FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Lium [2019] FCA 1850

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 15 October 2018 be set-aside.

2A.    The application for judicial review dated 21 December 2016 be dismissed.

3.    The first respondent pay the appellant’s costs of the proceeding below in the amount of $7,206 pursuant to Rule 44.15(1) and Item 3 of Schedule 1, Part 3, Division 1 to the Federal Circuit Court Rules 2001 (Cth).

4.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Rule 39.05(e), (g) and (h) of the Federal Court Rules 2011 (Cth), the orders made on 12 November 2019 be varied to include an additional order 2A in the following terms:

“2A.    The application for judicial review dated 21 December 2016 be dismissed.”

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NICHOLAS J:

Background

1    The first respondent (“Mr Lium”) is a citizen of Malaysia who on 18 May 2016 applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) Visa. At the time he lodged that application Mr Lium was 31 years of age. Mr Lium’s application indicated that he wished to remain in Australia from 14 May 2016 to 15 May 2017 during which period he would be under medical care for a headache. The application was refused by a delegate of the Minister on 23 May 2016.

2    Mr Lium lodged an application for review with the second respondent (“the Tribunal”) on 10 June 2016. There was a hearing before the Tribunal on 5 December 2016. The Tribunal affirmed the decision under review the same day.

3    Mr Lium lodged an application for judicial review of the Tribunal’s decision with the Federal Circuit Court of Australia which was heard by the primary judge on 15 October 2018. On that date her Honour made orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.

4    Now before me is an appeal brought by the appellant (“the Minister”) against the primary judge’s orders of 15 October 2018.

The relevant statutory provisions

5    At the relevant time s 5 of the Migration Act 1958 (Cth) (“the Act”) defined “substantive visa” as follows:

substantive visa means a visa other than:

(a)    a bridging visa; or

(b)    a criminal justice visa; or

(c)    an enforcement visa.

6    Section 30(2) of the Act also provided:

(2)    A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

(a)    during a specified period; or

(b)    until a specified event happens; or

(c)    while the holder has a specified status.

7    The requirements that Mr Lium had to satisfy to obtain the medical treatment visa he sought were found in cl 602.212 and cl 602.213 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly, these provided:

602.212

(1)    The requirements in one of subclauses (2) to (8) are met.

Medical treatment

(2)    All of the following requirements are met:

(a)    the applicant seeks to obtain medical treatment (including consultation), other than treatment for the purposes of surrogate motherhood, in Australia;

   (b)    arrangements have been concluded to carry out the treatment;

   (c)    if the treatment is an organ transplant:

(i)    the donor of the relevant organ is accompanying the applicant to Australia; or

(ii)    all requisite arrangements to effect the donation of the organ have been concluded in Australia;

(d)    the applicant is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

(e)    arrangements have been concluded for the payment of all costs related to the treatment and all other expenses of the applicant’s stay in Australia, including the expenses of any person accompanying the applicant;

(f)    either:

(i)    the payment of those costs will not be a charge on the Commonwealth, a State, a Territory or a public authority in Australia; or

(ii)    evidence is produced that the relevant government authority has approved the payment of those costs.

…

    Unfit to depart

(6)    All of the following requirements are met:

(a)    the applicant is in Australia;

(b)    the applicant has turned 50;

(c)    the applicant has applied for a permanent visa while in Australia;

(d)    the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;

(e)    the applicant has been refused the visa;

(f)    the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.

…

602.213

(1)    Subclause (2) applies if:

   (a)    the applicant was in Australia at the time of application; and

   (b)    the applicant held a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(2)    The substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(3)    Subclauses (4) and (5) apply if:

   (a)    the applicant was in Australia at the time of application; and

(b)    the applicant did not hold a substantive temporary visa at that time; and

(c)    the requirements described in subclause 602.212(6) are not met in relation to the applicant.

(4)    The last substantive temporary visa held by the applicant was not:

(a)    a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

(b)    a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

(5)    The applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

8    Clause 3001 provided:

(1)    The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

(2)    For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

(a)    if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa—1 September 1994; or

(b)    if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa—the day when the applicant last became an illegal entrant; or

   (c)    if the applicant:

(i)    ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

   (ii)    entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

(iii)    the last day when the applicant held a substantive or criminal justice visa; or

(iv)    the day when the applicant last entered Australia unlawfully; or

(d)    if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister’s decision not to revoke the cancellation—the later of:

(i)    the day when that last substantive visa ceased to be in effect; and

(ii)    the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal’s decision.

9    These provisions refer to a number of different categories of visa including, in cl 602.212, “a substantive temporary visa” and, in cl 3001, a “substantive visa”. Although s 5 of the Act includes a definition of “substantive visa”, neither the Act nor the Regulations include a definition of “substantive temporary visa”. However, by reading the definition of “substantive visa” and “temporary visa” together with the aim of ascertaining the meaning of the term “substantive temporary visa” as used in cl 602.13, it is tolerably clear that a substantive temporary visa is a visa to remain in Australia during a specified period, or until a specified event happens, or while the holder has a specified status, provided it is not a bridging visa, a criminal justice visa or an enforcement visa.

