Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 483

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The interlocutory injunction granted on 22 April 2022 be dissolved.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

FEUTRILL J:

INTRODUCTION

1    This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (FCFCOA) by which the appellant's application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) was dismissed. The decision of the Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a class WE (Bridging E) visa.

2    The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) is the first respondent in the appeal. The Tribunal is the second respondent. The Tribunal has filed a submitting notice by which it submits to any order the Court may make in the proceedings save as to costs.

BACKGROUND

3    The appellant is a citizen of Vietnam who arrived in Australia on 5 July 2008 as a dependent on his then wife's student (subclass 572) visa. They subsequently divorced. On 19 June 2012, the appellant's student visa was cancelled and he thereby became an unlawful non-citizen.

4    On 7 December 2017, the appellant was arrested on drug related charges. He was taken into immigration detention, where he has remained since. He subsequently unsuccessfully lodged applications for a protection visa, multiple bridging visas, and unsuccessfully sought ministerial intervention to grant him a visa. On 31 January 2020, the appellant was convicted for drug supply offences committed in 2017 in Queensland. He was 'released' immediately for time served and on the basis that the balance of his four-year sentence was suspended.

5    On 3 November 2021, the appellant lodged an application for a Bridging E visa. On 5 November 2021, a delegate of the Minister refused to grant the appellant the visa on the basis that the delegate was not satisfied that the appellant would abide by the conditions that would be imposed on the visa if granted. The conditions that the delegate determined would be imposed if the visa had been granted were conditions 8101 (No Work); 8207 (No Study); 8401 (Report as directed); 8506 (Advise change of address within 2 working days); 8510 (Present Valid Passport); 8512 (Depart Australia on a specific date); and 8564 (Must not engage in criminal conduct). The delegate determined that the appellant did not meet Sch 2, cl 050.223 of the Migration Regulations 1994 (Cth) (Regulations).

6    On 5 November 2021, the appellant applied to the Tribunal for review of the delegate's decision. On 15 November 2021, the Tribunal affirmed the decision under review. The Tribunal found that the appellant did not meet cl 050.223 in Sch 2 to the Regulations. On 17 December 2021, the appellant applied to the FCFCOA (Div 2) for review of the Tribunal's decision under s 476 of the Migration Act 1958 (Cth) (Act). The appellant sought, and was granted, an expedited hearing. The hearing took place and judgment was reserved. On 14 April 2022, the appellant's application was dismissed and judgment was delivered.

7    As part of the process by which the appellant applied for the Bridging E visa, he made arrangements to depart Australia on 21 May 2022.

8    In the FCFCOA (Div 2), the appellant sought an interlocutory injunction to restrain his removal from Australia while judgment was reserved and sought a final judgment to restrain his removal until 21 May 2022. Each of those applications was also dismissed.

9    On 14 April 2022, the appellant filed a notice of appeal from the judgment of the FCFCOA (Div 2). The appellant also made an interlocutory application for an injunction and for the appeal to be heard immediately.

10    On 21 April 2022, the Minister notified the appellant that he was liable to be removed from Australia under s 198(6) of the Act. While the notice referred to s 198(6), it was common ground that s 198(5) is the applicable provision in the circumstances of the appellant’s case. The notice indicated that arrangements had been made for the appellant’s removal and that it was anticipated that he would be removed from Australia on 28 April 2022.

11    On 21 April 2022, I made orders permitting the appeal to be heard on an expedited basis and made a direction for that appeal to be heard on 22 April 2022 together with the interlocutory application for an injunction.

12    On 22 April 2022, I reserved my decision and granted an interlocutory injunction restraining the Minister from removing the appellant from Australia until the earlier of 21 May 2022 or further order of the Court. At that time, I indicated that I would give my reasons for that decision at the same time as I gave my reasons for the decision in the appeal.

MATERIAL RELIED UPON

13    At the hearing on 22 April 2022, the appellant relied upon:

(a)    a written outline of submissions dated 20 April 2022;

(b)    the appellant's bundle of authorities dated 20 April 2022;

(c)    an affidavit of Mr Luke Tran affirmed on 20 April 2022; and

(d)    a notice of appeal dated 14 April 2022.

14    The affidavit of Mr Tran contained, in effect, the materials before the delegate, the Tribunal and the primary judge, together with some further material for the purposes of the interlocutory application in the appeal. That affidavit, in effect, comprised the appeal book for the purposes of the appeal.

15    At the hearing on 22 April 2022, the Minister relied upon:

(a)    an affidavit of Mr Adam Cunynghame affirmed on 16 April 2022;

(b)    an affidavit of Mr Cunynghame affirmed on 21 April 2022;

(c)    submissions dated 21 April 2022; and

(d)    a notice of contention dated 20 April 2022.

STATUTORY SCHEME

Bridging E visas

16    Section 31(2)(g) of the Act provides for a class of visa known as 'bridging visas' for which provision is made in s 37 of the Act. Section 37 provides that:

There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF [of Div 3 of Pt 2 of the Act].

17    Section 31(3) provides that the Regulations may prescribe criteria for visas of a specified class. Regulation 2.02(2) provides that:

For the purposes of this Part and Schedules 1 and 2, a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the sub-item "Subclasses" in the item in Schedule 1 that refers to that class of visa.

18    The criteria specified in Sch 2 apply to a particular class of visa, relevantly a bridging visa, where Sch 1 identifies the applicable subclass. In this regard, r 2.03(1) provides that:

For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa) and subject to regulations 2.03A and 2.03AA, the prescribed criteria for the grant to a person of a visa of a particular class are:

(a)    the primary criteria set out in a relevant Part of Schedule 2; or

(b)    if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

19    Clause 1305 of Sch 1 of the Regulations under the heading 'Bridging E (Class WE)' identifies two subclasses at subclass (4), namely '050 (Bridging (General))' and '051 (Bridging (Protection Visa Applicant))'. In this case, the relevant subclass is '050 (Bridging (General))'.

20    The criteria for subclass '050 (Bridging (General))' is set out in Sch 2 of the Regulations. Schedule 2, cl 050.2 specifies primary criteria of two types that all applicants under this criteria must satisfy; namely: criteria to be satisfied at the time the application is made; and criteria to be satisfied at the time of the decision. Clause 050.223 is one of the criteria to be satisfied at the time of the decision. That clause provides that:

The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it.

21    Section 73 of the Act provides that:

If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

(a)    during a specified period; or

(b)    until a specified event happens.

22    'Eligible non-citizen' is relevantly defined in s 72(1) of the Act.

23    Section 41(1) of the Act provides that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions. Section 41(3) provides that in addition to any conditions specified under subs 41(1), or in subs 41(2B), the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations for the purposes of subs 41(3).

24    Regulation 2.05 of the Regulations provides:

(1)    For subsection 41(1) of the Act, a visa is subject to any conditions specified for that Subclass of visa in Schedule 2, subject to subregulation (2).

Note:    Regulation 2.40A prescribes conditions in relation to special purpose visas taken to have been granted to airline positioning crew members and airline crew members.

(2)    For subsection 41(3) of the Act, the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2.

Note:    Conditions referred to by number in Schedule 2 are set out in Schedule 8: see the definition of condition in regulation 1.03.

…

25    Schedule 2, cl 050.6 of the Regulation makes provision for the imposition of mandatory and discretionary conditions on subclass 050 bridging visas. Subclauses 050.617 and 050.618 applied to the appellant’s application. Subclause 050.617 provides that any one or more of conditions 8101, 8104, 8116, 8201, 8207, 8401, 8402, 8505, 8506, 8507, 8508, 8510, 8511, 8512 and 8548 may be imposed on a Bridging E visa. Subclause 050.618 provides that in addition to any other condition imposed by another provision, condition 8564 may be imposed on a Bridging visa.

26    Additionally, Sch 2, cl 050.212(2) of the Regulations specifies that, at the time of application:

An applicant meets the requirements of this subclause if the Minister is satisfied that the applicant is making, or is the subject of, acceptable arrangements to depart Australia.

