Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Ms Gjoni's appeal 17 Before the primary judge, the onus was on Ms Gjoni to establish that the Tribunal's decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. 18 Ms Gjoni relied on a single ground of review supported by lengthy particulars. The essence of her ground of review was that the Tribunal had failed to afford her procedural fairness in that it had not complied with s 360 of the Act. Section 360 provides: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 19 The particulars to the ground of review refer to adverse findings made by the Tribunal, concerning the ongoing enrolment status of Master Gjoni and Miss Gjoni. On the basis of those findings, the Tribunal concluded that Ms Gjoni did not satisfy the Genuine Temporary Entrant Criterion, including because it was not satisfied of the ongoing enrolment status of the children. Implicit in the ground for judicial review is a contention that the delegate's decision had not turned on questions concerning the continuity of the childrens' enrolment. The ground contended that, in the circumstances, s 360 of the Act obliged the Tribunal to conduct a hearing at which it put the issues concerning the children's ongoing enrolment to Ms Gjoni and to provide her with an opportunity to comment because she would not otherwise have apprehended the issue to arise on a review of the delegate's decision. 20 Ms Gjoni's single ground of appeal alleges that the primary judge erred in failing to give adequate reasons for dismissing the judicial review application and failed to address and determine the arguments advanced to it on her behalf. The Minister concedes that it is "open" to this Court to conclude that the primary judge did not address the ground for judicial review and (relatedly) failed to give adequate reasons. The Minister otherwise made no positive submission to the effect that the primary judge had grappled with the essence of the ground of review, and no submission that adequate reasons had been given for rejecting it. 21 As the Full Court (North, Perry and Charlesworth JJ) said in Shaw v Yarranova Pty Ltd (2017) 252 FCR 267 (at [122]) "The provision of reasons for a judicial decision is a defining characteristic which marks a court apart from other decision-making bodies: Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [67] (French CJ). See also Wainohu v New South Wales (2011) 243 CLR 181 at [55] (French CJ and Kiefel J); Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at [127] (North and Bromberg JJ)." 22 The Full Court continued: 123 A judge will be under an obligation to give reasons 'where it is necessary to enable a matter to be properly considered on appeal': Public Service Board (NSW) v Osmond (1986) 159 CLR 656 (Osmond) at 666 - 667. The reasoning of a judge should be exposed in sufficient detail to enable a losing party to understand why they lost and to enable a matter to be considered on appeal: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 441 - 442 (Meagher JA); Osmond at 666 - 667. The degree of detail should be commensurate with the degree of finality attending the decision, such that reasons for decisions finally determining the rights of the parties ought ordinarily to be expressed in more detail than those relating to interlocutory or evidentiary rulings: Hunter v Transport Accident Commission (2005) 43 MVR 130 at [22]. 124 It is, however, 'plainly unnecessary for a judge to refer to all of the evidence led in the proceedings or to indicate which of it is accepted or rejected': Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels and Clarke JJA and Hope A-JA agreeing). 125 The adequacy of reasons will depend upon the statutory context in which a decision is required to be made and the individual circumstances of the particular case, including the judicial context in which decisions are made: BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 (BKL15) at [14] - [15] (Flick J). 23 The reasons of the primary judge correctly summarised the reasons of the Tribunal. The single ground for judicial review was then set out in full. Whilst lengthy, there was no ambiguity in the ground as to the nature of the alleged jurisdictional error. 24 Curiously, in the remainder of his reasons the primary judge explained why the decision of the Tribunal was not affected by illogicality or other forms of legal unreasonableness, a ground of review upon which no reliance had been placed by Ms Gjoni. The reasons do not grapple with the contention that the Tribunal proceeded on a different factual foundation to that upon which the delegate relied and the consequences that should follow. There was no consideration of the question of whether that circumstance gave rise to an obligation to afford Ms Gjoni the opportunity to be heard in respect of the issues concerning her children's ongoing enrolment. I am satisfied that the primary judge has failed to determine the ground for judicial review and that (relatedly) the reasons for judgment do not explain why the ground was rejected. Ms Gjoni's single ground of appeal should therefore be upheld.