The Delegate’s Decision

10    The Delegate’s decision states:

Clause 602.213 in Schedule 2 and the additional Public Interest criterion 3001 in Schedule 3 to the Migration Regulations require the application to be validly made within 28 days after the day when the last substantive visa ceased to be in effect.

Departmental records confirm the applicant’s last substantive visa (UD-976) ceased on 27/01/2010.

The applicant did not hold a substantive temporary visa at the time of application and does not meet subclauses 602.213(1) and 602.213(2).

This Medical Treatment visa application was received on 18/05/2016, more than 28 days after the last substantive visa had ceased.

As the Medical Treatment visa application was not validly made within 28 days after the applicant ceased to hold a substantive visa, the applicant does not satisfy 3001 and the criteria of 602.213(3), 602.213(4) and 602.213(5).

In general, the applicant does not satisfy the requirements in Clause 602.213 in Schedule 2 to the Migration Regulations.

11    It is apparent that the Delegate refused the application on the basis that Mr Lium’s last substantive visa ceased on 27 January 2010 and that Mr Lium’s application for a medical treatment visa was not lodged until 18 May 2016 which is outside the permitted 28 day period.

The Tribunal’s Decision

12    Mr Lium’s application for review of the Delegate’s decision was lodged on 10 June 2016.

13    The Tribunal’s electronic records show that Mr Lium provided an address for correspondence together with his email address. The Tribunal wrote to him at his email address on 14 June 2016 and again on 19 October 2016. The latter communication notified Mr Lium of the time and date appointed for the hearing of his application for review by the Tribunal. He returned a signed and dated acknowledgement on or about 20 October 2016 which indicated he would require the assistance of an interpreter.

14    The hearing before the Tribunal took place on 5 December 2016. Mr Lium gave oral evidence at the hearing with the assistance of an interpreter. The evidence before the primary judge did not include any transcript of that hearing.

15    The Tribunal’s Statement of Decision and Reasons (“the Tribunal’s Reasons”) consists of 14 paragraphs. The Tribunal said at [1]-[13]:

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 May 2016 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 18 May 2016. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3.    On 20 June 2016, the Tribunal received written submissions from the applicant’s migration agent together with supporting documents.

4.    The applicant appeared before the Tribunal on 5 December 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5.    For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6.    The Subclass 602 Medical Treatment visa is for persons seeking to visit or remain in Australia temporarily for medical treatment or related purposes. The issue in this case is whether the applicant satisfies the requirements of cl.602.213.

The applicant’s visa status and related requirements

7.    Clause 602.213 applies to applicants who were in Australia at the time the visa application was made. It relevantly requires that the applicant at that time either held a substantive temporary visa of a specified type, or if he or she did not hold a substantive temporary visa, and is not medically unfit to depart Australia as required by cl.602.212(6), certain additional requirements are met. These are that the last held substantive temporary visa was not a Subclass 426 or 403 visa and that the Schedule 3 criteria 3001, 3003, 3004 and 3005 are met.

8.    In the present case, the applicant does not meet cl.602.212(6), did not hold a substantive temporary visa at the time of application, and the last such visa held was not a Subclass 403 or 426 visa. In these circumstances, the applicant must meet the Schedule 3 criteria 3001, 3003, 3004 and 3005, which are extracted in the attachment to this decision.

Is criterion 3001 met?

9.    In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in cl.3001 (2), as set out in the attachment to this decision.

10.    The applicant gave evidence that the last substantive visa he held was a Visitor visa which expired in January 2010. He has filed with the Tribunal a copy of the Decision Record of the Department of Immigration and Border Protection dated 23 May 2016 which indicates that his Visitor visa expired on 27 January 2010. Accordingly, the Tribunal finds that the relevant day is 27 January 2010.

11.    The Tribunal finds that a valid application for a Medical Treatment visa was made on 18 May 2016. As the visa application was not made within 28 days of the relevant day (27 January 2010), the Tribunal finds that the applicant does not satisfy criterion 3001. As he does not satisfy criterion 3001, the Tribunal does not consider it necessary to consider whether the satisfies the criteria in 3003, 3004 and 3005.

12.    For the reasons given above, the Tribunal finds that the applicant does not satisfy cl.602.213.

13.    Based on the findings above, the applicant does not meet the requirements for the grant of the visa. Therefore, the decision under review must be affirmed.

16    The attachment referred to in [8] of the Tribunal’s Reasons reproduced cl 3001, cl 3003, cl 3004 and cl 3005 of Schedule 3.

17    There is an issue that arises in relation to the written submissions and supporting documents referred to in [3] of the Tribunal’s Reasons. No materials of this kind were in evidence before the primary judge or in the appeal. As I will explain, the Minister submitted that it should be inferred that [3] is an error and that no such submissions or supporting documents were provided to the Tribunal. Counsel for Mr Lium submitted in this Court that no such inference should be drawn. I will return to this issue latter in these reasons.

The hearing before the primary judge

18    Mr Lium appeared on his own behalf before the primary judge with the assistance of an interpreter. The Minister was represented by Ms Cheesman, a solicitor with Clayton Utz. There is a transcript of the hearing before the primary judge in evidence.

19    The evidence before the primary judge included Mr Lium’s application for a medical treatment visa, the record of the Delegate’s decision, correspondence relating to Mr Lium’s application for review of the Delegate’s decision, the Tribunal’s Reasons, and an affidavit made by Ms Cheesman on 8 October 2018. That affidavit describes steps taken by Ms Cheesman to obtain copies of the written submissions and supporting documents referred to in [3] of the Tribunal’s Reasons. It indicates that Ms Cheesman, having attempted to locate that material, was unable to do so. Annexed to the affidavit was an email of 4 October 2018 written by an officer of the Department of Home Affairs confirming that the Department did not have a copy of the material and stating that the Tribunal had also advised that it did not have a copy of the material.

20    The primary judge’s reasons set out the grounds appearing in Mr Lium’s application for judicial review. There are six paragraphs in all which I shall set out as they appear in the primary judge’s reasons:

•    I am a Malaysia citizen and have a genuine intention for subclass 602. I had to lodge my 602 visa after my substantive visa was expired due to my fears for persecution in my home country.

•    AAT refused my visa simply because I did not have the visa at the time of the application and did not consider my special situation

•    I don't think I have been fairly treated by AAT and DIBP in regards to my 602 visa application as I desperately need medical treatment in Australia.

•    I disagree with Immigration and AAT's decision. They did not consider that I have genuine intention to apply for medical visa in Australia.

•    They did not consider the fact that I had compelling reasons for not holding a substantive visa as I applied for refugee and could not returned to my home country. DIBP and MRT did not give a good consideration of my situation was out of my control.

•    DIBP and AAT should granted my subclass 602 visa application and allow me to conduct my medical treatment in Australia.

21    It is important to note what is said by Mr Lium in the first paragraph of his grounds. He acknowledges that he applied for his Subclass 602 visa after his substantive visa had expired. A statement to the same effect appears in the affidavit made by Mr Lium in support of his application for judicial review.

22    The primary judge invited Mr Lium to elaborate on his grounds (with the assistance of the interpreter) but he had nothing of substance to add to them.

23    The primary judge noted at [8] that the Tribunal identified the issue before it as whether Mr Lium satisfied the requirements of cl 602.213. Subclauses 602.213(1)(c) and (3)(c) require that “the requirements in subclause 602.212(6) are not met in relation to the applicant.” Hence, in considering the application of cl 602.213, it is necessary for the decision maker to have regard to cl 602.212(6).

24    The primary judge said at [10] that the Tribunal, having stated that Mr Lium did not meet the requirements of cl 602.212(6), “did not identify cl 602.212(6)”. Her Honour then said at [11]:

The Tribunal made no effort to identify which of those factors to which it was having regard. The court is left to guess what in cl.602.212(6) of sch. 2 of the Regulations the Tribunal was relying on.

25    The primary judge noted the requirements of cl 3001 and said:

[12]    Criterion 3001 of sch.3 of the Regulations (“Criterion 3001”) required that a valid application for a medical treatment visa be made within 28 days of the “relevant day”.

[13]    The Tribunal went on to state that in order to satisfy Criterion 3001, the visa application must have been lodged within 28 days of the relevant day. The Tribunal refers to the relevant day as being defined in cl.3001(2) of sch.3 of the Regulations.

26    The primary judge said at [15] that “[a]gain the Tribunal makes no attempt to identify which part of cl 3001(2) to which it is referring.”

27    The primary judge referred to the Tribunal’s reference to evidence given by Mr Lium that the last substantive visa he held was a visitor visa which expired in January 2010. Her Honour said at [16]:

The Tribunal then states that the applicant gave evidence that the last substantive visa he held was a visitor visa which expired in January 2010. There was no other evidence referred to by the Tribunal as to the date of the last substantive visa held by the applicant. The Tribunal does not identify the evidence given by the applicant to that effect or any exchange it had with the applicant in seeking to identify what that date was. The applicant was unrepresented and required the assistance of an interpreter.

28    The primary judge then referred at [17]-[18] to the Delegate’s decision and the statement that “Departmental records confirm the applicant’s last substantive visa (UD-976) ceased on 27/01/2010.”

29    Her Honour described at [20] the Tribunal’s Reasons as “brief and cursory”. She then turned to the statement in [3] of the Tribunal’s Reasons concerning the written submissions and supporting documents.

30    With regard to the written submissions and supporting documents, the primary judge said:

[22]    The Tribunal makes no attempt to identify what those submissions may have been or what those supporting documents may have been. The first respondent’s solicitor read the affidavit of Elodie Jane Cheesman, affirmed 8 October 2018, deposing to the fact that no such documents had been able to be located by the Department. Either the Tribunal received submissions and supporting documents and failed to have any regard to them, or the Tribunal included that statement in error. The first is certainly an error. In relation to the second, having regard to the Tribunal’s very brief statement of decision and reasons, this court has no confidence that the Tribunal has turned an independent mind to the statutory regime the applicant is required to meet. Nor could one be confident that the Tribunal applied the scheme correctly in the absence of the particular information required by those criteria in the context of the Tribunal’s inexplicable reference to the submission of documents provided by the applicant and to which it paid no regard or referred to in error.