Part 5-reviewable decisions

27    In accordance with Pt 5 of the Act, a decision of a delegate to refuse a Bridging E visa is a Part 5-reviewable decision: s 337 and s 338 of the Act. An application for review of a Part 5- reviewable decision is made to the Tribunal: s 347 and s 348 of the Act.

28    Section 349 of the Act provides:

349    Tribunal powers on review of Part 5-reviewable decisions

(1)    The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)    The Tribunal may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)    set the decision aside and substitute a new decision; or

(e)    if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

(3)    If the Tribunal:

(a)    varies the decision; or

(b)    sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

29    Pursuant to s 353 of the Act the Tribunal, in reviewing a Part 5-reviewable decision:

(a)    is not bound by is not bound by technicalities, legal forms or rules of evidence; and

(b)    shall act according to substantial justice and the merits of the case.

30    Division 5 of Pt 5 of the Act sets out an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 357A of the Act. These provisions deal with the manner in which documents and information are provided to the Tribunal. These provisions reflect the statement in s 353 and suggest that the review will take place with a degree of efficiency and informality.

31    Section 368 of the Act provides:

368    Tribunal's decision and written statement

Written statement of decision

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

Note:    Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)    by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

Note:    For oral decisions, see section 368D.

(2A)    The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

(3)    After the Tribunal makes the written statement, the Tribunal must:

(a)    return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)    give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

(4)    The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

(a)    a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

(b)    a failure to comply with subsection (3).

32    Pursuant to s 368A of the Act the Tribunal must notify the applicant of a decision on review by giving the applicant a copy of the written statement prepared under s 368(1) and it must be given to the applicant within 14 days after the date on which the decision is taken to have been made. A failure to comply with that section in relation to a decision on review does not affect the validity of the decision: s 368A(1) and s 368A(3) of the Act.

33    Pursuant to s 368D, a decision may also be made orally and if it is made orally there must be an oral statement or written statement containing substantially the same information as that described in s 368(1). An applicant also has a right to request the Tribunal to provide a written statement: ss 368D(1), 368D(2) and 368D(4) of the Act.

Judicial review

34    A Part 5-reviewable decision is a privative clause decision within the meaning of s 474 of the Act. Nonetheless, pursuant to s 476 of the Act, the FCFCOA (Div 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. That is, the FCFCOA (Div 2) has power to review a privative clause decision, subject to certain exceptions, for jurisdictional error.

GROUND OF REVIEW

35    In this case, the appellant applied to the FCFCOA (Div 2) for judicial review of the decision of the Tribunal affirming the delegate’s decision to refuse the appellant a Bridging E visa. The only ground of review in the application filed on 17 December 2021 and amended on 9 March 2022 is expressed as follows:

1.    The second respondent (Tribunal) misapplied the relevant legislation and/or constructively failed to exercise its jurisdiction, failed to give proper, genuine or realistic consideration to a material aspect of the review or made a legally unreasonable finding, thereby making a jurisdictional error.

Particulars

a)    Clause 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) required decision makers to take 2 steps, in the following sequence:

i.    Step 1: to determine what visa conditions should be imposed (if any) and why, if the visa were to be granted;

ii.    Step 2: to determine whether such conditions would be abided by.

b)    A delegate of the first respondent determined pursuant to cl 050.223 that she would impose conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 if the visa were granted.

c)    The delegate found that cl 050.223 was not satisfied and therefore refused to grant the applicant a Class WE (Bridging E) visa.

d)    On review, the Tribunal purported to assess whether cl 050.223 was satisfied.

e)    Paragraph 368(1)(b) of the Migration Act 1958 (Cth) required the Tribunal to "set out the reasons for the decision".

f)    The Tribunal assessed cl 050.223 from paragraphs [27] to [52] of its Decision Record.

g)    The Tribunal stated at [44] that the following visa conditions of Schedule 8 to the Regulations should be imposed: 8101, 8207, 8401, 8506, 8510, 8512 and 8564.

h)    The imposition of all those conditions would be discretionary, pursuant to cl 050.617 and cl 050.618.

i)    The Tribunal's Decision Record does not disclose any reasons why it would exercise the discretion the way it did, despite its obligation to do so under to s 368(1). All the Tribunal did from [45] to [49] was to find that some of the conditions it stated should be imposed would not be abided by, without reasoning why they should be imposed in the first place.

j)    Although the Tribunal did discuss from [27] to [43] some historical facts that could have a bearing on why the conditions it stated should be imposed ought to be imposed, it did not give reasons why those facts should lead to the imposition of such conditions, despite its obligation to do so under s 368(1).

k)    It follows that the Tribunal misapplied cl 050.223, failed to give proper, genuine or realistic consideration to the 'decision' on what visa conditions should be imposed (and why) and/or did so legally unreasonably. In these circumstances, it should be inferred that the only possible explanations for the way in which the discretion was exercised are as follows:

i.    The Tribunal did not turn its mind to the question of why the conditions it stated should be imposed ought to be imposed; or

ii.    The Tribunal’s determination of the conditions that ought to be imposed was based on whether they would be abided by, thus inverting the order of Steps 1 and 2.

l)    The inference referred to in p Particular 1(k) is strengthened by the fact that the conditions which the Tribunal determined should be imposed if the visa were granted were the same as those that the delegate determined should be imposed if the visa were granted.

GROUND OF APPEAL

36    There is one ground of appeal which is in the following terms:

1.    The learned primary judge erred in not finding that the Second Respondent (Tribunal) misapplied the relevant legislation, failed to give proper, genuine or realistic consideration to a material aspect of the review or made a legally unreasonable finding, thereby making a jurisdictional error.

37    There are 14 particulars to the ground of appeal. Particulars a) to l) mirror particulars a) to l) of the appellant's application for judicial review before the primary judge. Particulars m) and n) of the ground of appeal are in the following terms:

m)    The learned primary judge correctly accepted from [26] to [49] that the Tribunal is required to express its findings on why certain conditions, if any, should be imposed for the purpose of the assessment under cl 050.223.

n)    However, the learned primary judge erred from [50] onwards by holding that, "in circumstances where [the Appellant] accepted that he was willing to accept those conditions", the Tribunal did not make a jurisdictional error:

i.    The Appellant never submitted to the Tribunal that those seven conditions should be imposed, but merely that he would abide by them if they were imposed, which is very different;

ii.    Further or in the alternative, the Tribunal never stated that it would impose the same seven conditions imposed by the delegate because the Appellant had indicated that he would abide by them, merely "not[ing]" at [45] that the Appellant had indicated that he would abide by them;

iii.    Further or in the alternative, even if it could be said that the Appellant conceded to the Tribunal that it should impose those seven conditions, "a concession does not permit the Tribunal to avoid its duty … to make the correct or preferable decision … on all relevant aspects of the matter before it" (Peacock v Repatriation Commission (2007) 161 FCR 256 [23] (Downes, Lander and Buchanan JJ)), nor would such a concession have obviated the Tribunal's obligation under s 368(1)(b)-(c) of the Act to set out reasons why those conditions ought to be imposed and set out its findings on the material question of what those conditions should be, respectively.

iv.    Further or in the alternative, the learned primary judge only dealt with one aspect of the Appellant's amended originating application, namely the claim that the Tribunal's finding on cl 050.223 was legally unreasonable, failing to deal with the two other aspects pleaded, namely that the Tribunal misapplied the relevant legislation and/or failed to give proper, genuine and realistic consideration to the merits of the case.

38    The Minister filed a notice of contention by which it is contended that the primary judge's judgment should be affirmed on the following grounds:

1.    The Second Respondent in making a decision under s 73 of the Migration Act 1958 (Act) was not obliged, under the Act or at common law, to give reasons for why particular conditions should be imposed on the grant of the Applicant's Bridging E [visa]. The Second Respondent therefore cannot be said to have misapplied the relevant legislation in circumstances where it gave reasons for its decision with respect to cl 050.223 of Schedule 2 to the Migration Regulations 1994 (Cth) as required by s 368(1) of the Act.

2.    The Second Respondent did not and was not required to exercise any discretion in making its decision under s 73 of the Act. If the First Respondent is wrong in this regard, the Second Respondent's decision in exercising its power under s 73 was not legally unreasonable.

