**MIGRATION** - judicial review - visitor visa -- where the applicant alleges the Tribunal failed to consider relevant material - no jurisdictional error disclosed - application dismissed - costs
Source
Original judgment source is linked above.
Catchwords
**MIGRATION** - judicial review - visitor visa -- where the applicant alleges the Tribunal failed to consider relevant material - no jurisdictional error disclosed - application dismissed - costs
Judgment (8 paragraphs)
[1]
The application for judicial review advanced the following grounds (without alteration):
I am aware that my application for a visitor visa was lodged when I was not the holder of a substantive visa but still within 28 days.
My circumstances were beyond my control and I provided a letter from my Aunt explaining why the visa application was not lodged on time because my Aunt was diagnosed with COVID-19 with her family.
Contrary to the Tribunal's information I have submitted a letter from my Aunt which was sent from Officeworks and the Tribunal overlooked the information.
I do not agree with the decision of the Tribunal and ask the honourable Court to remit the case back to the Tribunal for a better consideration.
[2]
By ground one, taken at its highest, the applicant appears to contend that the Tribunal failed to consider that he had lodged the visa application within 28 days of his last substantive visa ceasing or that the Tribunal had misapplied the law in his case.
At the hearing, the applicant said he had relied on his aunt to lodge the visa application, but he believed he would still be granted the visa because the application was lodged within 28 days of his last visa ceasing.
As submitted by the Minister, this ground misconceives the legislative scheme. The requirement in cl 600.223(2)(b) requires that if the applicant was in Australia at the time of application and did not hold a substantive visa, then the applicant must satisfy the criteria in Schedule 3 to the Regulations, including cl 3004. I accept that there was no scope for the applicant to satisfy this requirement only on the basis that he last held a substantive visa within 28 days of making the visa application.
The requirement that the visa application be lodged within 28 days of 'the relevant day', being the last day on which the applicant held a substantive visa, would have been relevant to whether the applicant satisfied the requirement in cl 3001 of Schedule 3 to the Regulations. However, in addition to cl 3001, cl 600.223(2)(b) also required the applicant to satisfy cls 3003, 3004, and 3005.
As the applicant had lodged his visa application within 28 days of his last substantive visa ceasing, he had satisfied the requirement of cl 3001. However, this was not the requirement in issue before the Tribunal. The issue on which the applicant's case turned was whether he was not the holder of a substantive visa because of factors beyond his control, as required by cl 3004(c).
The Tribunal, for the reasons it gave, was not satisfied that the applicant satisfied the requirement in cl 3004(c). Accordingly, it found that the applicant did not meet cl 3004 of Schedule 3 the Regulations and, as such, he did not satisfy cl 600.223(2)(b) for the grant of the visa.
The Tribunal did not misapply the law in this case, nor was it required to consider (and make findings about) whether or not the applicant lodged the visa application within 28 days.
Ground one does not disclose a jurisdictional error on behalf of the Tribunal.
[3]
By ground two the applicant contends there were circumstances beyond his control, and that he had provided a document (a letter from his aunt) which explains why his application was not lodged on time.
At the hearing, the applicant said his aunt had provided a letter to the Tribunal explaining the circumstances which led to his application being lodged late. I observed that the Tribunal's decision indicates that, despite time being granted for him to provide further supporting documents, no evidence had been received by the Tribunal from him or his aunt. The applicant said he sent it to the Tribunal's mailbox, and he was not sure why the Tribunal had not received it.
There is no evidence before the Court which suggests that the letter from the applicant's aunt was before the Tribunal when it made its decision. No error is established by the Tribunal not considering evidence that was not before it when it made its decision.
To the extent that the applicant is asking the Court to take into account the reasons set out in his aunt's letter for why the visa application was not lodged before his last substantive visa ceased, this effectively invites the Court to engage in impermissible merits review. This Court has no jurisdiction to consider for itself whether or not there were factors beyond the applicant's control which led to his application not being lodged whilst he held a substantive visa: Wu Shan Liang.
Ground two does not disclose jurisdictional error on the part of the Tribunal.
[4]
By ground three the applicant further contends that the Tribunal overlooked the documentation he claims to have provided to demonstrate there were circumstances outside of his control for why he did not apply for the visa when he was the holder of a substantive visa.
As I have already stated, there is no evidence before me to support the applicant's claim that he had submitted any material to the Tribunal from his aunt. Whilst the Tribunal indicated that, at the hearing, it had discussed with the applicant the provision of further evidence from his aunt (at [22]-[29]), the Tribunal expressly noted in its reasons that it did not receive any further information or submissions from the applicant, nor did the applicant request further time to provide the information to the Tribunal: at [31].
The Tribunal cannot be said to have overlooked material that was not before it.
Ground three does not disclose a jurisdictional error on the part of the Tribunal.
[5]
By ground four, the applicant merely expresses his disagreement with the Tribunal's decision.
As submitted by the Minister, this is not a proper ground of judicial review. This Court has no jurisdiction to remit a matter for reconsideration by the Tribunal unless jurisdictional error can be established.
Having considered the Tribunal's decision, I am unable to identify any jurisdictional error, whether in the decision itself or in the decision‑making process. The Tribunal, when making its decision, considered the evidence before it, including the oral evidence given by the applicant at the hearing. The applicant was also provided with the opportunity to present further evidence to substantiate his claims that factors existed which were beyond his control. Whilst the applicant claims to have provided a supporting document (the letter from his aunt) to the Tribunal, it is evident from the Tribunal's reasons that neither the letter (or any other supporting evidence) had been received, and no evidence has been provided by the applicant to demonstrate that the letter was in fact sent and would have been received by the Tribunal by the time it made its decision. In the circumstances where the Tribunal had not received any supporting evidence from the applicant within the timeframe provided, it was not unreasonable for it to proceed to a decision on the evidence before it. The Tribunal's reasons for not being satisfied there were factors beyond the applicant's control that prevented him from making a visa application before his last substantive visa ceased were cogent and comprehensive.
As neither the Tribunal's decision nor the processes by which the decision was made discloses jurisdictional error, there is no basis to conclude that the Tribunal committed a jurisdictional error.
[6]
As no jurisdictional error has been established, the application for judicial review must be dismissed.
[7]
At the hearing, the Minister sought an order that the applicant pay their costs fixed in the amount of $6,100.00. When invited to make submissions with respect to costs, the applicant did not challenge the Minister's application or the amount sought, only stating that he was unable to pay. Financial hardship is generally not a reason for not making an order as to costs.
I am satisfied that costs should follow the event. Further, having regard to the work undertaken and the scale costs for a standard migration matter, I will order that the applicant pay the amount sought by the Minister.
[8]
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.
Parties
Applicant/Plaintiff:
Youssef
Respondent/Defendant:
Minister for Immigration and Citizenship [2026] FedCFamC2G 451
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Cases Cited (4)
The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia(2003) 211 CLR 476.
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [3] the High Court per Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ, explained that: