CTS15 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1289

1. It is well established that a finding of legal unreasonableness is not lightly made. As Mortimer CJ stated recently in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; (2023) 297 FCR 162 (Lieu) at [81]:

To reach a conclusion that an exercise of power is legally unreasonable involves a level of confidence on judicial review that either the outcome of the exercise of power, or the reasoning that led to that outcome (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]) so departed from the underlying premises of the exercise of public power that it has resulted in the power entirely miscarrying, in effect being an abuse of power. See generally Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (SZVFW) at [80] (Nettle and Gordon JJ). In this context, the term "abuse" of power refers to an exercise of power other than for the purposes and within the limits conferred.

1. As to assessing whether there is legal unreasonableness in a Tribunal decision, in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (Stretton) at [11] Allsop CJ (as part of the majority) defined that task as follows:

The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

1. In Stretton Allsop CJ held that the correct question or perspective is,

...not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter.

1. In determining whether an administrative decision is vitiated by legal unreasonableness, it is also essential to bear in mind that the Court's jurisdiction is strictly supervisory, and does not involve the Court reviewing the merits or substituting its own view as to how the discretion should be exercised: see Perry J in BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [43].
2. On 14 October 2021, the Tribunal wrote to the applicant making, amongst other things, a request to the applicant under s 359A to comment on information that would be a reason or part of the reason for affirming the decision under review (s 359A request). The applicant requested an extension of time on 26 October 2021 to respond to the Tribunal's s 359A request. This request was made so that the applicant could "properly make arrangements to resolve the debts [to the Commonwealth] I am owing".
3. The Department did not respond in writing to the applicant's request for an extension of time, nor did it grant an extension.
4. As submitted by the first respondent, in written submissions dated and filed on 28 October 2021, the applicant addressed the s 359A request and told the Tribunal, amongst other things, she had "taken reasonable steps to repay my commonwealth debts". These submissions were filed within the time required for a response to the s 359A request.
5. The Tribunal discussed the applicant's request for a grant of an extension was discussed at paragraph [18] and [49] of its decision. At [18] it said:

On 26 October 2021 the applicant wrote to the Tribunal and asked for an extension of time to provide information under s.359(2) of the Act and comment on or respond to information under s.359A of the Act. The applicant wrote that she would like 14 days to make arrangements to address the information that was raised under s.359A of the Act. The Tribunal considered this request but was not persuaded to grant an extension of time. The Tribunal's reason for not granting the extension of time to comment on or respond to information is detailed later in this decision record.

The applicant wrote to the Tribunal and asked for an extension of 14 days to comment on or respond to this information. She claimed that she needed time to properly make arrangements for the payment of this debt and attached a copy of correspondence she sent to the department about entering into a payment plan. The Tribunal did not agree to postpone the due date for comment about this information, because there would be nothing stopping the applicant from continuing to make those arrangements prior to the Tribunal hearing.

1. The Tribunal went on in paragraph [50] it concluded:

The applicant commented on the information that she had a debt of $13,645.00 in her submission dated 28 October 2021. She wrote that she had taken reasonable steps to pay her debt, without detailing what these steps were, but the Tribunal understands that the applicant was probably referring to the copies of correspondence she sent to the department about the debt when she applied for an extension of time to comment on the debt.

1. The evidence shows that the applicant responded to the s 359A request within the time that was required in the request. The evidence is clear the applicant not only made written submissions on, amongst other things, the issue of the Commonwealth debts she owed, which was identified as an issue in the s 359 request, but paragraph [57] of the Tribunal's decision shows that the applicant was given an opportunity to give evidence at the hearing on the issue. At [57] the Tribunal said:

Concerning the outstanding debt to the Commonwealth, the applicant said that she had written a letter to the department offering to pay $200 per month but has not received a reply. She told the Tribunal that if the department did not agree to this payment plan, she would pay $5,000.00 because she has that money with her. The applicant said she had not made any payments yet because she had not received a response to her payment plan request. The Tribunal asked the applicant why she had not done anything about this debt so far. She claimed that she did not know that she had this debt until the Tribunal wrote to her in October 2021 about this. The Tribunal queried the truthfulness of this, given the applicant declared in the medical treatment visa application form in 2019 that she had debts. She then said that she did not know she had to pay it. It was when she took the October 2021 letter to Sankar, he told her she needed to pay that debt.

1. Despite the Tribunal not replying in writing to the applicant's request for an extension of time, in the last sentence of paragraph [49], the Tribunal gave what I consider was an evident and intelligible justification for its decision not to grant any extension of time in response to the applicant's request, even though such an extension was not needed in any event, namely: that there would be nothing stopping the applicant from continuing to make those arrangements prior to the Tribunal hearing.
2. Bearing in mind the high bar for a finding of legal unreasonableness, I do not consider that the Tribunal's decision or findings regarding the issue of the applicant commenting, or giving evidence, on the issue of her outstanding debts to the Commonwealth, as identified in the s 359A request, to have been legal unreasonable.
3. Ground 1 does not establish the Tribunal committed jurisdictional error.