39    The central premises of the appellant's case in the appeal is reflected in particular n) of the ground of appeal. There are six elements to that aspect of the ground of appeal.

(1)    The primary judge was in error to treat the appellant's statements to the Tribunal as a concession to the effect that the seven conditions should be imposed on the visa if granted.

(2)    In any case, the primary judge was in error in considering that the Tribunal had given reasons to the effect that the seven conditions were imposed because of a concession of the appellant; that is, the Tribunal had not given any reasons for imposing the seven conditions.

(3)    Alternatively, the primary judge was in error in that she applied the wrong test to the question of what the Tribunal was required to do in circumstances where the appellant had conceded that the seven conditions should be imposed on the visa if granted, in that the Tribunal was nonetheless required to consider if conditions should be imposed on the visa before considering if the appellant would abide by those conditions.

(4)    The primary judge was in error in considering that a concession of the appellant obviated the Tribunal’s obligation to give reasons for its decision under s 368 of the Act.

(5)    Otherwise, the primary judge was in error in that she failed to deal with two aspects of the grounds of review; namely, that the Tribunal misapplied the relevant legislation or failed to give proper, genuine or realistic consideration to a material aspect of the review.

(6)    Implicitly, without one or more of the above errors, the primary judge would have or should have concluded that the Tribunal made a jurisdictional error by reason of the particulars given in paragraphs a) to l) (specifically, paragraphs i) to l)).

40    All elements of the ground of appeal and particulars depend on the correctness of the primary judge’s conclusions about: the appellant’s concession; the content of the Tribunal’s reasons for decision; and the nature and extent of the Tribunal’s obligation to give reasons for its decision.

VISA CONDITIONS

41    The appellant submitted, in substance, that the proper exercise of the power of review of the delegate's decision to refuse the grant of the Bridging E visa required the Tribunal to take at least two steps in reaching a decision about whether or not the appellant would abide by any conditions imposed on the visa if it were granted. These were:

(1)    step-1, the decision-maker must decide what conditions (if any) ought to be imposed on the grant of a visa; and

(2)    step-2, if conditions are to be imposed, the decision-maker must ask himself (or herself) whether they will be complied with standing alone (that is, without any security being taken):

Applicant VAAN of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCA 197; (2003) 70 ALD 289 at [10], [11], [14], [15], [16] and [22]. That submission was not contested and I accept that on the relevant issue under consideration in this appeal, the Tribunal was obliged upon the review and upon determining the correct and preferable decision to take, at least, the two steps identified in VAAN.

42    The appellant's complaint in the appeal is, and in the application for review of the Tribunal's decision was, that the Tribunal misapplied Sch 2, cl 050.223 of the Regulations in that it misapplied that provision and (or) failed to properly, genuinely or realistically consider the imposition of discretionary conditions on the Bridging E visa if granted as required in step-1 referred to above. Further or alternatively, the decision of the Tribunal to impose the seven conditions on the visa if granted was legally unreasonable. That is, the decision involved in step-1 was legally unreasonable.

43    In essence, the statutory scheme described earlier in these reasons requires the decision-maker exercising administrative power under s 73 of the Act to make a decision, in a preliminary way, as to what conditions (if any) ought to be imposed on the visa under s 41(3) if the visa were granted. That ‘decision’ is to be made as a step along the way to a ‘decision’ as to whether the decision-maker is satisfied that if a bridging visa were granted, the visa applicant would abide by the conditions (if any) imposed on it as required by Sch 2, cl 050.223 of the Regulations.

44    The preliminary ‘decision’ as to what (if any) conditions ought to be imposed on the grant of a visa does not involve the exercise of the power under s 41(3) of the Act. The power under s 41(3) to specify discretionary conditions is not exercised until a decision is made to grant a visa. Nonetheless, as the decision-maker is considering a discretion to specify that a visa be subject to such conditions as are permitted by the Regulations for the purposes of s 41(3), that step in the decision-making process mirrors the exercise of the discretion that would take place on the grant of a visa. In that sense, step-1 involves the exercise of the same discretion that would be exercised under s 41(3) if the visa were granted.

45    The discretion to specify conditions under s 41(3) of the Act does not contain any criteria that must be taken into account in the exercise of the discretion. Likewise, Sch 2, cl 050.6 does not contain any criteria that must be taken into account in the exercise of the discretion to impose any of the conditions identified in Sch 2, cll 050.617 and 050.618. Thus, the decision-maker’s discretion and the considerations that may be taken into account in the exercise of the discretion are very broad. Nonetheless, it may be accepted that the discretion must be exercised reasonably: e.g., Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [4], [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [29], [63], [65] and [88]-[92].

THE PARTIES’ SUBMISSIONS

Appellant’s submissions

Misapplication of Sch 2, cl 050.223 and (or) failure to give it genuine consideration

46    The appellant identifies eight grounds for contending that the Tribunal misapplied cl 050.223 and (or) failed to give it genuine consideration. Through particular n)iv to the ground of appeal, the appellant contends that the primary judge was in error for failing to consider these two grounds of the application for judicial review and (or) otherwise conclude the Tribunal was in error on those grounds.

47    First, it is submitted that to 'decide' what conditions ought to be imposed is not to fortuitously or uncritically list them, but to intellectually engage in an assessment of what conditions ought to be imposed (if any) and express reasons why. In substance, the appellant submitted that the Tribunal made a bare conclusion of the conditions that should be imposed but did not state why the conditions should be imposed leaving the decision as to what conditions to impose on the visa if granted incomplete. From that incomplete or bare conclusion an inference should be drawn that the Tribunal misapplied Sch 2, cl 050.223 and (or) failed to give proper, genuine or realistic consideration to the issue of what conditions to impose and, thus, to cl 050.223 as a whole.

48    Second, it is submitted that the Tribunal was obliged to give reasons on the issue of what conditions to impose on the visa if granted under s 368(1)(b) and (c) of the Act. It is submitted that one of three things (each involving error) is to be inferred from the absence of reasons on that issue:

(a)    the Tribunal intellectually engaged with the decision to specify the seven conditions, but treated that question as immaterial (which involved an error), and thus did not set out its findings on it; or

(b)    the Tribunal intellectually engaged with the question, treated it as material, but failed to set out its findings on it (which involved an error due to the requirement to give reasons under s 368); or

(c)    the Tribunal did not intellectually engage with the question (which also constituted an error and thus did not set out its findings on it).

49    Third, it is submitted that it can be inferred from the absence of reasons for why the conditions were imposed and the Tribunal’s ‘decision’ to impose exactly the same conditions as the delegate that the Tribunal uncritically accepted the delegate’s decision and did not turn its mind to the merits of the case. The appellant submitted that the chances of the Tribunal imposing the same conditions of the 15 available (upon a proper review) are negligible.

50    Fourth, it is submitted that the Tribunal did not mention in its statement of reasons that Sch 2, cl 050.617 and cl 050.618 applied to the assessment of cl 050.223. From the failure to make specific mention of cll 050.617 and 050.618 it is to be inferred that the Tribunal did not properly consider these provisions of the Regulations. The inference is said to be strengthened by the absence of reference to these provisions in otherwise detailed reasons which ‘unnecessarily set out a number of favourable findings of fact’.

51    Fifth, it is submitted that the Tribunal's statement at [44] of the statement of reasons to the effect that ‘cl 050.6 applies because of the potential for conditions to be set in the provision of a visa’ is circular. It is submitted that it is a statement to the effect that conditions apply because there is the potential for conditions to apply. That submission is relied on in support of the inference that the Tribunal failed to ‘grasp the applicable legislation’.

52    Sixth, it is submitted that one of the conditions imposed, condition 8512, stated: ‘The holder must leave Australia by the date specified by the Minister for the purpose’. It is submitted that the exercise of power is incomplete because no date was specified. Similarly, it is submitted that the imposition of condition 8401 was incomplete because of a failure to specify the time(s) and place(s) and manner in which the appellant must report. Likewise, it is submitted that the imposition of condition 8510 was incomplete for failing to specify the time at which the appellant should show an officer a passport that was in force. The lack of specification is said to support the inference of misapplication or a failure to give genuine consideration to the applicable legislation.

