Federal Circuit Court of Australia

Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 425  
File number(s):	PEG 111 of 2020	
		
Judgment of:	JUDGE KENDALL	
		
Date of judgment:	9 March 2021	
		
Catchwords:	MIGRATION – Temporary Activity visa – decision of the Administrative Appeals Tribunal – whether the first applicant was a genuine temporary entrant – no jurisdictional error – application dismissed. 	
		
Legislation:	Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), cll 408.213, 408.311 of Sch 2   	
		
Cases cited:	Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80	
		
Number of paragraphs:	76	
		
Date of hearing:	5 March 2021 	
		
Place:	Perth	
		
Applicants:	The first applicant appeared in person and on behalf of the second applicant and the third applicant	
		
Counsel for the First Respondent:	Ms A Ladhams	
		
Second Respondent:	Submitting appearance, save as to costs	
		
Solicitor for the Respondents:	Australian Government Solicitor	

ORDERS
	PEG 111 of 2020	
 	
BETWEEN:	ANUP SINGH
First Applicant

JATINDER KAUR
Second Applicant

MANRAJ KAUR
Third Applicant
	
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE KENDALL	
DATE OF ORDER:	9 MARCH 2021	

THE COURT ORDERS THAT:

1.	The application be dismissed.

REASONS FOR JUDGMENT
JUDGE KENDALL
Introduction
1	The applicants are citizens of India. The first applicant and the second applicant are husband and wife respectively. The third applicant is their child. The first applicant arrived in Australia on a Subclass 428 (Religious Worker) visa on 20 October 2012 (Court Book (“CB”) 90-91). His wife and child were members of the family unit on that visa and arrived in Australia on 7 December 2012 (CB 92-96). Thereafter, the applicants held three Temporary Work (Long Stay Activity) visas.
2	On 1 June 2017, the applicants applied for a further Temporary Activity (subclass 408) visa (the “visa”) (CB 1-53). The first applicant was the primary applicant. The other applicants were named as members of the family unit. The first applicant indicated that he would be undertaking religious work as a Sikh Priest and Chaplain.
3	On 27 July 2017, a delegate of the first respondent (the “Minister”) refused to grant the first applicant the visa (CB 57-63). The delegate was not satisfied that the first applicant met the requirements of cl 408.213 of the Migration Regulations 1994 (Cth) (the “Regulations”). In particular, the delegate was not satisfied that the first applicant “genuinely intended to stay in Australia temporarily” to carry out his religious activities. As the first applicant did not meet the primary criteria, the delegate found that the second and third applicant could not be granted the visa (CB 65-71).
4	On 9 August 2017, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 75-85).
5	The applicants attended a hearing before the Tribunal on 10 March 2020 (CB 124-127). The applicants requested that the Tribunal hear evidence from two witnesses (CB 119-121). The applicants also provided two letters of support prior to the hearing (CB 122-123) and further supporting documents on the day of the hearing (CB 128-144).
6	On 10 March 2020, following the hearing, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 147-151).
7	On 6 April 2020, the applicants applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error. 
Tribunal’s Decision
8	The Tribunal’s decision is 5 pages long and spans 36 paragraphs. 
9	The Tribunal identified the type of visa the applicants had applied for and noted that the delegate had refused the visa on the basis that the first applicant did not meet cl 408.213 of the Regulations (at [1]-[4]).
10	The Tribunal then explained that the first applicant and the second applicant had both given evidence at the hearing (at [5]). It was also noted that the witnesses that the applicants had asked the Tribunal to take evidence from did not appear. However, the Tribunal accepted that the supporting documentation regarding the valuable contribution the first applicant made to their respective organisations was true and correct (at [6]).
11	The Tribunal identified that the issue before it was whether the first applicant genuinely intended to stay in Australia temporarily for the purpose which the visa was granted (at [8]). The Tribunal noted that assessing the claims might require an assessment of the applicants’ credibility (at [9]). 
12	The Tribunal then set out the relevant legislative criterion, as follows:
Genuine intention to stay temporarily – cl.408.213
11. 	It is a common criterion for the grant of a Subclass 408 visa that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.408.213. In assessing this, the Tribunal must have regard to the following:
(a) 	if the applicant has held a substantive visa – whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and 
(b) 	whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and 
(c) 	any other relevant matter. 
