Ajiboye v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 397
•4 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ajiboye v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 397
File number(s): BRG 207 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 4 March 2021 Catchwords: MIGRATION – Judicial review – Student (Temporary) (Class TU) (Subclass 500) visa – notice of intention to cancel – ground for cancellation – fraud of departmental officer – discretion to cancel – no jurisdictional error – dismissed.
MIGRATION – Judicial review – no jurisdictional error – dismissed – costs.
Legislation: Migration Act 1958 (Cth) ss 116(1)(g), 362A, 375A, 376
Migration Regulations 1994 (Cth) reg 2.43(1)(o), cl. 500.212(a)(i)
Cases cited: Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ1
Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679
Grimshaw v Dunbar [1953] 1 All ER 350
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Number of paragraphs: 50 Date of last submission/s: 17 September 2020 Date of hearing: 17 September 2020 Place: Brisbane Counsel for the Applicant: Mr See Solicitor for the Applicant: Chand Lawyers Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 207 of 2020 BETWEEN: OLADAPO TAIWO AJIBOYE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
4 MARCH 2021
THE COURT ORDERS THAT:
1.The amended application filed on 23 June, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,676.00.
REASONS FOR JUDGMENT
JUDGE JARRETT:
By his amended application filed on 23 June, 2020 the applicant seeks judicial review of a decision of the second respondent made on 16 March, 2020 which affirmed a decision of the delegate of the first respondent to cancel his Student (Class TU) (Subclass 500) visa.
The applicant argues that there are three reasons to conclude that the second respondent’s decision is affected by jurisdictional error. First, by reason of certain fraudulent conduct involving the delegate of the first respondent, the applicant’s visa was cancelled. In affirming the decision to cancel the applicant’s visa, the second respondent did not give proper consideration to the lack of involvement by the applicant in that conduct. Second, the second respondent failed to take into account that the applicant had met the primary criteria required for the granting of a subclass 500 visa as determined by the first respondent’s delegate and ignored the evidence that the applicant provided to show that he met those criteria. Third, he argues that the decision was so unreasonable that no reasonable decision maker could have arrived at it.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
BACKGROUND
The following background is taken largely from the written submissions delivered by the first respondent for the purposes of the hearing before me. It was not suggested by the applicant’s counsel that the background recorded in those written submissions was inaccurate. My own consideration of the material in the court book confirms the accuracy of the background set out in the first respondent’s submissions.
The applicant is a citizen of Nigeria. On 29 March, 2017 he made an application for a Student (Subclass 500) visa. He lodged his application electronically via an online processing system. The visa was granted two days after he applied for it on 31 March, 2017.
The applicant arrived in Australia as the holder of a Student (Subclass 500) visa on 27 April, 2017.
On 25 August, 2017 the applicant was issued with a notice of intention to consider cancellation of the visa. The applicant was informed that there was a ground for cancellation under s.116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(o) of the Migration Regulations 1994 (Cth), namely that a departmental employee in the department’s post in Pretoria, South Africa had acted improperly in granting the applicant the visa.
On 8 September, 2017 the applicant responded to the notice. The applicant provided a submission in which he contended that his visa would have been granted even if there was no fraud and otherwise referred to the hardship that visa cancellation would cause.
On 17 October, 2017 the delegate cancelled the visa under s.116(1)(g) of the Act.
On 19 October, 2017 the applicant applied to the second respondent for review of the delegate’s decision. On 3 May, 2019 the second respondent invited the applicant to comment on information from the “Referral to the General Cancellations Network Cancellation Consideration document” which detailed the “corrupt conduct” of the departmental officer who approved the applicant’s visa without authorisation. The applicant provided a submission and evidence in response on 16 May, 2019.
On 24 September, 2019 the applicant was invited to a hearing scheduled for 5 November, 2019.
On 21 October, 2019 the second respondent provided the applicant with redacted copies of two certificates issued under s.376 of the Act and a certificate confirming the revocation of a certificate issued under s.375A. The second respondent invited the applicant’s comment on the certificates.
On 29 October, 2019 the applicant provided further evidence. He provided a further submission on 5 November, 2019 and more evidence on 18 November, 2019.
On 17 March, 2020 the second respondent affirmed the delegate’s decision.