53    Seventh, it is submitted that the Tribunal did not discuss the reasons why none of the other eight potential conditions would not be imposed. The absence of reasons on that topic is also said to support the inference of misapplication or a failure to give genuine consideration to the applicable legislation.

54    Last, it is submitted that the relatively short timeframe during which the Tribunal considered the submissions and evidence further support an inference that the Tribunal did not engage actively in the necessary intellectual process. That inference, in turn, supports an overall inference of misapplication or failure to give genuine consideration to the applicable legislation.

Legal unreasonableness

55    Further or in the alternative to the submissions regarding misapplication and (or) failure to give genuine consideration to Sch 2, cl 050.223, the appellant submits that the Tribunal’s ‘decision’ to impose the seven condition if the Bridging E visa were granted was legally unreasonable. The appellant’s submission in this respect is founded on an inference of unreasonableness drawn from the absence of reasons for why the seven conditions should be imposed.

Jurisdictional error

56    The appellant submits that ordinarily an error is only jurisdictional if it is material to the decision in question, in the sense that, if the error had been made, a different outcome might have ensued. However, the characterisation of the error as legally unreasonable removes the need to demonstrate materiality as errors that are legally unreasonable are, by definition, material: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [1], [31]–[34], [181].

57    The appellant submits that where, as here, the error may be characterised in different ways, it would be odd for some characterisations of the error to require demonstration of materiality (e.g., misapplication of Sch 2, cl 050.223 or failure to give it genuine consideration) while another characterisation (legal unreasonableness) would not require such a demonstration. It is submitted that the error in this case must, therefore, be material on any characterisation. Further, it is submitted that absent error, the discretion could have been exercised differently resulting in different conditions and that the appellant would have abided by such conditions.

58    These submissions do not really grapple with the possibility that the decision is not able to be characterised as legally unreasonable and the extent to which a misapplication or non-genuine consideration of Sch 2, cl 050.223 must then need to be demonstrated to be material. Further, the submissions do not deal with the extent to which it must be demonstrated that a proper application or genuine consideration of the provision could have resulted in none of the seven conditions being imposed. Put another way, if any one of those conditions were imposed it would not have changed the outcome of the decision on review as a whole. Nonetheless, as will become apparent later in these reasons, it is not necessary to deal with these matters in the appeal because the appellant has not established that the Tribunal made any error of the nature asserted in the application for judicial review.

Primary judge’s error

59    The appellant submits that the primary judge erred in that she concluded that the appellant’s statement to the Tribunal: ‘I accept the imposition of conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 against my Bridging E visa if granted’ obviated the Tribunal’s obligation to make a finding as to what (if any) conditions should be imposed on the visa if granted. The appellant submits that the primary judge erred for three reasons.

60    First, the appellant had not submitted that the seven conditions should be imposed. The effect of his statement was merely to accept the imposition of those conditions. It is submitted that acceptance if imposed is ‘very different’ to acceptance that they should be imposed.

61    Second, the Tribunal made no statement that it would impose the seven conditions because the appellant was willing to accept them.

62    Third, even if the appellant conceded that the seven conditions should be imposed, the Tribunal remained obliged to discharge its duty to make the correct or preferable decision on all aspects of the matter before it. The appellant submits that the Tribunal failed in that duty for the reasons set out in the discussion above regarding misapplication, non-genuine consideration and legal unreasonableness.

Respondent’s submissions

63    The respondent correctly identified in its submissions that, in effect, the entire case of the appellant is built upon inferences being drawn from what is absent from the Tribunal’s statement of decision and reasons. The Minister submits that establishing jurisdictional error on such a basis is unsound where the decision-maker was not under an obligation to give such reasons.

64    In the Minister’s written submissions, he submitted that when having regard to s 368 of the Act an inference may be drawn that any matter that does not appear in the reasons was a matter that the decision-maker determined was not material to the decision. Further, that as the appellant had not raised any concern or challenge before the Tribunal about the visa conditions, the most compelling inference to draw is that the Tribunal did not consider it to be material to the decision to give reasons for identifying the same conditions in circumstances in which the imposition of those conditions was not opposed by the appellant.

65    The Minister developed that submission a little further in his oral submissions. In defence of the primary judge’s reasons, the Minister submitted that the appellant’s concession that he would accept the imposition of the conditions obviated the need for the Tribunal to give reasons on that topic as if it were a matter of particular contest. Therefore, one would not infer error from a failure to give reasons on that topic.

66    The Minister submitted that for these reasons, the primary judge arrived at the correct conclusion and the appellant has not established any error in the primary judge’s reasons.

67    Relying largely on the written submissions to the primary judge, the Minister submitted that an alternative way to reach the same conclusion (that no inference should be drawn from the absence of reasons) was that the Tribunal was under no obligation to give reasons for why it would impose certain visa conditions. The Minister’s notice of contention is directed to this submission.

68    The Minister’s alternative submission was founded on a contention as to the proper construction of ss 41(3), 73 and 368(1) of the Act and Sch 2, cl 050.223 of the Regulations. The essence of the contention is that the Minister is under no obligation under s 41(3) to give reasons as to why he decides to impose conditions on visas which are granted (i.e., visas that are not refused and that involve an actual exercise of administrative power under s 41(3)) and, therefore, it would be incongruous if the Tribunal is obliged when giving reasons under s 368 to do something that the Minister would not be required to do if the visa were actually granted; namely, give reasons for why a decision was made to impose certain discretionary conditions.

69    There is a nuance to the Minister’s submission that not easy to discern. The Minister does not submit that the Tribunal is not obliged to give reasons for refusing to grant a visa, including reasons that deal with any conditions to be imposed if the visa were granted and reasons for determining that a visa applicant will not abide by those conditions. However, the Minister submits that there is no obligation for the Tribunal's reasons on the topic of visa conditions to condescend to the reasons why certain conditions would be imposed if the visa were granted.

70    The Minister submits that, as the Tribunal was not under an obligation to give reason for why the seven conditions should be imposed, the absence of any reasons on that topic is explained. Therefore, the absence of reasons on the why topic is not a sound basis from which to draw any of the inferences upon which the appellant relies.

PRINCIPAL ISSUES IN THE APPEAL

71    Drawing on the ground of appeal and particulars, notice of contention, the parties’ submissions and the primary judge’s reasons for decision (RFD), the issues in the appeal can be distilled down to the following questions.

(1)    What was the nature and effect of any concession the appellant made in the proceedings before the Tribunal?

(2)    In the Tribunal’s statement of decision and reasons were any reasons set out for why the seven conditions should be imposed on the Bridging E visa if granted?

(3)    What inferences, if any, may be drawn from the absence of any reasons for why the seven conditions should be imposed? In particular, is it to be inferred that the Tribunal misapplied Sch 2, cl 050.223 of the Regulations or failed to give it genuine consideration or made a legally unreasonable decision under it?

(4)    Was any error of the Tribunal a jurisdictional error?

(5)    Was the primary judge in error for concluding that the appellant conceded that he would accept the imposition of the seven conditions and that meant the choice of those conditions ceased to be an issue for the Tribunal’s review of the delegate’s decision to refuse the Bridging E visa? (RFD [21]).

(6)    Was the primary judge in error for concluding that the appellant’s concession that he would accept the imposition of the seven conditions obviated any need for the Tribunal to provide reasons for deciding that the seven conditions should be imposed? (RFD [24], [51]).

(7)    Was the primary judge in error for failing to determine whether the Tribunal was in error for misapplying Sch 2, cl 050.223 and (or) failing to give it genuine consideration? (RFD [13], [24], [50]).

CONCESSIONS IN THE TRIBUNAL

72    Issue (1) and the first clause of issue (5) set out above turn on the nature and effect of any concession the appellant made in the proceedings before the Tribunal.

Meaning of the appellant's statements

73    It is necessary to determine the objective meaning of the appellant's statements to the Tribunal to ascertain what, if any, concessions he made.

