Taking offshore visa refusals on judicial review
It is possible to take offshore visa refusals on judicial review, but the pathway is a direct application to the High Court which is usually heard and determined by a single justice of the High Court.
In a recent High Court application, the writer successfully overturned a subclass 132 Business visa refusal for an applicant based in Vietnam (see Trung Tien Nguyen v Minister for Immigration, C1 of 2022, judgement made 22 July 2022) [Nguyen C1 of 2022].
Whether by design or miscalculation, offshore visa applications where the applicant is outside of Australia and cannot lodge an Administrative Appeals Tribunal in Australia, CANNOT seek judicial review in the Federal Circuit Court!
It emphasizes the very important practice point that wherever possible, a visa applicant should always lodge a visa application in Australia and after lodgement should always have a return temporary visa pathway to Australia in order to lodge an application to the AAT while present in Australia if there is a refusal.
Because of an absence of merit review in these offshore visa cases, I have seen many cases of clear injustice because the delegate has not properly considered the matter and gone on to refuse.
The case of Nguyen C1 of 2022 is a good example. A huge volume of material had been supplied but the delegate appeared to issue a template request for further information. Because of the COVID restrictions existing in Vietnam at the time, it was not possible to meet the request within the deadline.
The delegate’s reasoning was scant:
“The applicant has failed to provide adequate supporting documents that provide evidence of the value of assets currently held at the time I make my decision.”
Section 55 of the Migration Act states:
“Section 55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.”
In Nguyen C1 of 2022, the High Court said
25. How one is to "have regard" to submitted information is well established. In Tickner v Chapman', Kiefel J… said the following about an obligation to "consider" representations:
"To 'consider' is a word having a definite meaning in the judicial context. ... It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.”….
27.In this matter, the plaintiffs ' case turns upon a consideration of the reasons given by the delegate in the context of the totality of the material give to him or her, and in particular by reference to the material identified in Form I 139A. To this, the defendant contends he has an absolute answer. The decision records the following:
"I am a delegated decision maker under section 65 of the Migration Act 1958. In reaching my decision, I have considered the following:
...
….documents and information provided by the applicant(s).”
28.The foregoing assertion, expressed as a form of incantation, is no sufficient answer to the plaintiffs ' complaint, if the reasons otherwise show that it is not true. Numerous authorities support the proposition that a bare assertion of this kind is often insufficient'
29. Analysis of the reasons here demonstrate that the delegate did not "read, identify, understand and evaluate the representations" contained in the documents referenced in Form 1139A. The reasons reference receipt of the form itself and to one of the documents it identifies, namely the valuation. But those reasons do not deal with the other documents referred to in the form, and do not attempt to engage with the contents of the valuation. Instead, the short contention made by the plaintiffs in the email dated 19 April 2021, concerning satisfaction of cl 132.226, is reproduced, and then the delegate states that this statement "by itself" was not sufficient evidence. But that was never the plaintiffs' case. They did not rely on that statement and nothing else. The statement expressly refers to Form 1139A, and the supporting documentation annexed to that form expressly references the primary documents that purported to evidence compliance with cl 132.226.
30. All of those documents were critical to the plaintiffs' case. They may have had shortcomings and deficiencies; but the delegate does not identify any. The juxtaposition of the length and detail of the plaintiffs' material and the cursory dismissal of their claims is notable. In these circumstances, the proper inference to be drawn is that the relevant information submitted by the plaintiffs has not been considered; there is nothing to suggest that the contents of all of the documents identified by the plaintiffs have been read, understood and evaluated. It follows that the delegate erred in not complying with s 55 of the Act. In that respect, it was not submitted that such non-compliance was, in any event, only an immaterial error.
The decision of Nguyen C1 of 2022 is worth reading in full. It demonstrates that a delegate can’t just gloss over what a visa applicant has supplied, the material supplied by a visa applicant must be properly considered.