In its reasons for decision, the second respondent recorded that the first respondent’s department had conducted an investigation into the grant of a number of student visas at the department’s post in Pretoria, South Africa. It recorded that redacted reports relating to this investigation were given to the applicant in response to a s.362A request and the applicant did not make submissions on the redactions.
The second respondent set out the circumstances of the fraud as follows: Officer A, based in Pretoria corruptly received payments from Mr C, who was in Australia. Officer A then allocated a number of Nigerian student visa applications to Officer B, who proceeded to approve the applications without the scrutiny required by departmental procedures. Both officers were found to have acted improperly, in breach of their employment conditions. Relevantly, the applicant’s visa application was approved by Officer B. The applicant’s visa application was discussed in detail in a departmental report. That departmental report found that the criteria for the grant of the visa were not met and the original delegate could not have been satisfied that the applicant met the criteria, such as the genuine temporary entrant criterion.
The second respondent found that it was relevant to consider whether, absent the fraud, the visa would have been granted in any event. In that regard, the second respondent was satisfied that, had Officer B properly assessed the applicant against the genuine temporary entrant criterion, that officer would have been concerned with the applicant’s employment and immigration history such that he did not satisfy the genuine temporary entrant criterion. The second respondent also recorded further issues relating to a bogus English language test result provided by the applicant and the questionable authenticity of the bank statements.
The second respondent identified that it was not necessary for a visa holder to have been involved in, or aware of the fraudulent conduct, only that a decision-maker reasonably suspected that the visa was obtained as a result of the fraudulent conduct. Having regard to the “manifest inadequacies” in the applicant’s visa application and supporting documents and the fact that the visa was granted within two days of the application, the second respondent found that that there were grounds for a reasonable suspicion that the applicant’s visa was obtained by the fraudulent conduct of Officer B. Accordingly, there was a ground for cancellation under s.116(1)(g).
The second respondent then considered its discretion to cancel the visa and recorded that it had regard to the following:
(a)the hardship caused by any visa cancellation;
(b)the purpose of the applicant’s stay in Australia, including his continued studies;
(c)his compliance with his visa conditions such as his continued enrolment, payment of tuition fees and the achievement of satisfactory results;
(d)the existence of clear fraudulent conduct from a departmental employee, weighed against the fact that the applicant did not undertake the fraudulent conduct himself;
(e)that the applicant did not behave in any adverse manner towards the department;
(f)that there would be no consequential visa cancellations;
(g)that he may become an unlawful non-citizen liable to removal and could be affected by public interest criterion 4013; and
(h)that there were no relevant international obligations.
The second respondent found that fraudulent conduct was a serious matter which went to the integrity of the immigration system and the applicant’s substantial compliance onshore was insufficient to alleviate its concerns. Specifically, the second respondent said at paragraph [58] of its reasons for decision:
…The integrity of the system cannot be said to be secured merely by a demonstration of substantial compliance once the applicant is onshore. This is particularly the case where the applicant remains onshore and the material needed to assess the genuine temporary entrant component remains unmet.
The second respondent concluded that the visa should be cancelled.
THE APPLICATION FOR REVIEW
Ground 1
The first ground of the amended application is as follows (without alteration):
1.The Second Respondent committed jurisdictional error when reaching its decision to affirm the delegate’s decision to cancel the applicant’s sub-class 500 student visa, by failing to take into account the relevant consideration that the Applicant lacked any knowledge of the visa being obtained as a result of the fraudulent conduct of any person.
Particulars
(i) The Second Respondent has determined that a ground for cancellation of the Applicants visa existed for the purposes of Section 116(g) of the Act. (See decision at paragraph 46)
(ii) The basis in which that ground was established relied on Regulation 2.43(1)(o) of the Migration Regulations 1994. (See decision at paragraph 44).
(iii) When exercising its discretion for the purposes of Section 116(1)(g) of the Act, the Second Respondent failed to take into consideration that the Applicant did not know of the fraud committed that gave rise to a ground for cancellation being established at Regulation 2.43(1)(o).
(iv) Despite the Second Respondent making reference to the fact that the Applicant’s lack of knowledge of a fraud may be an issue relevant to the discretionary factors that need to be considered for the purposes of Section 116(1)(g) of the Act (see paragraph 41 of the decision), thereafter no such consideration was given, other than to say that the fraudulent will conduct had not been committed by him (see paragraph 52 of the decision).