74    Annexure LT-4 to the affidavit of Mr Tran contains the Court Book of the material before the primary judge. That included: the application for the Bridging E visa; supporting documents (travel documents, identity documents, Australian citizenship certificates, verdict and judgment records, a letter from the Department notifying of the refusal of visa and the decision record); application for review; correspondence with the Tribunal; the appellant's statements and other documents submitted to the Tribunal; and a Tribunal hearing record (without transcript). These materials reveal that the appellant was represented by Luat Tran and Associates, as migration agents, on the application for the bridging visa and in the proceedings before the Tribunal.

75    In a statement dated 14 November 2021, the appellant said:

1.    I make these statements in support of the review of my Bridging E visa application.

2.    I seek for the grant of the Bridging Visa E on departure ground, in that I am seeking to be released in the community in order to make my own arrangements to depart Australia.

3.    I accept the imposition of conditions 8101, 8207, 8401, 8506, 8510, 8512 and 8564 against my Bridging E visa if granted. I understand what these conditions are and what I am required to do and not to do in order to abide by these conditions. I undertake to comply with these conditions and I do not see any issues or difficulties in complying with these conditions.

4.    I do not agree with the case officer's decision that I would not abide by these conditions. I understand the case officer's concern having considered my immigration history, and say that I cannot change the past but I can promise the future.

…

76    The appellant's statement then goes on to deal at some length with his immigration history and other history, provides an explanation for that history and concludes:

24.    I can abide by all the visa conditions that the Tribunal would direct as conditions to be imposed against my bridging E visa. There aren't any difficulties or circumstances that would prevent me from complying with my visa conditions.

25.    I know clearly what to do and what not to do. I know about my visa pathways and I know what is required of me. It may be that I would have to depart Australia to apply for my partner visa offshore. Which I would need to do and will do in moving forward.

77    There is no transcript of the hearing before the Tribunal on 15 November 2021. However, the hearing record indicates that the hearing commenced at 10.56 am and was completed at 1.18 pm. There is a handwritten note indicating that there was an allowance until 3.00 pm (South Australian time) for written submission to be made. That further written submission appears to have been made by the appellant's wife at 2.47 pm (South Australian time) on 15 November 2021. That submission does not address the question of what, if any, conditions should be imposed on the visa.

78    The Tribunal's statement of decision and reasons note that the appellant and his wife appeared before the Tribunal on 15 November 2021 by video-link to give evidence, respond to questions and present arguments. Further, the Tribunal also received oral evidence by telephone from the appellant's wife.

79    The Tribunal's reasons do not include any indication that the appellant made any oral submissions to the effect that any of the seven conditions should not be imposed or other conditions should be imposed if the visa were granted. On the contrary, the reasons refer to oral evidence of the appellant that he was willing to accept the seven conditions.

80    It is evident that the appellant made a concession in the Tribunal proceedings through his written and oral statements to the Tribunal. The appellant's concession was expressly in terms that he accepted the imposition of the seven conditions on the Bridging E visa if granted. It is implicit in that acceptance that the appellant also accepted that Tribunal would have a proper factual and legal basis to impose each of those conditions on the visa if granted. He made no submission to the contrary before the Tribunal. Further, the appellant made no submission in the application for judicial review nor in the appeal to the effect that there was not a proper factual and legal foundation on the materials before the Tribunal for the seven conditions to be imposed on the Bridging E visa if it were granted.

Effect of concessions on proceedings in the Administrative Appeals Tribunal

81    The effect of concessions before the Tribunal were summarised in Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511 at [78] in the following terms:

The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties:

•    The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance (Kuswardana 54 FLR at 342; 35 ALR at 194 per Bowen CJ).

•    A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances (Kuswardana 54 FLR at 343; 35 ALR at 195 per Bowen CJ and at 348; 199 per Fox J).

•    Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court (Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1267 per Gummow J).

•    A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material (Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J).

•    There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation (Tefonu Pty Ltd v Insurance and Superannuation Commissioner (1993) 44 FCR 361 at 367 per Beazley J).

•    Even though the parties may be "able, in practical terms, to narrow the issues by concession … even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision … on all relevant aspects of the matter before it" (Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]);

•    A concession "does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions" (Peacock 161 FCR 256 at [23]; and see Comcare v Fiedler (2001) 115 FCR 328 at 337-338).

•    The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where:

(a)    the matter is a pure question of law, such as a question as to the validity of a regulation (Kuswardana 54 FLR at 343; 35 ALR at 195; Tefonu 44 FCR at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation (Ferriday 69 FCR at 527-528 per Lee J);

(b)    the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself (Perpetual Trustee Company (Canberra) Ltd v Commissioner for Revenue (ACT) (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas 50 FCR at 120 per Beazley J); or

(c)    the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual (Kuswardana 54 FLR 334; 35 ALR 186).

82    While the Full Court was considering an appeal from a decision of the Tribunal on a question of law brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the same principles apply in the context of judicial review: e.g., Toia v Minister for Immigration and Citizenship [2009] FCAFC 79; (2009) 177 FCR 125 at [52]-[59]; AZL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1490 at [39].

83    In Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at [39], the Full Court said:

The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.

(Emphasis added.)

84    It follows that the Tribunal was not relieved of its duty to make the correct and preferable decision by the appellant’s concession that he would accept the imposition of the seven conditions. However, the Tribunal was not bound to inquire into the issue of the imposition of the seven conditions on the visa if granted unless there was reason to doubt that the concession on that issue was factually justified.

REASONS FOR DECISION

85    Issues (2), (3) and (7) turn on the proper construction of the Tribunal’s statement of decision and reasons.

Burden of proof

86    As the Minister correctly submitted, it is the plaintiff in an application for judicial review of an administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim for relief is founded.

87    To the extent that the factual basis of a claim for relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to settled principles. One is that a statement of reasons must be read fairly and not in an unduly critical manner. Another is that the reasons must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38].

88    In light of the appellant's concession, explaining why the Tribunal decided to impose each of the conditions was immaterial or unnecessary. It may be inferred from the absence of specific reasons that the reasons why the condition should be imposed was not considered material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323 at [69].

89    Where, as here, the applicant for judicial review relies on inferences drawn from the decision-maker’s statement of reasons and, in particular, the absence of reasons on a specific topic, the question of whether it is appropriate to drawn an inference from the absence of reasons may depend upon whether or not there is an explanation for the absence of reasons. An explanation may be that the decision-maker had no obligation to provide reasons on the topic in question. Alternatively, an explanation may be that the decision-maker did not consider the topic to be material to the decision. Another explanation may be that the topic was the subject of a concession or agreement between the parties and, irrespective of the materiality of the topic to the decision-maker’s decision, the decision-maker may have considered it unnecessary to explain why a concession was accepted. There may be any number of reason as to why an inference should or should not be drawn from the absence of reference to a specific topic or issue in a decision-maker’s reasons for decision; whether an inference should be drawn depends on context (i.e., the circumstances of the case and the available information from which an inference may be drawn).

Statutory obligation: s 368(1)

90    Section 368(1) of the Act separately identifies: s 368(1)(b) setting out the reasons for the decision; and s 368(1)(c) setting out the findings on any material question of fact as elements of the written statement that must be made under that subsection. What is a material question of fact is a matter for the Tribunal to identify and set out in its written statement. What is required to set out the reasons for decision is not capable of precise definition. It depends, in part, on the issues before the Tribunal for determination and the material that was before the Tribunal in the matter in question.

91    The appellant does not contend that if there were a failure of the Tribunal to set out the reasons for the decision adequately or at all then that failure, in and of itself, would result in an unauthorised exercise of power that would provide a foundation for the issue of constitutional writs. That is, the appellant does not contend that compliance with s 368 of the Act is a condition for a valid or authorised exercise of administrative power such that the absence of reasons would involve jurisdictional error.

92    The significance of s 368 for the appeal lies in the appellant’s submission that in the absence of the Tribunal giving reasons for why the seven conditions would be imposed on the Bridging E visa if granted, it is to be inferred, for that and other reasons, that the Tribunal misapplied the legislation, failed to give proper, genuine or realistic consideration to a material aspect of the review or made a legally unreasonable finding. That the Tribunal had an obligation to give reasons is said to strengthen the inference to be drawn from the absence of reasons.