13	The Tribunal noted that the applicant sought the visa for the purpose of undertaking the tasks as a Religious Worker (at [12]).
14	In considering whether the first applicant had substantially complied with the conditions imposed on previous visas, the Tribunal accepted the applicants had complied with their visa conditions and was satisfied that there was no other evidence to suggest that they did not (at [13]-[16]).
15	The Tribunal was also satisfied that there was no evidence to suggest that the applicants did not intend to comply with the conditions imposed on the visa if the visa were granted (at [17]-[18]).
16	When considering “all other relevant matters”, the Tribunal had regard to the material on the Departmental file and the Tribunal’s file (including the applicant’s oral evidence at the hearing) (at [19]).
17	The Tribunal noted that the first applicant had arrived in Australian in October 2012 as a Religious Worker. It accepted that he was highly valued in the community and that he had made an important contribution to the organisations and individuals he interacts with (at [20]-[21]). The Tribunal also noted that the first applicant had relevant qualifications and experience in his role and that he had described that role to the Tribunal at the hearing (at [22]).
18	The Tribunal then recorded that it had explained to the applicants that the visa is not intended as a means for maintaining ongoing residence in Australia (at [23]). It also explained to the first applicant that his immigration history was of some concern (at [24]).
19	The Tribunal then stated:
25. 	On 20 October 2012 he entered Australia on a Religious Worker (subclass 428) visa. Once in Australia he has lodged and been granted four Long Stay Activity (subclass 401) visas in the religious worker stream. When he was granted the most recent Long Stay Activity (subclass 401) visa he was counselled regarding the time spent in Australia on religious worker visas and subsequently granted a further one year stay although a further two years was requested. The applicant acknowledged that this was an accurate representation of the facts as he recalled them.
26. 	The Tribunal noted that the applicant subsequently then applied for a Temporary Activity (subclass 408) visa requesting a further two years. 
20	The Tribunal noted that at the time of the hearing, the applicant had spent over 7 years in Australia (at [27]).
21	The Tribunal then summarised the delegate’s decision and noted that the delegate had referred to “policy” which stipulated that if the grant of the visa would result in an applicant exceeding four years stay in Australia, then the period of stay granted should allow the holder only enough time to finalise their current assignment in Australia and depart, or allow only enough time for them to apply for a another visa subclass if they are eligible and state their intention to do so. The Tribunal noted that the first applicant had stated that he was aware of this information (at [28]-[29]).
22	The Tribunal continued:
30. 	The Tribunal explained to the applicant that it had noted that since 2004, according to his visa application, that he had only spent approximately 2 years in his home country, on whose Passport he was travelling. It also observed that more than 7 years in Australia is unlikely to fit the definition of a temporary stay. He acknowledged that this was a correct assertion and that he had not intended a temporary stay.
31. 	The Tribunal went on to state that according to his most recent visa application, which is the subject of this review, he had applied to stay until 8 June 2019. It is now 8 months post that date. The applicant explained that he had wanted to find an alternative visa pathway. He had sought some advice but the options were expensive and uncertain of success. Both he and Mrs Singh stated that they wanted to stay in Australia and in part this was motivated by their desire to ensure their daughter would benefit from a better education. They also explained that she had been educated entirely in the English language and Australian curriculum and this would not be possible upon their return to India. The Tribunal has some sympathy in regards to these circumstances.
32. 	Having accepted all of the evidence placed before it the Tribunal is satisfied that the visa applicant is both valued by the community and he values the work he undertakes in his chosen vocation. The Tribunal has however formed the view that if the sponsor wants to maintain the applicant’s services and continue to employ him, they should seek appropriate advice and consider sponsoring him on a more appropriate visa programme.
33. 	Using the temporary activity visa programme to maintain the employment of a religious worker on an ongoing basis is not, in the Tribunal’s view, consistent with the purpose of the temporary activity programme. It is not appropriate to circumvent proper channels through the use of temporary visas over an extended period of time in order to maintain ongoing residence in Australia.