1. In this ground, the applicant argues that the Tribunal failed to consider relevant information or consideration provided to the AAT in support of her submission related her intention to stay temporarily. In particular, it failed to consider the applicant's claim in her written submissions dated 28 October 2021 that: (i) she 'substantially' complied with the Regulations; and (ii) her intention to stay temporarily.
2. The first respondent submits it is clear from the Tribunal's written reasons that it did consider all the evidence and documents before it, including the two matters referred to in this ground of review. I agree for the following reasons.
3. In paragraphs [26]-[57] the Tribunal sets out all of the applicant's evidence including the written submissions dated 28 October 2021.
4. In paragraphs [46]-[47], the Tribunal summarised the applicant's written submissions in respect to cl 602.215(1)(b)-(c):
   1. The applicant also provided a written submission dated 28 October 2021 where she claimed to meet the criteria for clause 602.215. She claimed to have provided significant volumes of medical information concerning her protection claims and drew the Tribunal's attention to the fact that her medical issues had not commenced with her medical treatment visa application.
   2. In that letter she stated that there was no evidence that she had failed to comply substantially with any previous visa conditions and she asserted that she had done so. She also claimed that the medical treatment visa would be subject to conditions 8101, 8102 and 8503. She asserted that she would not breach condition 8102 because there was no evidence to suggest she would study. She wrote that if she was unable to get work rights, she would seek financial help from the Tamil community, which the Tribunal understands the applicant to mean that she would comply with condition 8101. The applicant did not directly state that she would comply with condition 8503 but wrote later in the submission that she had a 'genuine undertaking to leave the country' because she 'understood that the medical treatment visa is temporary' and that she has an 'obligation to leave at the end of the medical treatment.' She claimed, among other things, that her seeking protection should not adversely affect an assessment of her intention to stay in Australia temporarily for medical treatment, as she will not seek protection again.
5. These paragraphs demonstrate that the Tribunal considered her submissions dated 28 October 2021 comprehensively. Despite these submissions, the Tribunal found at [67]:

...The Tribunal is satisfied that has demonstrated a past indifference to her migration obligations, and the failure of the applicant to depart Australia during periods where she was an unlawful noncitizen due to her own inaction demonstrates a willingness to ignore the requirement that any person who does not hold a visa to remain in Australia is to depart. The Tribunal is satisfied that this remains the applicant's attitude, and that in the event that the medical treatment visa was granted and expired, the applicant would not leave Australia.

The Tribunal is satisfied based on the applicant's migration history that she is either unwilling or unable to depart Australia

1. It was open on the evidence before the Tribunal to find that the applicant would not leave Australia if the visa was granted based on her past indifference to her migration obligations and to conclude that she did not have an intention to stay in Australia temporarily. These were factual findings which this Court is not permitted to review in applications under s 476 of the Act: Djokovic. Mere disagreement with Tribunal findings is not an arguable ground of jurisdictional error: CQG15 v Minister for Immigration and Border Protection ([2016] FCAFC 146; 2016) 253 FCR 496; at [61] per McKerracher, Griffiths and Rangiah JJ.
2. Ground 2 does not establish the Tribunal committed jurisdictional error.

1. Section 359A(1) and (4) provides:

(1) Subject to subsections (2) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(4) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non‑disclosable information.

1. In this matter the exception in s 359A(4)(b) applies.
2. The applicant provided the delegate's decision to the Tribunal as part of its application for review: see Court Book page 96. Consequently, the applicant's immigration history was "information" in the delegate's decision that the applicant gave the Tribunal for the purpose of the application for review. Accordingly, it was not "information" which enlivened a duty to invite comment pursuant to s 359A(4)(b) of the Act.
3. Ground 3 does not establish the Tribunal committed jurisdictional error.

1. In ground 4, the applicant argues that the Tribunal failed to consider or advise the applicant about the existence of a s 375A certificate.
2. As the first respondent submits this ground is misconceived. There was no s 375A certificate issued (or in existence) in this matter.
3. Ground 4 does not establish the Tribunal committed jurisdictional error.

1. For the reasons outlined above, the applicant has not established that the Tribunal's decision is affected by jurisdictional error. Nor have I discerned any jurisdictional error from my own review of the decision, noting the Court's obligations as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58], [77], [100], [112], [113] and [114].
2. The application is dismissed.

1. The first respondent has sought an order that the applicant pay the first respondent's costs in the amount of $5,400. The amount sought is below the scale amount under Item 3 in Schedule 2, Part 2, of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I consider the amount sought is fair and reasonable given the nature of these types of matters. I will order that the applicant pay the first respondent's costs in the amount of $5,400.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.