93    The Minister’s notice of contention is also directed to the nature of the Tribunal’s obligation to set out the reasons for the decision. The Minister submits that, on the proper construction of various provisions of the Act described earlier, the Tribunal was not under an obligation to set out reasons for imposing any discretionary conditions on the Bridging E visa and, therefore, was not under any obligation to give reason why the seven conditions would be imposed on the visa if granted in the appellant’s case. As a consequence, nothing is to be inferred from the absence of such reasons.

Reasons in context

94    The Tribunal's obligation under s 368(1) of the Act is not breached by a failure to deal with every argument that may have been raised in the proceedings before the Tribunal or with every possibility that could be averted to. The duty must be sensibly interpreted and applied with a view to achieving good and effective administration: Dornan v Riordan (1990) 24 FCR 564 at 567-568; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [64].

95    In WAEE, the Full Court said (at [46]-[47]):

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

96    In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 (at [43]-[46], [48], [54] and [55]), the High Court said:

Adequacy of reasons

43    The starting point for considering the standard required of a written statement of reasons under s 68(2) of the Act is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision (41). The duty of a Medical Panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) itself. The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.

44    The standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act falls therefore to be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication.

45    General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility. To observe, for example, that the provision of reasons imposes intellectual discipline, engenders public confidence and contributes to a culture of justification, is to say little about the standard of reasons required of a particular decision-maker in a particular statutory context. The standard of reasons required even of courts making judicial decisions can vary markedly with the context.

46    Two considerations are of particular significance in determining by implication the standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act. One is the nature of the function performed by a Medical Panel in forming and giving an opinion on a medical question referred to it. The other is the objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion.

…

48    The reasons that s 68(2) of the Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.

…

54    The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

55    The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

97    Having regard to the provisions of Pt 5 of the Act set out earlier in these reasons, the standard required of a written statement for the purpose of s 368(1) is similar to the standard described in Kocak for s 68(2) of the Act there under consideration. Namely, the statement of reasons must explain the actual path of reasoning by which the Tribunal arrived at its decision formed on the factual and legal questions the subject of its decision. The statement of reasons should explain that actual path of reasoning in sufficient detail to enable a court to see whether the reasoning does or does not involve any jurisdictional error of law. That does not require the Tribunal to explain in minute detail reasons for accepting concessions made on the application before it.

Tribunal’s statement of decision and reasons

98    The Tribunal produced a document entitled 'Decision Record'. That document records the Tribunal's decision to affirm the decision not to grant the appellant a Bridging E (Class WE) visa. The document includes a 'Statement of Decision and Reasons' (Tribunal's reasons).

99    The Tribunal’s reasons (at [27]) identify, in a summary manner, the applicable legislative provisions that are described in more detail earlier in these reasons. The Tribunal (at [28]) identifies the relevant issues for its consideration regarding visa conditions and the two steps referred to earlier in these reasons. The Tribunal said: ‘When considering cl 050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions’ (at [28]). The Tribunal then describes and averts to what it is required to do to be satisfied as to whether the appellant would abide by conditions imposed.

100    The Tribunal said (at [44]) of the Tribunal's reasons:

In this case, cl 050.6 applies because of the potential for conditions to be set in the provision of a visa. This clause prescribes that, in addition to any mandatory conditions, certain conditions may be imposed. The Tribunal considers that the following conditions should be imposed in the circumstances of this case: 8101 (Work), 8207 (Study), 8401 (Report), 8506 (Advise of change of address within 2 days), 8510 (present valid passport), 8512 (must depart Australia on a specific date), 8564 (must not engage in criminal activity).

(Emphasis added.)

101    The Tribunal's reasons (at [29]-[43]) sets out a series of findings of fact. On a fair reading of the Tribunal's reasons, these findings of fact are to be understood as forming part of ‘the circumstances of this case’ referred to in the reasons (at [44]). The Tribunal then notes (at [45]) the documented and oral evidence of the appellant that he is willing to accept the seven conditions. That is, the Tribunal notes the appellant’s concession referred to earlier in these reasons. Thereafter, the Tribunal sets out (at [46]-[54]) the reasons for determining that the appellant would not abide with the seven conditions.

102    These parts of the Tribunal’s reasons reveal that it directed itself to the correct questions for consideration on the review of the delegate’s decision and for determining the correct and preferable decision. The Tribunal’s reasons indicate that the Tribunal considered and made a decision that the seven conditions (at [44]) ‘should be imposed in the circumstances of this case’. Thus, the Tribunal provided reasons for why the conditions should be imposed; namely, ‘the circumstances of this case’.

103    The Tribunal described the applicable ‘circumstances’ of this case (at [29]–[43]). These may be taken to be part of the facts the Tribunal considered to be material for the purposes of s 368(1)(c) of the Act. The concession the Tribunal notes (at [45]) also forms part of the ‘circumstances of this case’. The appellant's concession may be taken to be part of the Tribunal's reasons for the decision for the purposes of s 368(1)(b) of the Act.

DISPOSITION

Misapplication of legislation and (or) failure to give it genuine consideration

104    It follows from the discussion earlier in these reasons that the appellant has failed to demonstrate a fundamental particular of his application for judicial review and ground of appeal; namely, that the Tribunal failed to set out reasons for why it decided the seven conditions should be imposed on the Bridging E visa if granted. Nothing can be inferred from the absence to give reasons why because adequate reasons were given.

105    If I am wrong and on the proper construction of the Tribunal’s reasons, it contains no adequate explanation for why it decided the seven conditions should be imposed, then in the context in which the appellant made a concession that he accepted the imposition of the seven conditions against his visa if granted, it was not necessary for the Tribunal, in order to meet its obligation under s 368(1)(b) of the Act, to set out the reasons why it decided that those seven condition should be imposed.

106    In the circumstances of this case, it was not necessary for the Tribunal to provide any greater description of its reasons for accepting the appellant's concessions than those which it did. It was not necessary to explain why it had decided it would impose the seven conditions if the visa were granted. There was an evident factual and legal basis for reaching that decision which was not challenged.

107    The Tribunal was entitled to consider that the appellant had conceded in the proceedings before it that there was a proper factual and legal basis for imposition of the seven conditions on the visa if granted. I do not accept the appellant's submission that accepting the imposition of certain conditions if a visa were granted is ‘very different’ from accepting that certain conditions should be imposed if a visa were granted. To the extent there is any difference, in both cases there is an acceptance that if the visa were granted the imposition of the conditions in question would involve a proper exercise of administrative power. That is, there is an underlying acceptance that there is a proper factual and legal basis for the exercise of the discretion to impose each of the conditions in question.

108    There was nothing in the material before the Tribunal to suggest that it could not properly rely on that concession in determining the case before it. The appellant has not sought to raise any such material or contend that the Minister did not have a factual or proper legal foundation for imposition of one or more of the seven conditions.

109    As has been noted earlier, in the Tribunal’s reason it identified in a summary way the correct legal principles applicable to the review of the delegate’s decision to refuse the grant of the visa and to reaching the correct and preferable decision on the issue of whether the appellant would abide by conditions imposed on the Bridging E visa if granted. The Tribunal’s reasons indicate that there was intellectual engagement and an assessment of what conditions ought to be imposed in the context of a statement of material findings of fact and the appellant's concession. I do not accept that the Tribunal’s reasons amount to a bare conclusion without any reasons or that an inference could be drawn, in the circumstances of the case, that the Tribunal misapplied cl 050.223 and (or) failed to give proper, genuine or realistic consideration to the specification of any conditions to be imposed on the visa if granted.

110    The Tribunal was required, and did, turn its mind to the question of whether any conditions should be imposed if the visa were granted. The Tribunal provided adequate reasoning in respect of its decision to impose the seven conditions in question. It also set out the material findings of fact. As to the question of materiality, it was not necessary for the Tribunal to treat the reasons for imposing the same condition as ‘material’ in circumstances of the appellant's concessions. Of course, step-1 was a matter that required consideration and which was, for the reasons previously given, considered by the Tribunal. The Tribunal's reasons, therefore, disclosed that it intellectually engaged with step-1 and set out its findings, as was required, on step-1.