23	The Tribunal was not satisfied that the first applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted. Accordingly, the requirements of cl 408.213 were not met and the Tribunal affirmed the decision not to grant the applicants the visa (at [34]-[36]).
Proceedings in this Court
24	The applicants’ application for judicial review filed 6 April 2020 provides 3 grounds of review as follows:
Ignoring materials the decision- maker was required to looked at:
Since 2012 I have been working as a religious worker for the Sikh community in Australia. After working in two Sikh places of worship in Perth, I have been serving as a religious worker with The Gurmat Parcher Sewa Society of Australia Inc. in the education and health sector as well. Besides community’s religious services, I have also been working as a visiting Chaplain in RPH, Perth and Curtain University as well as certain Aged Care Facilities. In multi faith context I have also been offering my services in religious organizations. Still the Hounrable member says that cl.408.213 is not met.
Reaching a decision that is unreasonable in the legal sense:
Despite knowing this I even have not given a chance to apply for substantive visa so that my daughter named Ms Manraj Kaur can continue her studies as she is studying here for the past couple of years in this English speaking country and now has a very good command of English and now it is difficult to settle down way back in India.
Materials the decision-maker should not have looked at:
The member just looked at the years I spent here and not the occupation I worked here for the past 7 years which is utmost important for Sikh community. There is no adverse information against me. Still I have been told that I did not meet cl.408.213. The written evidence provided by the sponsor and the witnesses to the effect that the visa applicant is highly valued within the roles he undertake. The importance of the work Mr. Singh undertakes as a Chaplain/Priest and likewise the contribution he has made at both the Royal Perth Hospital and Curtin University as a visiting Chaplain. I make a worthwhile contribution to the organizations and individuals with whom 1 interface. It acknowledges the messages of support from Ms Augustinsen, the Multi-faith Officer of Curtin University and Mr Read, the Pastoral Care Services Co-ordinator, Royal Perth Hospital Bentley Health Service. 
25	The applicants were given an opportunity to file any amended application, supporting affidavits and an outline of written submissions. 
26	On 3 March 2021, the applicants emailed Chambers. That email included an attachment. The attachment was a Certificate of Appreciation from the Multicultural Communities Council of WA recognising the first applicant’s valuable contribution to the community. It is dated 26 February 2021. The Court marked this as Exhibit 3. It is discussed further below.
27	The first applicant appeared before the Court without legal representation. He spoke on behalf of the second applicant and the third applicant. The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s written submissions. The first applicant did not have copies of these materials with him in Court.  He did, however, indicate that he had reviewed the Court Book.  Counsel for the Minister confirmed that all materials had been sent to the applicants at their designated mailing and email addresses (Exhibit 1).  Counsel for the Minister was asked to summarise the Minister’s written submissions in detail.  Ms Ladhams did so, as discussed further below. A hard copy of the Court Book and written submissions were also given to the first applicant.    
28	The materials before the Court thus include the applicants’ application for judicial review dated 6 April 2020, Exhibit 1, a Court Book numbering 155 pages (marked as Exhibit 2), an outline of written submissions filed by the Minister on 19 February 2021 and Exhibit 3.
29	Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]. 
30	To assist the applicants, the Court explained to the first applicant that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)	where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)	where the decision-maker ignores relevant material: Craig at 198;
(c)	where the decision-maker relies on irrelevant material: Craig at 198;
(d)	where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)	where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)	where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
31	It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 