Notice of contention 25 The Minister relies on a notice of contention, it is expressed as follows: 1. If it is found that the learned primary judge erred in failing to give adequate reasons for its decision and to address and determine the arguments advanced to it on behalf of the appellant, that: 1.1. the Administrative Appeals Tribunal did not err or fail to comply with section 360 of the Migration Act 1958 (Cth) and thereby deny the appellant procedural fairness; or 1.2. alternatively, if there was an error, there was no realistic possibility of a different outcome to the decision of the Administrative Appeals Tribunal. 26 The notice was filed about six months outside of the time specified in r 36.24 of the Federal Court Rules 2011 (Cth), an oral application for an extension of time was made at the hearing. 27 For Ms Gjoni it was contended that the Court should not grant an extension of time and should remit the application for judicial review to the now-named Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) for determination according to law. 28 As Flick J observed in SZULE v Minister for Immigration and Border Protection [2019] FCA 2136 at [47], this Court is "routinely exposed" to judgments of the Circuit Court that are either devoid of reasons or limited to reasons that are poorly expressed. 29 In AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452, Perram J said this of the such cases (at [14]): One is confronted, then, with the situation that this Court is being called upon in the exercise of its appellate jurisdiction to decide the entirety of the matters which were for trial … in circumstances where none of the issues to be decided in this Court were ever decided in the Court below. Section 476A of the Act explicitly removes this Court's original jurisdiction in cases of this kind. Of course, the ability of this Court to hear fresh grounds of appeal or to entertain a notice of contention is not circumscribed by s 476A as they are both aspects of the Court's appellate jurisdiction. But s 476A is, I think, relevant to whether I should, by leave, permit fresh grounds and a notice of contention when to do so will mean that this Court performs the trial court's entire function. As a matter of substance, that is what s 476A appears aimed at preventing. There is this further matter, too: Pt 8 of the Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny. 30 In AXL16 v Minister for Immigration and Border Protection [2018] FCA 208, his Honour later observed (at [26]): … The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court's jurisdiction if it were routinely to carry out the Federal Circuit Court's work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 ('SZKLO') at [41] per Flick J. … 31 I am satisfied that the Court should not determine the issues agitated by the Minister's notice of contention, for the reasons that follow. 32 First, this Court does not have original jurisdiction to judicially review the decision of the Tribunal: Act, s 476, s 476A. I respectfully agree with the observations of Perram J as to the undesirability of this Court being utilised in the way agitated for by the Minister, particularly in circumstances where the appellant does not consent to that course. Ms Gjoni was entitled to have her originating application at first instance decided by the Circuit Court, being the Court having jurisdiction to adjudicate upon it, and to exercise her right of appeal to this Court and (if unsuccessful) her right to apply for special leave from this Court's judgment in its appellate jurisdiction should the application be wrongly determined. 33 Secondly, there was obvious merit in the single ground of appeal. The effect of the ground is that there has been a failure by the Circuit Court to exercise the jurisdiction conferred upon it. The Minister, having acknowledged the deficiencies in the reasons of the primary judge (and having no reasonable counter argument) was confronted with a choice: concede the appeal or urge this Court to undertake the task that the primary judge ought to have undertaken. 34 The course urged by the Minister is of course open. As Flick J observed in SZULE (at [52]): But in such cases the purity of the legislative scheme is in fact frequently sacrificed by this Court in order to ensure that justice is done as between the litigants. Considerations as to the proper administration of justice frequently dictate that an appeal should be dismissed if grounds of review are found by this Court on appeal to expose no error: e.g. CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [93], (2018) 265 FCR 572 at 599 per Collier, Markovic and Lee JJ. To remit these cases to the Circuit Court constituted by a different Judge would only be to endorse a consideration of the case by three or more Judges - one being the primary Judge who has expressed either very inadequate reasons or no reasons; the second being a Judge (or three Judges) of this Court hearing the appeal; the third being a different Judge of the Circuit Court hearing the proceeding upon remittal to that Court; and the fourth being, potentially, another Judge of this Court hearing a second appeal. Neither the party seeking review, nor the Minister, should be forced to follow such a torturous route in their quest for justice. 