111    While there can be circumstances where mechanical formulated expression in pre-digested shorthand may hide a lack of the necessary reflection upon the whole consideration of the matter in question, I do not accept that the summarised manner in which the Tribunal addressed the applicable legal principles in its reasons for decision provide a foundation for an inference of a lack of necessary reflection in this case. The degree of required reflection is, in part, determined by the appellant’s concession. The reflection that the concession required concerned the question of whether there was material that indicated the concession was not properly made. The appellant does not contend that there was no proper factual or legal foundation for the exercise of the discretion to impose the seven conditions. No shorthand in the circumstances of this case provides grounds for an inference that the Tribunal lacked the necessary reflection: cf, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3].

112    The Tribunal identified and summarised the effect of Sch 2, cll 050.617 and 050.618 (at [44]). That the Tribunal made no express mention of these provisions does not give rise to an inference that it misapplied them or failed to give genuine consideration to them. Nor do I consider that it was necessary for the Tribunal to make a decision on the specific terms of any of the conditions if imposed before considering the question of whether the appellant would abide by them. The issue of the specific terms would arise on the exercise of the power under s 41(3) of the Act if a visa were granted. The absence of any discussion of a decision not to impose further or additional conditions is also of no moment in the context of the appellant’s concession and that neither the Minister nor the appellant advocated for the imposition of other conditions if the visa were granted. Likewise, in the context of the appellant’s concession, nothing can be inferred from the relatively short time between completion of the hearing and the decision on step-1 (the subject of the concession).

113    It follows that, in the context of the appellant’s concession and in the absence of any facts calling that concession into question, the Tribunal’s statement of findings on the material questions of fact and that ‘[t]he Tribunal considers that the following conditions should be imposed in the circumstances of this case’ (at [44]) was an adequate and sufficient statement setting out the reasons for the decision on that issue. These statements were sufficient for a court to consider if the reasoning involves any jurisdictional error on that issue. On a fair and not unduly critical reading of the Tribunal’s reasons, in context, there is nothing in them that expressly or implicitly indicates that Tribunal misapplied the applicable legislation and (or) that the Tribunal failed to give it proper, genuine or realistic consideration.

114    Further, the Tribunal directed itself to the correct legal questions (at [28]). The Tribunal indicated that it had made a decision that the seven conditions should be imposed in the circumstances of the case (at [44]). The Tribunal set out the facts material to its decision (at [29]–[43]). The Tribunal noted the appellant’s acceptance of the seven conditions if the visa were granted (at [44]).

115    It may be assumed from the express terms of the Tribunal’s reasons that all the facts material to the ‘circumstances of the case’ and the Tribunal’s decision that the seven conditions should be imposed are expressed in the Tribunal’s reasons. The appellant does not contend that any relevant consideration to the exercise of the relevant discretion was omitted from the Tribunal’s reasons. The appellant does not contend that any irrelevant consideration to the exercise of the relevant discretion was included in the Tribunal’s reasons. The appellant does not contend that ‘in the circumstances of this case’ the imposition of the seven conditions would fall outside the boundary of a proper, genuine or realistic exercise of the relevant discretion. Indeed, as noted above, by the appellant’s concession, in effect, he accepted that the imposition of the seven conditions would be a valid exercise of administrative power in the circumstances of the case.

116    No error in the application of the relevant discretion is disclosed in the Tribunal’s reasons. No failure to give proper, genuine or realistic consideration to the exercise of the relevant discretion is disclosed in the Tribunal’s reasons. No error or failure of the asserted kind is to be inferred from the Tribunal’s reasons and materials before the Tribunal.

Legal unreasonableness

117    As noted above, a decision under s 73 of the Act requires the decision-maker to make a preliminary discretionary decision as to what conditions (if any) ought to be imposed on a Bridging E visa if granted. Further, while not constrained by any criteria, the discretion to specify or impose conditions must be exercised reasonably: e.g., Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [4] and [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [29], [63], [65] and [88]-[92]. As to the reasonableness of the exercise of administrative discretionary power, the principles are now well-established and may be summarised as follows.

118    Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, 'the statutory power, properly construed, has been abused by the decision-maker' (emphasis in original): SZVFW at [80]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [98]. A conclusion that the statutory power has been abused will be open if a decision is so unreasonable that no reasonable person could have arrived at it. However, it is not limited to such a case. Legal unreasonableness is concerned with both outcome and process: SZVFW at [81]-[82]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [23]-[24], [102], [130], [132] and [135]; Li at [68], [105].

119    In this case, the appellant submits that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification, citing Li at [76]. That is, not being able to identify how a finding was arrived at itself bespeaks legal unreasonableness.

120    Inferring unreasonableness from absence of evident and intelligible justification requires more than a mere absence of reasoning. It is an absence of reasoning having regard to the material that was before the decision-maker that leads to an inference of legal unreasonableness.

121    Here, there was material before the decision-maker that made a decision to impose the seven conditions evident and intelligible. As has been noted elsewhere in these reasons, the appellant did not challenge the imposition of the conditions nor did the appellant identify any grounds or basis upon which it could be said that, on the material before the decision-maker, a decision to impose such conditions was legally unreasonable in the required sense of that expression. That is, the appellant does not assert that legal unreasonableness is manifest from the unreasonableness of the outcome (imposition of the seven conditions). Moreover, the appellant’s concession, in substance and in effect, amounted to an acceptance that there was a factual and legal foundation for imposition of those conditions. That was acceptance that the outcome of an exercise of the discretion to specify or impose the seven conditions on the Bridging E visa would involve a legally reasonable exercise of administrative power.

122    There is no basis for inferring legal unreasonableness from the Tribunal’s reasons or the outcome of its decision to the effect that the seven conditions should be imposed if the Bridging E visa were granted.

Notice of contention

123    As a consequence of the reasons set out above, it is not necessary to consider the Minister’s notice of contention. However, these reasons should not be interpreted as an endorsement of the Minister's submissions on the proper construction of ss 41(3), 73 and 368(1)(b) of the Act. Indeed, if an unsuccessful visa applicant were to seek review of the refusal on grounds that included that a particular condition should not be imposed if the visa were granted, then there would be a sound basis for considering that the Tribunal would be required to give reasons for imposing that condition if it was material to a decision to affirm the refusal of the grant of the visa.

Jurisdictional error

124    As there was no error in the Tribunal's reasons and no misapplication, non-genuine consideration, or unreasonableness of the kind asserted in the ground of appeal is disclosed in or inferred from the Tribunal’s reasons, the question of whether any error was a jurisdictional error does not arise for consideration in the appeal.

Primary judge’s reasons

Failure to deal with all grounds of the application

125    Particular n)iv of the ground of appeal asserts that the primary judge failed to deal with two aspects of the appellant’s grounds of his application for judicial review; namely, that the Tribunal misapplied the relevant legislation and (or) failed to give proper, genuine and realistic consideration to the merits of the case. On a fair reading of the primary judge’s reasons for decision, I do not consider that she made the asserted error.

126    The primary judge set out the grounds and particulars of the application and summarised the arguments the appellant made on the application (RFD [12]-[13]). The primary judge set out the nature and effect of the appellant’s concession that he accepted the imposition of the seven conditions (RFD [19]-[24]). The primary judge concluded (RFD [23]-[24]):

23    The basic issue before the Tribunal was whether the applicant would abide by any visa conditions imposed. The applicant is now seeking to backtrack, and rely on a different case to the one he put to the Tribunal.

24    The Tribunal's duty was to provide reasons for its determination of contested matters. In my view, the applicant's concession that he would accept the imposition of the seven conditions obviated any need for the Tribunal to provide reasons for deciding that the seven conditions should be imposed. It follows that the Tribunal did not make any error in not providing such reasons, and that the application must fail.

127    The primary judge’s conclusion that the Tribunal did not make any error in not providing reasons and that the application must fail was not erroneous for the reasons set out above. Nor was the primary judge in error for concluding that the appellant’s concession, in the circumstances of this case, obviated any need for the Tribunal to provide reasons for deciding that the seven conditions should be imposed (i.e., the reasons why the seven conditions should be imposed). The conclusion that the application must fail because there was no need to give reasons must be considered in light of the appellant’s submissions that all the asserted errors of the Tribunal are to inferred from the absence of reasons.