32	Against this background, the first applicant stated, in effect, that he “was advised by another person to file this application” but was personally of the view that “the Tribunal did nothing wrong.” He further stated that his community “wanted him to stay here and he filed the application because he thought this would enable him to do so”. When the Court confirmed with the first applicant whether he was quite certain that there was nothing he thought the Tribunal “did wrong”, he confirmed that this was the case. He stressed that “in absolute honesty” there was no error. 
33	Despite these submissions, the Court nonetheless asked the Minister to summarise why the Minister was of the view that there was “no error” in the Tribunal’s decision so that the first applicant could, if he wished to do so, respond. 
34	After the Minister had provided submissions, the first applicant stated that the sponsor for a visa he had applied for had had their sponsorship refused for financial reasons. While that may be the case, it is regrettably irrelevant to this application. 
Consideration – grounds of review
Ground 1
35	For ease of reference, ground 1 states:
Ignoring materials the decision- maker was required to looked at:
Since 2012 I have been working as a religious worker for the Sikh community in Australia. After working in two Sikh places of worship in Perth, I have been serving as a religious worker with The Gurmat Parcher Sewa Society of Australia Inc. in the education and health sector as well. Besides community’s religious services, I have also been working as a visiting Chaplain in RPH, Perth and Curtain University as well as certain Aged Care Facilities. In multi faith context I have also been offering my services in religious organizations. Still the Hounrable member says that cl.408.213 is not met.
36	The Tribunal stated: 
 20. 	The applicant has been sponsored by the Gurmat Parchar Sewa Society of Australia Incorporated, for the purpose of his role as a Religious Worker. He entered Australia on that basis on 20 October 2012. The Tribunal accepts the written evidence provided by the sponsor and the witnesses to the effect that the visa applicant is highly valued within the roles he undertakes. The Tribunal acknowledges the importance of the work Mr Singh undertakes as a Chaplain/Priest and likewise the contribution he has made at both the Royal Perth Hospital and Curtin University as a visiting Chaplain.
21. 	The Tribunal accepts the assertion that the visa applicant makes a worthwhile contribution to the organisations and individuals with whom he interfaces. It acknowledges the messages of support from Ms Augustinsen, the Multi-faith Officer of Curtin University and Mr Read, the Pastoral Care Services Co-ordinator, Royal Perth Hospital Bentley Health Service.
…
32. 	Having accepted all of the evidence placed before it the Tribunal is satisfied that the visa applicant is both valued by the community and he values the work he undertakes in his chosen vocation. The Tribunal has however formed the view that if the sponsor wants to maintain the applicant’s services and continue to employ him, they should seek appropriate advice and consider sponsoring him on a more appropriate visa programme.
37	The Court notes that the Tribunal does not expressly refer to the first applicant’s work in “Aged Care Facilities”. The absence of any reference in this regard, if an error, is nonetheless immaterial. The first applicant’s reference to working in aged care facilities was made in support of the argument that he was a well-respected and highly valued member of the community. The Tribunal accepted that the first applicant was a well-respected and highly valued in the community. Hence, the Tribunal accepted what the “aged care work” was purporting to demonstrate. It did not need to expressly reference it. 
38	In ground 1, the applicants appear to be saying that in light of the matters that are referred to in ground 1, the Tribunal should have found that the first applicant met cl 408.213. 
39	Clause 408.213 states as follows:
The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
(a) 	if the applicant has held a substantive visa—whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and 
(b) 	whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and 
(c) 	any other relevant matter. 
40	The Tribunal clearly had regard to whether the first applicant had complied substantially with the conditions of previous visas and intended to comply with any visa condition in the future.
41	The matters that the first applicant refers to in ground 1 were, as recognised by the Tribunal (at [19]), matters that fell within the scope of cl 408.213(c) as “any other relevant matter”. It is apparent that the Tribunal considered these matters (see, [20]-[29]). The Tribunal accepted that the matters referred to in ground 1 demonstrated that the first applicant was a well-respected and highly valued in the community.
42	However, whether the first applicant was well-respected and highly valued in the community was of little weight in determining whether the first applicant genuinely intended to stay in Australia temporarily. 