35 As I have mentioned, the feared tortuous route is one that was in the Minister's power to avoid, by readily conceding the appeals. In the present case I place great weight on Ms Gjoni's submissions as to what justice in her case requires. 36 Thirdly, whilst I am cognisant of the delay between the reservation of judgment and its delivery on these appeals, of itself, that delay is not a basis for denying Ms Gjoni the relief that she seeks. As I have mentioned, the Minister had the choice to concede the appeals soon after they commenced and to consent to orders remitting the originating applications for hearing and determination in accordance with the law. Instead, the Minister filed notices of contention more than six months after the appeals were commenced. Whilst it is undesirable that Ms Gjoni's immigration status presently remains unresolved this Court should not be required to prioritise the delivery of judgments in cases of this kind (at the expense of other litigants) to avoid delay of a kind that the Minister might have prevented by conceding the appeals. To the extent that it is undesirable that Ms Gjoni have the benefit of remaining in Australia for a longer period pending the exercise of her review and appeal rights, I afford that consideration little weight. 37 Fourthly, in the exercise of its appellate jurisdiction, this Court should have the benefit of reasons for judgment that fairly identify that the grounds for judicial review have been understood and setting out the reasoning process by which the review applicant's arguments have been rejected. 38 Fifthly, I do not consider the grounds for judicial review to be so obviously futile so as to outweigh all of the other considerations favouring the remittal of the originating application to the Circuit Court for determination according to law. 39 The appropriate outcome is that the application to extend time to file the notice of contention should be refused and the appeal allowed.

Miss Gjoni's appeal 40 The Tribunal held that Miss Gjoni was taken to have been notified of the delegate's decision on 6 August 2018. It concluded that the effect of s 347(1)(b) of the Act and reg 4.10 of the Regulations is that an application for review of the delegate's decision was required to be made within 21 days that is, on or before 27 August 2018. It concluded (and it is not disputed) that an application for review of the delegate's decision was lodged in the Tribunal on 28 August 2018. On 6 September 2019 the Tribunal determined that it did not have jurisdiction to decide the review application because it had been filed after the statutory deadline. 41 Before the Circuit Court there was a single ground of judicial review, expressed as follows: 1. The Tribunal has erred in finding the time by which the application to the Tribunal was to be made was 'stated' in the letter of 6 August 2018. a. Pursuant to the judgment in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64, an applicant has not been notified of the refusal and the time period in which to apply for review if the notification that 'states' the time within which such application must be lodged is obscure and confusing. b. The applicant's Class TU Student visa application was lodged on 13 March 2018 at the same time and place as an application by her brother, Luigj Gjoni. Their applications were virtually identical and concerned their enrolment in the same school in South Australia. The applications were also accompanied by an application for a Student Guardian visa by their mother Lule Gjoni who was to be the guardian for both children. The nature of the applications meant that the applicant and her parents considered their applications to be lodged jointly. c. On 6 August 2018, the applicant received the notification of the refusal of her application. The applicant's brother's application was refused on the same day, by the same case officer, and the reasons for refusal are virtually identical. However, whilst the notification letter for the applicant stated that the decision could be reviewed through an application to the Administrative Appeals Tribunal lodged within 21 days, the notification letter for the applicant's brother stated there was no right of merits review for the decision. d. A complaint was lodged with the processing office regarding the confusion between the review rights for the two applications. The processing office eventually agreed that they had made a mistake with the notification letter for the applicant's brother, and reissued this notification on 5 September 2018. However, this concession only occurred after the 21 days had passed after the initial notification letters were received, and the processing office did not reissue the notification letter for the applicant. The confusion caused by the error of the processing office in the issuance of the initial refusal notifications thereby prevented the applicant from meeting the appeal deadline. 42 In DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 the Full Court (Rares, Perram and Farrell JJ) considered the meaning of the word "state" as it appears in s 66(2)(d)(ii) of the Act. Perram J (with whom Farrell J agreed) concluded (at [62]) that a notice purportedly given to a review applicant failed to convey clearly the information that any review application had to be made by the relevant date. His Honour continued: … It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application. 