It is not entirely clear from the applicant’s submissions whether he is cavilling with the second respondent’s finding that there was fraud by a person in connection with the grant of the applicant’s visa and that a ground to consider cancellation of the visa was established, or whether his complaint is one which goes to the exercise of the discretion to cancel the visa. I will address both.
At [11]-[12] of the second respondent’s decision, the second respondent identified in a summary way the fraudulent conduct that led to the grant of the applicant’s visa as follows. The reference in those paragraphs to “the report” is to a document entitled Fraud by Locally Engaged visa Processing Officess at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation, a redacted copy of which was given to the applicant and his advisors:
11. The report and the other documents it references describe a Departmental investigation into the conduct of locally engaged staff in Pretoria arising from suspicions that some Nigerian student visa holders had been engaging in criminal activity after arriving in Australia. The Investigation determined that two locally engaged staff had bypassed Departmental procedures in granting student visas to a cohort of Nigerian applicants. One of the staff (“Officer A”) had corruptly received payments from a person in Australia (‘‘Mr C’’, himself a Nigerian student visa holder). The other staff member (“Officer B”) had been allocated a number of Nigerian student visa applications to process by Officer A and had done so without the scrutiny required by Departmental procedures. Officer A and B were both found to have acted improperly and in breach of their conditions of employment.
12. The applicant’s visa application of 29 March 2017 was processed and approved by Officer B, the grant being made on 31 March 2017. The applicant’s visa is discussed in detail in a report titled Investigation Report LES Misconduct (‘‘the Officer B report”) as “allegation three” at paragraphs 94 to 104. A further report specifically on the applicant titled Student (subclass 500) visa assessment - schedule 2 discusses his visa application against the assessment criteria that should have been applied by the assessment officer. The assessment officer sought to verify the information in the visa application by various methods. For reasons of confidentiality, referrals to confirm the authenticity of certain documents (financial documents, employment letters, sponsor letters, school certificates) were not possible in the conduct of the assessment. It is noted that the original delegate (Officer B) did not make any such referrals. The assessment officer concluded that the criteria for the grant of the visa were not met by the applicant because, on the basis of the procedures applicable to visa applicants from Nigeria, the original delegate could not have been satisfied that the applicant was a genuine temporary entrant (GTE), that the English language test document was genuine (finding, in fact, that it was not genuine), or that the authenticity of the provided bank statements had been confirmed.
At [36]-[38] of its reasons, the second respondent set out the test that it was required to consider when determining whether a ground for cancellation of the visa existed, including the guidance offered by the Departmental Policy Manual. The second respondent set out what was required by the phrase reasonably suspects where it is used in reg.2.43(1)(o) having regard to the relevant authorities. In particular, the second respondent correctly recorded that the decision maker must reasonably suspect that the visa was obtained as a result of the fraudulent conduct of any person. It recorded that when assessing the ground for cancellation, the term reasonably suspects requires a causal link to be drawn between the obtaining of the visa and the fraudulent conduct of any person. That is, it is not enough to reasonably suspect that there was fraudulent conduct by a person - the decision maker must reasonably suspect that if it were not for the fraudulent conduct the visa would not have been granted. It is not suggested on this application that any of what was said by the second respondent about those matters was incorrect.
The applicant argues that there is no suggestion in the second respondent’s reasons for decision that it considered that the application for visa was not made by the applicant with “clean hands”. He argues that if the visa was to be cancelled on the basis of reg.2.43 of Subdivision 2.9.2 of the Regulations:
[17] …then what position should the Applicant had found himself in arising out of the conduct of a dishonest delegate of the First Respondent? That is:-
(i)Should the Applicant have the burden of establishing whether or not the delegate of the First Respondent did undertake the necessary inquiries? If not, what is the burden of proof that the First or Second Respondent should satisfy before cancelling the Applicant’s visa.
(ii)If the First Respondent, following its review of the issues, formed the view that the documentation supporting the application was incomplete, should the Applicant be given the further opportunity to provide any additional materials in support of his application.