43	Put simply, while the matters that the applicants refer to in ground 1 were accepted, they nonetheless had little relevance to whether the first applicant genuinely intended to stay in Australia in circumstances where the first applicant himself conceded that he had not intended to stay temporarily (at [30]).
44	Ground 1 is dismissed.
Ground 2
45	For ease of reference, ground 2 provides:
Reaching a decision that is unreasonable in the legal sense:
Despite knowing this I even have not given a chance to apply for substantive visa so that my daughter named Ms Manraj Kaur can continue her studies as she is studying here for the past couple of years in this English speaking country and now has a very good command of English and now it is difficult to settle down way back in India.
46	It is not entirely clear what the applicants are suggesting. It appears they are arguing that the Tribunal’s decision is unreasonable because the applicants were not given a chance to apply for a substantive visa. They might also be arguing that the decision is unreasonable as the Tribunal did not consider the fact that the third applicant would find it difficult to return to India. 
47	In relation to whether the Tribunal’s decision was “unreasonable” because the applicants were not given a chance to apply for a substantive visa, this argument is rejected on the facts. 
48	The Tribunal noted that the first applicant provided the following evidence: 
…The applicant explained that he had wanted to find an alternative visa pathway. He had sought some advice but the options were expensive and uncertain of success…
49	Accordingly, the applicants were given a chance to apply for a substantive visa and had, in fact, obtained advice as to their options in this regard. They had, consciously, not taken any further action.
50	To the extent that the applicants state that they were not given the chance to apply for a substantive visa for the third applicant, the applicants never asked for such an opportunity. Further, as shown in the extract above, the applicants did not demonstrate any intention to do so. Hence, it cannot be said to have been unreasonable for the Tribunal not to have granted an adjournment for inquiries to be made about a substantive application for the third applicant. Nor can it be said that the Tribunal overlooked a claim that the applicants had an intention to apply for a visa on behalf of the third applicant.
51	The Minister submits that the applicants may be asserting that the Tribunal should have taken into account “statutory bars” that may apply should the applicants apply for another visa. On the basis of what is stated above (i.e., that the applicants had explored their opportunities and chosen not to apply for a visa) the Tribunal was not required to consider any possible statutory bars to a further visa (and it was not unreasonable for it not to do so). Further, such considerations are not relevant to determining what the critical issue here was: whether the first applicant was a genuine temporary entrant.
52	In relation to whether it was unreasonable for the Tribunal not to have considered the impact of a refusal on the third applicant, the Court notes that the Tribunal stated that it was sympathetic. It did so with specific reference to the fact that the third applicant had been educated entirely in the English language and within an Australian curriculum. Unfortunately, the impact on the third applicant was not relevant to the assessment of cl 408.213 of the Regulations. The first applicant was required to meet the criterion. 
53	There was no discretion to waive that criterion. There was nothing express or implicit in this particular criterion which made relevant the implications of the refusal decision on the third applicant. Put simply, such a consideration was irrelevant and, as such, there is nothing illogical or unreasonable in the Tribunal’s conclusion in this regard.
54	The Tribunal properly considered the evidence and information before it and came to a logical and intelligible conclusion. The decision-making process and the outcome were entirely reasonable.
55	Ground 2 is dismissed.
Ground 3
56	For ease of reference, ground 3 states:
Materials the decision-maker should not have looked at:
The member just looked at the years I spent here and not the occupation I worked here for the past 7 years which is utmost important for Sikh community. There is no adverse information against me. Still I have been told that I did not meet cl.408.213. The written evidence provided by the sponsor and the witnesses to the effect that the visa applicant is highly valued within the roles he undertake. The importance of the work Mr. Singh undertakes as a Chaplain/Priest and likewise the contribution he has made at both the Royal Perth Hospital and Curtin University as a visiting Chaplain. I make a worthwhile contribution to the organizations and individuals with whom I interface. It acknowledges the messages of support from Ms Augustinsen, the Multi-faith Officer of Curtin University and Mr Read, the Pastoral Care Services Co-ordinator, Royal Perth Hospital Bentley Health Service. 