43 The ground for judicial review in Miss Gjoni's case required an assessment to be made as to whether the facts asserted in [1(b)] to [1(d)] had the consequence that the notice did not "state" the time by which the review application must be made, such that the time to commence a review application had not expired. 44 Miss Gjoni's single ground of appeal is that the primary judge erred in failing to give adequate reasons for rejecting the arguments advanced on her behalf at first instance. The Minister concedes that it is "open" to this Court to find that the primary judge erred in that way. 45 The ground of appeal should be upheld. 46 The reasons of the primary judge correctly summarised the delegate's decisions and the reasons of the Tribunal. The statutory provisions upon which the Tribunal relied were also set out. The primary judge referred to SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 and DZAFH v Minister for Immigration and Border Protection [2017] FCA 984. The effect of those judgments is that there exists no statutory power in the Tribunal, or anyone else, to extend the statutory time limit fixed by s 347(1)(b) of the Act and reg 4.10 of the Regulations and that the Tribunal accordingly has no jurisdiction to hear and determine an application for review lodged outside of that time limit. The primary judge went on to state that he agreed with the decision of the Tribunal for the reasons given by it. 47 The difficulty with that conclusion is that the reasons of the Tribunal did not contain any consideration of the question raised before the primary judge, that is, whether the period in which to commence a review application had not commenced to run at all because of the facts that were said to give rise to confusion on the part of the migration agent. Nor is that question given independent consideration by the primary judge. The issue was not whether the Tribunal had the power to extend the time, the issue was whether the time had expired at all. 48 By a notice of contention, the Minister contends that this Court should nonetheless dismiss Miss Gjoni's appeal because the Tribunal did not err in finding that the time by which her application for review was to be made was stated in the notification letter of 6 August 2018. As in the case of Ms Gjoni, the Minister urges the Court to entertain arguments as to the merits of the ground of review and to undertake the task of the Circuit Court. Through her litigation guardian, Miss Gjoni opposes that course. 49 The Minister's notice of contention should be struck out for the reasons given in relation to Ms Gjoni's appeal. 50 In addition, I consider that the applications of Ms Gjoni and Miss Gjoni should travel together, given the extent of their interdependence. That is especially so given that there is at least some possibility that should the delegate's decision in relation to Ms Gjoni be ultimately set aside by the Tribunal on a remitted review hearing, there may be a basis for Miss Gjoni to then apply to a court of competent jurisdiction for declaratory relief as to whether the delegate's decision made on 5 June 2018 is void and of no legal effect (whether or not the Tribunal has jurisdiction to review it): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

Master Gjoni's appeal 51 The single ground for judicial review in Master Gjoni's case was expressed as follows: 1. The Administrative Appeals Tribunal ('the Tribunal') erred in failing to comply with s 360 of the Act (and in so doing denying the applicant procedural fairness). Particulars a. Pursuant to sc 500.217(2), the applicant was required to satisfy PIC 4012A as he was under the age of 18. This criterion may be satisfied if the application expresses a 'genuine intention' to reside in Australia with a parent or nominated relative. b. Through the lodgement of a form 157N, the applicant had nominated his mother as the proposed guardian. An associated application for a subclass 590 Student Guardian visa was also lodged by the Mother. c. Pursuant to sc 590.211 of Schedule 2 of the Migration regulations, an applicant for a Subclass 590 Student Guardian visa must be nominated by a 'nominating student'. d. Sc 590.111 provides that a 'nominating student' means a person who, at the time of decision for the applicant, holds a student visa that was granted on the basis that the person met the primary criteria for the grant of the student visa. e. Pursuant to the 'note' at sc.590.2, all criteria must be satisfied at the time a decision is made on the application. That is, a valid application for an application of this kind can be lodged in connection with an undecided Student visa application, but the application for the Student guardian visa can only be successful if the linked student visa is granted prior to a decision on the Student guardian visa. f. The Mother's Student Guardian visa was linked to the Applicant's Student visa. The Student guardian visa application was refused on 5 June 2018. g. Whilst the ongoing enrolment of the applicant was raised in the delegate's decision on the Student Guardian visa, this was not relied on by delegate to refuse the application. The primary factors relied on in refusing the application were the adverse inferences drawn from the applicant's