[23]    It may well be that the applicant does not satisfy the relevant criteria. However, the applicant is entitled to have a review in which the Tribunal member engages in an active intellectual process, particularly where the Tribunal refers to the existence of submissions and supporting documents to which it makes no further reference, and, in circumstances where it does not provide all relevant particulars of the relevant requirements the applicant was required to meet.

31    The primary judge then said:

[25]    In the context of the reference by the Tribunal to documents and submissions provided by the applicant where the most cursory of proof-reading such a brief decision would have alerted the Tribunal member to a failure to consider material or a failure to correct an error, there has been a failure by the Tribunal to exercise its jurisdiction according to law in a way that makes clear that the Tribunal member has given proper, genuine and realistic consideration to the issues before it.

32    It can be seen from these extracts from the primary judge’s reasons that her Honour considered that there had been a failure by the Tribunal to exercise its jurisdiction according to law in a way that made clear that it had given proper, genuine and realistic consideration to Mr Lium’s application for review. That conclusion appears to have been based on what her Honour considered to be the cursory and inadequate references to specific parts of cl 602.212(6) which the Tribunal found Mr Lium did not meet, the Tribunal’s failure to identify the specific parts of cl 3001(2) relevant to the calculation of the 28 day period, and the failure of the Tribunal to correct what her Honour found to be an error arising out of [3] of its reasons (whether it be a failure to consider material it was referred to or a failure to correct a mistaken reference to material that it was not referred to). Her Honour said that the latter error was one of particular concern.

The Minister’s Grounds of Appeal

33    The Minister advanced three grounds of appeal against the primary judge’s finding of jurisdictional error.

34    Ground one of the Minister’s grounds of appeal enumerates seven findings made by the primary judge which are said by the Minister to be findings made along the way to the (erroneous) conclusion that the Tribunal’s decision was affected by jurisdictional error. Those findings were:

(1)    the Tribunal made no effort to identify which factors in cl 602.212(6) of the Migration Regulations 1994 (Cth) to which it was having regard;

(2)    the Tribunal referred to the “relevant day” but made no effort to identify which part of cl 3001(2) of Schedule 3 to the Regulations upon which it was relying;

(3)    there was insufficient evidence of the date the first respondent last held a substantive visa in circumstances where the Tribunal only referred to Mr Lium’s evidence that his last substantive visa expired in January 2010 (evidence given in circumstances where Mr Lium was unrepresented and required the assistance of an interpreter);

(4)    the Tribunal referred to the reasons for decision of the delegate which also made no reference to cl 602.212 of Schedule 2 to the Regulations;

(5)    the Tribunal’s Reasons were expressed in brief and cursory terms;

(6)    the Tribunal’s mistaken reference to submissions and supporting documents that were in fact not received, or alternatively, a failure to consider submissions and supporting documents that were in fact received, gave the primary judge no confidence that the Tribunal had turned an independent mind to the statutory function the Tribunal was required to perform; and

(7)    even if, on remitter, Mr Lium does not satisfy the criteria for the grant of the visa for which he applied, he is entitled to have a review in which the Tribunal engages in an active intellectual process.

35    Ground two of the Minister’s grounds of appeal asserts that the primary judge ought to have held that the Tribunal’s decision was not affected by jurisdictional error.

36    Ground three of the Minister’s grounds of appeal assert that even if the Tribunal’s decision was affected by jurisdictional error, the primary judge made an appealable error by failing to consider a submission made by the Minister that the relief sought be refused on the ground that the first respondent could not satisfy the requirements of cl 602.213(5) of Schedule 2 and cl 3001 of Schedule 3 to the Regulations.

Jurisdictional Error

37    I approach this appeal on the basis that the primary judge is to be understood to have found that the Tribunal’s decision was affected by jurisdictional error as a result of a failure by the Tribunal to give proper, genuine and realistic consideration to Mr Lium’s application for review.

38    The requirement for a decision-maker to give “proper, genuine and realistic consideration” to the issues before it is well established: see for example Minister for Immigration v SZJSS (2010) 243 CLR 164 and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36]. However, there is a need to exercise caution in relation to the use of the expression “proper, genuine and realistic consideration” because there is a danger that it may draw the Court into an impermissible merits review: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32] (“Carrascalao”) and the cases there cited. In Carrascalao, the Full Court said at [35]:

“…the evaluative judgment which the court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process…”

39    The requirement that the Tribunal engage in an active intellectual process does not impose upon it an obligation to refer to every piece of evidence and every contention in the reasons for decision (Carrascalao [45]). Nor does it require the Tribunal to provide lengthy or detailed reasons. A failure to provide reasons for making a particular finding or arriving at a particular conclusion may sometimes provide a basis for inferring that the decision maker did so without any sufficient reason. But there are many cases in which the brevity of the reasons provided merely reflect the lack of any relevant complexity or difficulty that would, if present, require the provision of more detailed reasons necessary to provide some evident and intelligible justification for the decision.

40    In considering whether it engaged in an active intellectual process, the reasons of the Tribunal should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ citing Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at [37]. Further, as the Full Court observed in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [59]:

… A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.