128    The primary judge then went on to deal with submissions the parties had made as part of their primary arguments (RFD [25]-[50]) and concluded (RFD [47]-[51]):

47    The applicant argued that the court should find that the Tribunal's decision was legally unreasonable, because the court could not know the reasons for the Tribunal deciding that particular conditions should be imposed.

48    The Minister argued that the Tribunal's decision was not unreasonable, on the basis that the Tribunal was not obliged to give reasons for deciding that certain conditions should be imposed.

49    For the reasons discussed, I do not accept the premise of the Minister's argument on this point.

50    However, in my view, the applicant cannot be heard to say that the Tribunal was unreasonable in deciding that certain conditions should be imposed, in circumstances where he accepted that he was willing to accept those conditions.

51    All in all, I consider that the Tribunal was not obliged to set out in its reasons for decision findings about, and the reasons for deciding that, particular conditions should be imposed on any bridging E visa the applicant was granted because the applicant said that he would accept those conditions. The Tribunal was thereby entitled to start its consideration from the point that the particular conditions should be imposed, and did not have to go back and explain the underpinnings of that aspect of the decision.

129    On a fair reading of the primary judge's reasons for decision, her Honour considered that the appellant's concession in his statement obviated the need to provide reasons for deciding that the seven conditions should be imposed on the visa if granted and, therefore, there was no proper basis for contending that the Tribunal had:

(a)    misapplied the relevant legislation;

(b)    failed to give proper, genuine or realistic consideration to a material aspect of the review; or

(c)    made a legally unreasonable finding.

130    Put another way, the primary judge considered all aspects of the appellant’s application for judicial review. The primary judge did not make the error asserted in particular n)iv of the ground of appeal. However, if I am wrong and the primary judge made that error, that error did not result in an erroneous judgment. For the reasons set out above, the primary judge was correct to dismiss all grounds of the application for judicial review.

Appellant’s concession

131    Particular n)i of the ground of appeal asserts that the primary judge erred (from RFD [50] onwards) by holding that, 'in circumstances where [the Appellant] accepted that he was willing to accept those conditions', the Tribunal did not make a jurisdictional error, in that the appellant had not submitted to the Tribunal that the conditions should be imposed, but merely that he would abide by the if they were imposed. There is no error in the primary judge’s reasons for decision. The primary judge set out the appellant’s statement to the effect that he accepted the imposition of the seven conditions against his Bridging E visa if granted. Thereafter, the primary judge correctly referred to that as a concession that the appellant would accept the imposition of the conditions: (RFD [19], [21], [24], [50], [51]).

132    Particular n)ii asserts that the Tribunal had not stated that it would impose the same seven conditions imposed by the delegate because the appellant had indicated that he would abide by them. However, no error is identified in that particular because the primary judge made no conclusion that the Tribunal had imposed the seven conditions because the appellant had indicated that he would abide by them. The primary judge’s conclusion was that the Tribunal had not given reasons why the seven conditions should be imposed: (RFD [16]). As noted above, the primary judge correctly concluded the Tribunal was not in error for not providing such reasons: (RFD [24]).

133    Particular n)iii asserts, further or in the alternative, that even if the appellant conceded that the Tribunal should impose the seven conditions, the Tribunal remained duty-bound to make the correct or preferable decision on all relevant aspects of the matter and to comply with its obligation under s 368(1)(b)-(c) of the Act to set out reason why those conditions ought to be imposed and its findings on the material question of what those conditions should be.

134    The primary judge said in this respect (RFD [21]):

Nevertheless, the applicant's concession that he would accept the imposition of those conditions meant that the choice of those conditions ceased to be an issue. The point of courts and tribunals giving reasons is to explain why particular facts or submissions have been rejected. There is no need for courts or tribunals to explain why concessions have been accepted. Concessions become the starting point or the substratum for consideration of the disputed matters before the court or tribunal.

135    To the extent that the primary judge’s reasons for decision may be read as concluding that the appellant’s concession had the effect that the Tribunal no longer had any obligation to consider what (if any) conditions ought to be imposed on the Bridging E visa if granted, it is not correct. However, her Honour’s statement that ‘the choice of those conditions ceased to be an issue’ must be read with the balance of [21] and the other relevant passages of the primary judge's reasons for decision dealing with the effect of the appellant’s concession. In the context of the reasons as a whole, the primary judge's statement should be understood as meaning the reasons why the Tribunal decided that the seven conditions should be imposed on the visa if granted ceased to be a material issue. Understood in that way, no error is disclosed in the primary judge’s reasons.

136    However, even if the primary judge had made the errors asserted, that error was of no consequence to the correctness of the orders made or the conclusion that it was not necessary for the Tribunal to set out the reasons why it decided that the seven conditions should be imposed. The judgement was correct and the primary judge's conclusion to the effect that the appellant’s concession obviated the need, in the circumstance of the case, for the Tribunal to provide reasons for deciding that the seven conditions should be imposed was correct.

DISCRETIONARY CONSIDERATIONS

137    The Minister made further submissions noting the discretionary nature of the issue of constitutional writs. The Minister questioned the utility of the grant of such relief in the circumstances of this case. The appellant also addressed the question of utility in his written submissions. Given that I have found that the primary judge was not in error for dismissing the application for judicial review, it is unnecessary to deal with the question of the utility of issuing constitutional writs.

INTERLOCUTORY INJUNCTION

138    This Court has jurisdiction to hear an appeal from the FCFCOA (Div 2) from a judgment refusing judicial review under s 476 of the Act and has power to order an interlocutory injunction in an appeal: s 23 and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

139    The principles applicable to the grant of an injunction pending the outcome of an appeal are well established and may be shortly stated. The decision whether to grant an interlocutory injunction pending an appeal is informed by general principles governing the grant of interlocutory injunctions. These are the interrelated tests of a serious question to be tried (in the context of an appeal), harm and the balance of convenience: see, Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [52]-[74] and the cases there cited; see also Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13].

140    The principal reason for the grant of an interlocutory appeal in this case is that the appeal would be rendered nugatory if the appellant were removed from Australia involuntarily before the appeal were determined. The appellant submitted, and I accept, that if he were removed involuntarily and the appeal were successful he would not only lose the benefit of Bridging E visa until 21 May 2021, but the advantage of leaving Australia voluntarily. If he were to be removed involuntarily, the appellant would not be able to apply for a subclass 309 partner visa to return to Australia as a lawful non-citizen for a period of 12 months: see Sch 2, cl 309.226; Sch 5, cl 5002 of the Regulations.

141    In the circumstances of this case, the interrelated test of a serious question to be tried, harm and the balance of convenience is finely balanced, but overall the balance of convenience favours the grant of an injunction until the appeal is determined or 21 May 2021.

142    In reaching my decision, I have taken into account the effect of s 198(5) of the Act which provides:

An officer must remove as reasonably practicable an unlawful non-citizen if the non-citizen:

(a)    is a detainee; and

(b)    neither apply for a substantive visa in accordance with subsection 95(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

regardless of whether the non-citizen has made a valid application for a bridging visa.

143    There is an evident tension between the intended effect of s 198(5), which is to restore the detainee’s liberty by removing the person from Australia and immigration detention, and the appellant's desire to remain in Australia pending his appeal and the potential reconsideration of his application for the grant of a visa, which will result in the appellant remaining in immigration detention until a visa is granted or he is removed from Australia. As a consequence, if the appeal were to fail (as it has), the appellant would remain in detention for a longer period of time than would otherwise have been the case. Against that, I have taken into account that it is the appellant’s desire to remain in Australia and that he must be taken to understand the consequence of the grant of the injunction.

144    Other factors that I have taken into account are that the Minister will not suffer any substantial prejudice if the injunction is granted and the removal of the appellant is delayed given that the appellant intends to depart Australia voluntarily on 21 May 2022. Also, the evidence on the application suggests that there are (or will be) a number of commercial flights between Australia and Vietnam from April 2022.

CONCLUSION

145    The appeal is to be dismissed with costs. The interlocutory injunction granted on 22 April 2022 is to be dissolved. I will hear the parties on the form of the costs order.

Associate:

Dated:    2 May 2022