immigration history and a lack of evidence of significant incentives to return to Italy. h. A delegate of the Department then requested that applicant provide evidence of an alternate means of welfare. The visa application was subsequently refused on the basis that no suitable welfare arrangements were identified. No adverse finding was made regarding course enrolment. i. Applications to the Administrative appeals Tribunal for review of the respective refusals of the applicant and his mother were lodged. The Tribunal ostensibly sought to deal with these applications concurrently and invited the applicant and his mother to attend a hearing on 30 September 2019. j. Submissions and supporting documents supplied by the applicant were primarily directed at the mother's intentions in Australia and incentives to return. It was also contended that the applicant had 'applied for a proper course in the Cricos RTO by providing all the relevant documentation is [sic] required by law'. It is therefore plain that the applicant was not aware that the enrolment was in dispute. k. The mother's refusal decision was affirmed by the Tribunal before a decision was made on the applicant's matter. In refusing the mother's application, the Tribunal applied Ministerial Direction No. 69 Assessing the genuine temporary entrant criterion for student and student guardian visa applications. In doing so, the Tribunal made a number of adverse findings regarding the study plans of the son without putting the Applicant or his mother on notice that this issue was in contention. l. The ongoing enrolment of the applicant is an essential eligibility requirement for his application. This is a time of decision criterion. m. The Tribunal has therefore processed the associated applications in way that prevented the possibility of a successful outcome. In processing the Guardian application first, and refusing this (without notice) on the basis of insufficient evidence of enrolment, and then refusing the applicant's student visa application on the basis that the Guardian visa had been refused, the Tribunal has effectively created a paradoxical 'catch-22' situation that has denied the applicant procedural fairness. a. In the premises, the Tribunal did not comply with s 360 of the Migration Act. b. If the Tribunal had instead given notice to the applicant and his mother that his ongoing enrolment was in contention, and that this would impact on the ability of his mother to provide the guardianship required under PIC4012A, there is a realistic possibility that: i. the Applicant would have been able to respond to the proposed findings; ii. the Tribunal would not have made the proposed findings; and iii. the Tribunal would not have affirmed the decision under review. 52 The primary judge observed that by orders made by him that same day, Ms Gjoni's application for judicial review had been dismissed. It followed, according to the primary judge, that Master Gjoni could not satisfy the Welfare Criterion. 53 The reasons of the primary judge did not deal with the complaint that Master Gjoni had not been given notice that the delegate's decision not to grant his mother a Guardian visa would be upheld by the Tribunal on the basis of adverse findings concerning his own ongoing enrolment. It is unclear what the primary judge made of the "Catch 22" argument advanced within the ground of review, because it was simply not dealt with. 54 True it is that Master Gjoni declined an opportunity to appear at a hearing before the Tribunal. However, the ground of review asserts that Master Gjoni had not been put on notice that adverse findings concerning his enrolment (not made by the delegate) might be made such that his mother's review application would be dismissed in a way that was fatal to his own application. I should not be understood to be expressing a view as to the merits of the "Catch 22" argument as I understand it to be. It is sufficient to observe that the reasons of the primary judge are inadequate because argument advanced in particular (b) of the review ground was not given any attention at all. 55 The reasons of the primary judge went on to state (at [12]) that the decision of the Tribunal was not irrational or illogical, and that it was not otherwise legally unreasonable (at [13]). Those two paragraphs were expressed in identical terms to two paragraphs contained in the reasons for judgment published in relation to Ms Gjoni's application. As with Ms Gjoni's application, there was no reliance in Master Gjoni's case upon principles concerning illogicality or legal unreasonableness. That only serves to reinforce my view that the primary judge did not address the ground for judicial review before him, but instead devoted his reasons for judgment to issues that did not properly arise, and even then in a way that appears to involve pasting words from one judgment to another. 56 The Minister's notice of contention in Master Gjoni's matter should be struck out for the reasons given in relation to Miss Gjoni's appeal.

Relief 57 There will be orders allowing each appeal, setting aside the orders of the primary judge in each case and remitting the applications for judicial review to the Circuit Court (differently constituted) for determination in accordance with the law. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.