41    The Minister relied upon the decision of the High Court in Hossain v Minister for Immigration (2018) 264 CLR 123 (“Hossain”) as authority for the proposition that for an error to be jurisdictional it must be material in the sense that it must have affected the exercise of the relevant power. As the plurality (Kiefel CJ, Gageler and Keane JJ) explained at [27]-[31]:

[27]    Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

[28]    The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that “[d]ecison-making is a function of the real world”.

[29]    That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.

[30]    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

[31]    Thus, as it was put in Wei v Minister for Immigration and Border Protection [(2015) 257 CLR 22 at [23]; 90 ALJR 213] “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(some citations omitted)

42    The Minister also referred me to the decision of the Full Court in Ahmad v Minister for Immigration and Border Protection; Zhao v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 (“Ahmad”) in which the Full Court (Rares, Davies and Bromwich JJ) held that where an applicant cannot meet an essential requirement for a visa application to be valid or approved, any error in the Tribunal’s expression of its reasons is not an error that goes to the exercise of its jurisdiction.

43    The Minister also submitted that where a decision is affected by jurisdictional error, there remains a discretion to grant or refuse relief. When exercising this discretion, regard is generally had to whether in all the circumstances, curing or eliminating the error would have made any difference or affected the result: see, for example, Hossain [43], [73] – [74], Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, Balenzuela v De Gail and Anor (1959) 101 CLR 226 at 234.

CONSIDERATION

44    In considering grounds one and two it is useful to examine each of the seven findings referred to at [34] above which were relied upon by the primary judge in support of her ultimate conclusion that the Tribunal had committed a jurisdictional error by failing to give Mr Lium’s review proper, genuine or realistic consideration. I will deal with each of the seven findings in turn.

Finding 1

45    The primary judge found the Tribunal made no effort to identify those factors in cl 602.212(6) it had regard to when concluding that Mr Lium did not satisfy the criteria. This was viewed by her Honour as evidence of a failure to give proper, genuine and realistic consideration to the issues before it.

46    The Minister relied on the application for a medical treatment visa filed by Mr Lium which discloses that he was 31 years of age at the time of lodging his application. The Minister submitted that in circumstances where Mr Lium was required to satisfy all of the conditions in cl 602.212(6) and was plainly unable to satisfy cl 602.212(6)(b), it was open to the Tribunal to state as it did that Mr Lium did not satisfy the criteria in cl 602.212(6) without further explanation.

47    I accept the Minister’s submission. The brevity of the conclusion does not detract from its correctness. The fact that the Tribunal did not state that Mr Lium “had not turned 50” does not in the circumstances of this case reflect a failure to engage in a proper, genuine and realistic consideration of Mr Lium’s circumstances or the relevant criteria. The absence of such a statement is consistent with the Tribunal proceeding on the perfectly understandable basis (given Mr Lium’s age) that non-compliance with cl 602.212(6) was a self-evident and admitted fact.

48    Further, the Minister submitted that any error said to arise from a failure to specify which of the factors the Tribunal relied on in cl 602.212(6) was not material to the exercise of the Tribunal’s decision making and, as such, could not be said to constitute a jurisdictional error. I accept this submission. The error attributed to the Tribunal by the primary judge could not be said to be material to the decision in the sense that it affected the exercise of the Tribunal’s power because it was at all relevant times accepted by Mr Lium that he had not turned 50. It necessarily followed from this that Mr Lium could not meet the requirements of cl 602.212(6)(b). It also followed that he could not meet the requirement in cl 602.213(3)(c). Counsel for Mr Lium did not dispute the correctness of either of those propositions.

Finding 2

49    The primary judge also found that the Tribunal failed to identify which part of cl 3001(2) of Schedule 3 to the Regulations it had regard to when concluding that Mr Lium’s visa application was not made within 28 days of the relevant day. Her Honour considered that this was further evidence of the Tribunal’s failure to give proper, genuine and realistic consideration to the issues.

50    The Minister submitted that it was of no moment that the Tribunal did not identify which part of cl 3001(2) was applied because s 368(1) of the Act did not require such identification and also because it was plain on the facts of Mr Lium’s case that each of cll 3001(2)(a), (b), (c)(ii), (c)(iv) and (d) were inapplicable.

51    The Minister referred to [10] of the Tribunal’s decision which referred to evidence given by Mr Lium “that the last substantive visa he held was a Visitor visa which expired in January 2010” and a copy of the Delegate’s decision which relevantly stated that Mr Lium’s visa expired on 27 January 2010. The Minister submitted that it is clear on a reading of this part of the Tribunal’s reasons that this was the basis upon which the Tribunal concluded “the relevant day” was 27 January 2010.

52    It is clear from a reading of the Tribunal’s decision that the evidence relied on by the Tribunal in reaching its conclusion in respect of cl 3001(2) of Schedule 3 was that given by Mr Lium and the more specific information on the topic contained in the Delegate’s reasons for decision.

