circumstance supporting the outcome contended for by the Minister. Where, however, the Tribunal has chosen to combine a request and invitation in one letter and one or other of the request or invitation were not required, the proper outcome, in my view, is that the punitive consequences of a failure to respond within time do not apply. I so find.
3. Similarly to in Reddy, in the present case a combined invitation was purportedly sent to the applicant under ss 359 and 359A of the Act. The Minister, quite properly, raised the case of Reddy for consideration. At the hearing of the matter on 17 March 2025, the Minister did not dispute the correctness of the decision in Reddy. However, the Minister argued that Reddy was distinguishable on the basis that s 359A was enlivened in the present case.
4. At the hearing, I expressed difficulty in understanding how s 359A was relevantly enlivened in this case. This was having regard to what was said in cases such as SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (SZBYR) and subsequent cases on (inter alia) the requirement that "information", for the purposes of s 359A of the Act, contain "in its terms_"_ a "rejection, denial or undermining" of an applicant's claims to be entitled to the grant of the visa.
5. I also queried whether the Minister wished to give further consideration to pressing the argument made, given the potential implications for the broader caseload if it were accepted. In circumstances where the Minister did not challenge the decision in Reddy, I queried whether the Minister pressed the argument regarding why s 359A was said to be enlivened.
6. After the discussion in question, the Minister's Counsel sought "an opportunity to seek instructions about whether or not the Minister would like to press this case". This was said to be able to occur by the end of the week. As procedural orders were not sought in this regard, I reserved my decision, but indicated that judgment in the matter would not be handed down before the end of the week. This was on the understanding that, if the Minister pressed his position, then the substantive submissions before the Court would not change. If the Minister did not press his position and orders conceding the matter were proposed, then the question of leave to re-open would be a relatively simple one.
7. On the Friday of that week, on 21 March 2025, an email was received through which the Minister sought a timetable for further submissions. It was expressed that if the Court were not "minded to make" the proposed orders, then it was sought that the matter be listed for directions. The proposed content of the submissions was not specified. However, the email indicated that it related to the issue of the Tribunal's correspondence purportedly sent under both ss 359 and 359A of the Act.
8. An email was sent in response by my Associate on 25 March 2025. The email observed that it was unclear what further submissions the Minister proposed to rely upon and whether the applicant's consent to the proposal had been sought or obtained. It was queried, given that judgment had been reserved at the hearing, whether leave to re-open was sought. The Minister responded on 4 April 2025, indicating that the applicant's consent would be sought and, if it were not forthcoming, the Minister would advise if an application to re-open were proposed. After some chasing on the part of my Associate, on 19 May 2025 the Minister advised that a consent position had not been achieved and sought for the matter to be relisted.
9. At the directions listing on 26 May 2025, effort was made to explain the situation to the applicant. I was advised that neither party sought a further hearing in the matter. In consequence, a timetable was set for determination of the Minister's application for leave to re-open and the balance of the matter on the papers. In subsequent correspondence, it appeared that there was some confusion on the part of the applicant regarding this process. The matter was therefore listed on 2 June 2025, to allow further explanation and discussion. No amendment to the timetable was sought at that time.
10. An application in a proceeding, affidavit and submissions were subsequently filed by the Minister. In the submissions, the Minister's earlier arguments regarding s 359A of the Act were abandoned. The Minister accepted that it was not open to the Tribunal to have relied upon the applicant's non-response to the purported s 359A invitation. The Minister argued that, if Reddy were construed as requiring a finding of error on this basis in the present case, then that decision was plainly wrong and ought not to be followed.
11. The applicant subsequently filed what appeared to be submissions in an "affidavit" on 30 June 2025. Although those submissions objected to the Minister being granted leave to re-open, they did not engage with the Minister's legal arguments regarding Reddy.
12. There is much to commend the applicant's submission, made in her affidavit and also orally in Court, that the procedural history of this matter tends against leave to re-open being granted. As the applicant submitted, she has already had to deal with a number of procedural issues in this matter. The applicant contended that given the history of the matter, it was unfair to her to allow the Minister leave to re-open. This was in circumstances where, the applicant submitted, the Minister has had sufficient chances to make his arguments, including by reference to the decision in Reddy. The applicant submitted that the delays in this matter have affected her "mental peace". I accept that the additional procedural steps in this matter are likely to have had an effect upon the applicant. I also accept, as was submitted by the applicant, that the Minister previously disavowed challenging Reddy and did not appeal that particular decision. However, the fact that a decision has not been appealed does not prevent it from being subsequently found to be wrong (in the requisite sense).