57	The applicants argue in ground 3 that the Tribunal focussed on how long they had been in Australia. They appear to suggest that the Tribunal should not have considered this. 
58	The length of time the applicants had stayed in Australia was relevant to the Tribunal’s primary determinations. While not a matter that fell within cl 408.213(a) or (b), the Court is satisfied that the length of time already spent in Australia was another “relevant matter” as per cl 408.213(c).
59	Further, clause 408.213 of the Regulations requires a consideration of whether an applicant genuinely intends to stay in Australia temporarily for the purpose for which the visa was granted (i.e., to provide religious services). Clearly, the length of time an applicant has already spent in Australia is probative of that question.
60	Here, the first applicant’s own candid admission was that seven years was not a “temporary” period. He was, as the Tribunal stated, using the visa as a basis to maintain employment on an ongoing, as opposed to a temporary, basis.
61	Accordingly, the length of time the applicants had already been in Australia was relevant to the assessment of cl 408.213. The first applicant himself accepted this at the hearing.
62	The applicants also appear to argue that the Tribunal only looked at how long they had been in Australia (and placed significant weight on this) when there was evidence demonstrating how valued the first applicant was to his community.  They seem to suggest that this factor should have been given more weight.
63	As stated above, it did not matter how good the applicant was at his job or how respected he is within the community. The purpose of the visa is not to enable an individual to maintain employment on an ongoing basis. If that was what the first applicant and his sponsor desired, a different visa scheme was required. 
64	Here, the first applicant’s success in his given role and the contributions he had made were of little weight as evidence that he intended to stay temporarily. That was all that was in issue for the Tribunal. The fact that the Tribunal gave little to no weight to this issue was entirely logical.
65	Ground 3 is dismissed.
Exhibit 3 and Otherwise
66	As noted, Exhibit 3 is a Certificate of Appreciation from the Multicultural Communities Council of WA recognising the first applicant’s “valuable contribution to the community”. 
67	The Court accepts that the first applicant has made a valuable contribution to the community.
68	However, Exhibit 3 carries no weight in these proceedings. The certificate is dated 26 February 2021. It was not before the Tribunal. The reason it was provided to the Court is unclear. It appears, at its highest, to invite impermissible merits review. 
69	The Court, in its duty to the self-represented litigant, has reviewed the Tribunal’s decision for itself for any error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
70	Here, the delegate correctly determined that the visa for the second applicant and the third applicant was refused on the basis that they did not meet cl 408.311 of the Regulations as they were not members of the “family unit” of a person who held a visa. That is, the second and third applicant could not meet the criteria for the visa as the first applicant was not granted the visa. 
71	In contrast, the Tribunal gave no separate consideration to the second applicant or the third applicant in its decision. It simply concluded that the first applicant did not meet cl 408.213 and affirmed the decision.
72	While it would, arguably, have been preferable had the Tribunal made a definitive finding in relation to each applicant, the Court does not consider that the failure to expressly state that the second applicant and the third applicant did not meet the visa criteria amounts to jurisdictional error. Such a finding is necessarily implicit in the Tribunal’s finding that the first applicant could not be granted the visa. 
73	In any event, even if the Tribunal had failed to turn its mind to the second applicant and the third applicant, this oversight would not have been material to the outcome. Without the first applicant satisfying the visa criterion, the second applicant and the third applicant were “doomed to fail” as applicants for the relevant visa. 
74	The Court has otherwise been unable to identify any jurisdictional error. 
Conclusion
75	The application for judicial review has failed to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error. 
76	The application is, accordingly, dismissed.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.	

Associate:

Dated:	9 March 2021