53    It is also clear that the Tribunal calculated the “relevant day” by reference to the criteria in cll 3001(2)(c)(i) and (iii). The Tribunal referred in its reasons expressly to Mr Lium’s evidence that the last substantive visa he held was a Visitor visa which expired in January 2010. It is therefore apparent that the Tribunal was directing its attention to the question whether more than 28 days had elapsed between the date upon which Mr Lium’s last substantive visa expired and the date on which he filed his application for a Subclass 602 visa. It is to be inferred that, in addressing that question, the Tribunal had regard to both the requirements of subclauses 3001(1) and 3001(2)(c)(i)and (iii) and the evidence before it. The Tribunal’s failure to specify which part of cl 3001(2) was relied upon in reaching its conclusion is not, in the circumstances, evidence of a failure to give proper, genuine and realistic consideration to the issues before it.

54    The Minister also submitted that the failure to identify that part of cl 3001(2) that the Tribunal relied upon could not have affected the Tribunal’s decision and therefore could not be said to constitute a jurisdictional error. For the reasons set out above in respect of finding one, I accept this submission. The failure to specify by reference to a particular provision which factor was relied upon cannot be said to have affected the outcome of the review in circumstances where it is clear from the Tribunal’s reasons read as a whole that it was satisfied that more than 28 days had elapsed between the date upon which Mr Lium’s last substantive visa expired and the date on which he filed his application for a Subclass 602 visa. The evidence upon which the Tribunal relied in satisfying itself in relation to that matter was based substantially upon Mr Lium’s own evidence.

Finding 3

55    The primary judge found at [16] that the only evidence relied on by the Tribunal in determining the date of the last substantive visa held by Mr Lium was a “concession” made by him. The primary judge identified a number of factors which were said to detract from that evidence, including that Mr Lium was unrepresented at the time of giving the evidence and that he required the assistance of the interpreter. In essence, the primary judge found that reliance on the first respondent’s concession was further evidence of a failure by the Tribunal to give proper, genuine and realistic consideration to the issues before it.

56    The Minister submitted that the primary judge was incorrect to find the Tribunal only relied on Mr Lium’s concession as to the date of his last substantive visa. The Minister relied on [10] of the Tribunal’s reasons which refers to the Delegate’s decision filed with the Tribunal which states that the Departmental records show that Mr Lium’s Visitor visa expired on 27 January 2010. The Minister submits that it was open to the Tribunal to rely on this statement.

57    Counsel for the Mr Lium submitted that the primary judge was correct to conclude that the Tribunal erred in relying on the concession by Mr Lium. In response to the Minister’s reliance on the Delegate’s decision, she also submitted that the Tribunal did not engage with the question of whether the visa was a substantive temporary visa and that the Tribunal’s reliance on the Delegate’s bare statement without more constitutes circular reasoning.

58    Counsel for Mr Lium also submitted that the Tribunal failed to consider whether Mr Lium’s “last substantive temporary visa” (the term used in cl 602.213) was a Subclass 403 visa or a Subclass 426 visa as referred to in subclause 602.213(4). However, contrary to that submission, the Tribunal found in [8] of the Tribunal’s reasons that Mr Lium did not hold a substantive temporary visa at the time of application, and that his last such visa was not a Subclass 403 or 426 visa. Moreover, Mr Lium’s application for judicial review acknowledged that he did not have a visa at the date he applied to have the Delegate’s decision reviewed by the Tribunal.

59    The parties provided me with brief written submissions on the reference to “UD-976” as it appears in the Delegate’s decision. Submissions provided by the Minister attaching relevant legislative extracts indicate that the reference to UD-976 in the Delegate’s reasons is to be understood as a reference to an Electronic Travel Authority (Visitor) visa within visa class UD and subclass 976. Submissions made on behalf of Mr Lium suggested that “the term “UD-976” does not appear in either the Act or the Regulations. Counsel for Mr Lium expressly did not concede that Mr Lium’s last substantive visa was an Electronic Travel Authority (Class UD) visa or that it was open to the Tribunal to make a finding that it was a visitor visa.

60    The term “UD-976” appears in versions of the Act and Regulations in force during 2010. I am satisfied that the reference in the Delegate’s Decision to “UD-976” is to be understood as an Electronic Travel Authority (Visitor) visa within visa class “UD” and subclass “976”.

61    In relation to the submission that the Tribunal failed to consider whether the visa that had been held by Mr Lium was a substantive temporary visa, it is apparent that the Tribunal did consider this issue. The Tribunal’s Reasons refer to:

…the Decision Record of the Department of Immigration and Border Protection dated 23 May 2016 which indicates that his Visitor visa expired on 27 January 2010

(emphasis added)

62    In circumstances where the Delegate identified the type of visa as “UD-976” and the Tribunal referred to Mr Lium’s “Visitor visa”, I am satisfied that the Tribunal gave proper, genuine and realistic consideration to the type of the visa previously held by Mr Lium and, in particular, whether it was a substantive temporary visa and whether it was a Subclass 403 or 426 visa. As I mentioned in [58] above, the Tribunal made express findings in relation to these matters.

63    Nor is there any reason to believe that Mr Lium’s evidence as to when it was that his last substantive visa ceased or that the reference to the Departmental records in the Delegate’s decision was in any respect inaccurate or unreliable. In any event, what weight should be given to such evidence was a matter for the Tribunal to assess: Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 per Bell, Gageler and Keane JJ at [13]. The present case was not one in which it was established that the Tribunal failed to consider some other evidence to suggest that Mr Lium’s last substantive visa expired at some different time to that identified in his own evidence.