13. There are other aspects of this matter that, in my view, favour leave to re-open being granted. I acknowledge that the Minister quite properly raised the decision in Reddy for consideration. I also acknowledge that, at the hearing of this matter, the Minister's Counsel was confronted, without notice, with a number of questions from the Bench. Those questions related to issues with arguments that had originally been pursued by the Minister, according to my understanding of cases such as SZBYR and Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197; (2021) 389 ALR 431.
14. It is understandable that the applicant, who is self-represented, did not raise such points in advance of the hearing. However, the result was that the Minister was confronted with the main legal issues to which he was required to respond on limited notice. In these circumstances, if the Minister had sought, at the hearing, additional time to respond through written submissions, that opportunity would certainly have been granted.
15. At the hearing on 17 March 2025, the Minister's Counsel did suggest at one point that further opportunity to seek instructions may be sought regarding whether the Minister wished to contend that Reddy was wrongly decided. However, I did not understand (perhaps incorrectly) that, at the hearing, further opportunity in this regard was ultimately sought to occur after the hearing in question. This was after a concern was raised at the hearing about the lateness of such an argument, if it were contemplated. The Minister's Counsel did not, in terms, seek an opportunity to be heard on the correctness of Reddy after the hearing, or to provide substantive submissions at all beyond confirmation of whether or not the Minister's s 359A argument was pressed. However, I acknowledge that the approach of reserving my decision but indicating that it would not be handed down before the end of the week may have (regrettably) generated some confusion on the part of the Minister.
16. It is unlikely that allowing the point to be raised at this stage will require consideration of additional evidence. Significantly, it appears that the point will need to be considered, in some sense, in any event. Finding jurisdictional error on the basis of the decision in Reddy would require consideration of that decision and whether it ought to be followed. For such consideration to occur, regardless of the parties' submissions on the issue, does not seem consistent with the interests of justice.
17. Whilst it would be premature to express any final view on the Minister's proposed arguments regarding Reddy, it suffices to note that they do not appear to be without substance. The Minister's arguments are based upon interpretation of the decision in Reddy, as well as ss 359, 359A, 359C and s 360 of the Act. The arguments made by the Minister regarding interpretation of those provisions appear to be reasonably available. This is in circumstances where the validity of a s 359 invitation is not, at least expressly, stated to be contingent upon the validity of a related or "intermingled" invitation. The operation of s 359C(1) of the Act is not expressed to depend upon anything other than the fact of an invitation under s 359 and non-provision of the requested information before the time for giving it has passed. This is not to say that the Minister's submissions will necessarily prevail; only that they appear to be reasonably arguable.
18. Even if the Minister's submissions regarding Reddy are ultimately accepted, such acceptance may result in other issues needing to be considered. In particular, there may be a question regarding the lawfulness of the Tribunal's exercise of discretion to determine the review in the manner that it did, in circumstances where that exercise of discretion was expressed to have been based upon a false premise i.e. an invitation sent "pursuant to s.359A of the Act" and the consequences that the Tribunal had understood to follow from the enlivenment and utilisation of that provision (at [3]-[4] of the Tribunal's decision).
19. It seems to me that it is sensible for these issues to be ventilated at first instance. The Minister has suggested that, in the event that Reddy is relied upon as requiring a finding of jurisdictional error in this matter, then the arguments sought to be raised at this stage are intended to advance the Minister's position on appeal. It seems that refusing to consider the Minister's arguments at this stage would inevitably result in an appellate Court and the applicant having to deal with them for the first time on appeal. Whilst not determinative, I am not convinced that such a course is in the interests of the administration of justice. To my mind, those interests would be better served by allowing determination of the arguments at this stage and following referral of the matter for pro-bono assistance.

1. In the particular circumstances of this matter, I am persuaded that the interests of justice are better served by allowing rather than rejecting the application for leave to re-open. However, such leave will be granted on the condition that the Minister pay any consequential listing fee(s) in the matter.
2. As indicated above, I also consider it appropriate to refer the matter for pro bono assistance. This is in circumstances where I accept that the applicant has faced challenges in this matter, which appear to have been exacerbated by a lack of representation. The submissions most recently filed by the applicant, in the form of an "affidavit", did not engage with the underlying legal arguments regarding Reddy. The applicant has, understandably, expressed some difficulty in doing so. The applicant has also expressed that she has not been able to engage a lawyer due to a lack of means. Although pro bono referrals are not made as a matter of course, I consider it fair, in the particular circumstances of this matter, for such a referral to be made. After discussion with the applicant at the most recent listing of this matter, such a referral was sought by the applicant. It was, unsurprisingly, not opposed by the Minister.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.