64    I should add that the primary judge’s characterisation of Mr Lium’s evidence to the Tribunal as to the date of the last substantive visa held by him as a “concession” suggests that Mr Lium conceded on a point that had been in issue. However, it was never suggested by Mr Lium in his application or his supporting affidavit filed in the Federal Circuit Court that he disputed the fact that his last substantive visa had expired in January 2010. Whether or not this involved a concession by Mr Lium is not to the point. It was evidence that the Tribunal was plainly entitled to accept.

65    Nor was it submitted on behalf of Mr Lium that the Tribunal’s description of the relevant visa as a “Visitor visa” was inapt or that Mr Lium’s last visa was anything other than a “substantive visa” as defined in s 5 of the Act.

66    In the result, I am satisfied that the conclusion expressed at [10] of the Tribunal’s Reasons that the last substantive visa held by the first respondent expired on 27 January 2010, was the product of proper, genuine and realistic consideration, that it was based on a proper understanding of the requirements of cl 602.213, and that it was a conclusion that was reasonably and logically open to the Tribunal on the material that was before it.

Finding 4

67    The primary judge noted that the Tribunal’s Reasons referred to the Delegate’s decision which made reference to cl 602.213 but not cl 602.212. The Minister submitted that the Delegate’s failure to refer to cl 602.212 does not constitute a jurisdictional error.

68    I accept the Minister’s submission. The primary judge’s reasoning on this point appears to have been that because the Delegate’s reasons do not refer to cl 602.212(6), then this is supportive of the conclusion that the Tribunal failed to give any proper, genuine or realistic consideration to cl 602.212(6). I do not think this follows.

69    Further, to the extent that the primary judge’s criticism of the Tribunal’s approach is based upon an assumption that the Delegate failed to have regard to cl 602.212(6), I do not think it is justified. The Delegate referred to the requirements of cl 602.213 which refers in subclause (3)(c) to subclause 602.212(6). The Delegate’s failure to mention that Mr Lium had not turned 50 (as made clear in his visa application) is consistent with there being no issue about that fact or its inescapable consequence, ie. that Mr Lium could not meet all the requirements of subclause 602.212(6).

Finding 5

70    The primary judge criticised the Tribunal’s Reasons for being “in brief and cursory terms”. The Minister submitted that the brevity of the Tribunal’s Reasons does not of itself reflect a failure to give proper, genuine and realistic consideration to the issues before it.

71    It is not disputed by the Minister that the Tribunal was required to engage in an active intellectual process when considering Mr Lium’s application. However, the requirement to engage in such a process does not translate into a requirement to publish lengthy or detailed reasons especially in relation to matters that are not open to dispute, ie. that Mr Lium had not turned 50, the date of his visa application, and the fact that his last substantive visa had expired some years earlier. There was nothing about Mr Lium’s case that would require provision of complex or lengthy reasons. The nature of the matter and the issues that arise for determination will influence the nature and length of the reasons required. Some cases will be resolved with brief reasons reflecting what is ultimately a straightforward conclusion arising out of undisputed facts. In the present case, the brevity of the Tribunal’s reasons cannot without more be said to constitute an error, let alone a jurisdictional error.

Finding 6

72    The primary judge concluded that the reference to submissions and supporting documents in [3] of the Tribunal’s Reasons disclosed error involving either a failure to consider relevant material or a failure to correct a clear error in the written reasons. Ultimately, the primary judge concluded that, either way, the contents of [3] of the Tribunal’s reasons amounted to evidence of a failure by the Tribunal to exercise its jurisdiction according to law by engaging in a proper, genuine and realistic consideration of Mr Lium’s application for review.

73    The Minister submitted that there was sufficient evidence before the primary judge to support a finding that Mr Lium did not provide to the Tribunal any submissions or supporting material on 20 June 2016 and that, accordingly, the statement at [3] of the Tribunal’s reasons was an error. The Minister submitted that such an error could not in the circumstances constitute a jurisdictional error.

74    Counsel for Mr Lium submitted that it cannot be determined on the evidence whether or not the submissions and supporting documents existed. In response to the Minister’s submissions that the primary judge should have found that the submissions and supporting documents did not exist, counsel for Mr Lium advanced three primary arguments.

75    The first was that there is no appeal ground which states that the primary judge ought to have found that Mr Lium (or, more particularly, a migration agent acting on his behalf) did not give the Tribunal any submissions or supporting material on 20 June 2016 and that such an argument would also be outside the scope of the case advanced by the Minister below.

76    The second argument was that, in the event that the Court grants leave for the Minister to raise this ground, the evidence before the primary judge was insufficient to prove whether the relevant submissions and supporting documents were or were not before the Tribunal.

77    Thirdly, it was argued that Mr Lium was denied procedural fairness in respect of the evidence adduced by the Minister on this issue, because he was not asked whether he had been served with Ms Cheesman’s affidavit, was not given the opportunity to cross-examine her and was not given the opportunity to file a cross-appeal on that issue.

78    I propose to consider the significance of the reference to submissions and supporting documents in [3] of the Tribunal’s reasons by asking what consequences would flow from each of the two possibilities identified by the primary judge, ie. either that the statement in [3] was made in error, or that there were in fact submissions and supporting documents put before the Tribunal that it does not otherwise refer in its reasons for decision.

79    In respect of the first scenario, the Minister relied on the reasons of the Full Court in Ahmad in support of the submission that the error was not a jurisdictional error. I accept this submission. Inclusion of an erroneous reference to a written submission and supporting material that were not in fact provided to the Tribunal without more is not a jurisdictional error. To establish jurisdictional error it would be necessary for Mr Lium to show that the error affected the outcome of Mr Lium’s review. That would require the Court to find that the outcome of the review was affected by the Tribunal’s failure to consider submissions and supporting documents that did not exist.

80    In the alternative scenario in which submissions and supporting documents were provided to the Tribunal, the jurisdictional error was said by counsel for Mr Lium to reside in the Tribunal’s failure to consider such material. Counsel submitted, at least implicitly, that the failure to refer to the submissions or supporting material beyond what appears in [3] of the Tribunal’s reasons established a failure on the part of the Tribunal to consider material that was relevant to the review.

81    Mr Lium did not adduce any evidence as to the content of the submissions or the supporting material either before the primary judge or subsequently during the hearing of the appeal. Counsel for Mr Lium acknowledged that the Court is not in a position to know what was in the submissions and supporting documents referred to by the Tribunal. However, she submitted that the potential for the submissions to have dealt in some way with the date of Mr Lium’s last substantive visa means that they could have made a difference to the outcome of the review. She also submitted that the Court should be reticent to conclude that submissions the contents of which are unknown to the Court could not have affected the outcome of Mr Lium’s review.

82    The contention that a consideration by the Tribunal of the submissions and supporting documents could have made a difference to the outcome of the review is predicated on two propositions. The first is that there was an issue as to the date of the last substantive visa held by Mr Lium. For the reasons set out in [64] above, I do not accept that this proposition is correct. In this regard it is significant that the submissions and supporting documents are said by the Tribunal to have been received in June 2016 which was almost six months before Mr Lium gave his oral evidence.

83    The second proposition is that the reference to submissions and supporting documents in [3] of the Tribunal’s reasons is, without more, evidence of a failure to consider relevant material. That no further reference was made in the Tribunal’s reasons to the submissions and supporting documents does not establish that they were not considered. It is also consistent with the Tribunal taking the view that the submissions and supporting documents were irrelevant to the question of whether the requirements pertaining to Mr Lium’s application for a visa were met. That Mr Lium may have forwarded submissions and supporting documents directed to matters that were not relevant to the Tribunal’s determination is not an unlikely possibility when regard is had to the grounds of review he relied upon before the primary judge (eg. that the Tribunal and the Delegate “… did not consider the fact that [he] had compelling reasons for not holding a substantive visa …”).

Finding 7

84    The primary judge’s statement that Mr Lium is entitled to have a review in relation to which the Tribunal engages in an active intellectual process does not address the question of whether it did so. The real question in this appeal is whether it was open to the primary judge on the material before her Honour to conclude that the Tribunal failed to give Mr Lium’s application proper, genuine and reasonable consideration in the relevant sense. In my view it was not open for her Honour to make that finding.

conclusion

85    The reference in [3] of the Tribunal’s reasons to submissions and supporting documents may or may not reflect error. If no such submissions and supporting documents were provided by Mr Lium to the Tribunal then the error is not one that could have affected the outcome of the review. On the other hand, if there were submissions and supporting documents provided by Mr Lium to the Tribunal (as to which there is no evidence other than the statement appearing in [3] of the Tribunal’s reasons) then it has not been shown that those submissions and supporting documents were relevant to the proper determination of Mr Lium’s review.

86    Other errors attributed by the primary judge to the Tribunal reflect what is in my view an over-meticulous analysis of the Tribunal’s reasons for decision the brevity of which reflect the fact that Mr Lium, whatever his medical needs, was not entitled to the medical visa he applied for given his age and his acceptance that his last substantive visa expired in January 2010.

87    In my view the Tribunal was bound to refuse Mr Lium the visa he sought. This is because:

    Clause 602.212 could not apply in Mr Lium’s case because he had not turned 50 at the time he applied for the medical visa and, consequently, the requirements of subclause 602.212(6) could not be met;

    Subclauses 602.213(1)-(2) could not apply in Mr Lium’s case because he did not hold a substantive temporary visa at the time he applied for the medical visa;

    Subclauses 602.213(3)-(5) could not be met in Mr Lium’s case because he did not satisfy the requirements of cl 3001 (as required by subclause 602.13(5)) in that more than 28 days had elapsed between the date Mr Lium’s last substantive visa expired and the date on which Mr Lium applied for the medical visa.

88    In the circumstances, I conclude that the primary judge erred in finding that the Tribunal’s decision was affected by jurisdictional error. The orders made by the primary judge on 15 October 2018 will be set-aside and, in lieu thereof, there will be orders dismissing the application and requiring Mr Lium to pay the Minister’s costs of the application and of the appeal.

89    Orders accordingly.

Associate:

Dated:    12 November 2019