It is not entirely clear what these submissions mean, but what is clear from the second respondent’s reasons for decision is that:
(a)the second respondent did take into account the applicant’s submission that it could not be established that he was personally involved in the fraud. At [15] the second respondent said:
15. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. The applicant’s first submission was that it cannot be established that the applicant was personally involved in the commission of any fraud. It is, of course, understood by the applicant that the ground for cancellation is the fraud “of any person” but I accept that it is appropriate in a case where the fraud is alleged to have been committed by another without the knowledge of the applicant to consider the circumstances more closely than where the fraud is that of the applicant. In particular, it is relevant to consider whether, absent the fraud, the visa would have been granted in any event.
(b)the second respondent determined that it was not to the point that the applicant did not know of the fraud committed at the post in Pretoria. In that respect the second respondent observed:
41. It is not to the point, but may be relevant to the discretionary factors, that the applicant did not know of the fraud committed at post in Pretoria. It is sufficiently clear in the wording of the regulation and the Procedures Advice Manual that a visa may be cancelled if it is reasonably suspected it was obtained as a result of the fraudulent conduct of any person, including a Departmental employee.
The second respondent’s determination that it was not to the point that the applicant did not know of the fraud was plainly correct having regard to the Regulations.
Between [17] and [36] the second respondent considered the material put before the original delegate and the assessment made by a person described as an “assessment officer” of that material for the purposes of determining the likelihood of the applicant being granted a visa on that material if it was properly assessed. The second respondent considered those matters carefully for the purpose of determining whether it had a reasonable suspicion that if it were not for the fraudulent conduct, the visa would not have been granted. It then expressed its conclusion about this issue at [42]-[44] as follows:
42. It is accepted that, to have a reasonable suspicion that the applicant's visa was granted as a result of the fraudulent conduct there would need to be some evidence the visa would not have been granted but for the fraud. Contrary to the applicant’s submission, there is clear evidence that the applicant did not provide all the vital documents that were required at the time: he did not provide an employment letter. Further, as has been discussed above, the nature of the information and documents provided by the applicant in his visa application should have put the processing officer on enquiry. In the circumstances, it seems to me abundantly clear that the visa, if properly processed, could not have been granted on the basis of the documents and information supplied by the applicant. To the extent that the applicant's current results might act as some proof of his ability as a genuine student, this does not pertain in any way to the grant of the visa on the basis of unsatisfactory information and documents, but it is a matter I will take into account when considering the discretionary factors.
43. It therefore cannot be accepted that the documents submitted by the applicant make it clear that he met the visa criteria.
44. When I take into account the fact that the visa was granted within the space of two days after application and with the manifest inadequacies as to information and documents discussed above, and when the visa has been processed by a person whose participation in the fraudulent behaviour at post has been acknowledged, it is open to me to find (and I do find) that there are grounds for a reasonable suspicion that the applicant's visa was obtained by the fraudulent conduct of Officer B. In making this finding I have had regard only to the circumstances of the applicant's visa application and not to the other cases in this cohort.
At [46] of its reasons, the second respondent recorded that given its satisfaction that the ground for cancellation in s.116(1)(g) existed and that cancellation was not mandatory, it was required to proceed to consider whether the visa should be cancelled.
Thus, the second respondent’s reasons demonstrate that:
(a)it was alive to the fact that the applicant was not involved in the fraudulent conduct of the departmental employee;
(b)it was aware that the applicant’s lack of involvement in the fraudulent conduct was irrelevant to a consideration of the particular ground for cancellation engaged by the facts of the case;
(c)it was alive to the relevance of the applicant’s lack of involvement in the fraud to the discretionary exercise that arose upon the finding that a ground for cancelation existed; and
(d)it took that matter into account in his favour. It cannot be suggested that that matter was given no consideration by the second respondent.
Accordingly, to the extent that the applicant might have been seen to be submitting that the second respondent was in error to disregard the applicant’s lack of involvement in the fraud leading to the grant of the visa for the purposes of determining whether a ground for cancellation existed, the submissions cannot be accepted. The second respondent’s approach to that matter was correct.
The first respondent argues that the applicant’s real complaint under this ground of review is with the weight attributed to this matter by the second respondent when carrying out the discretionary part of the exercise. I accept that submission. It is borne out by the applicant’s own submissions before me. However, it is well established that it was for the second respondent, as part of its fact finding function, to identify the material and considerations that it found relevant and to give to those matters the weight considered by it to be appropriate: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]. As I have set out above, it was a matter that was considered and weighed by the second respondent.
The applicant sought to support his submissions by references to obiter in Grimshaw v Dunbar [1953] 1 All ER 350, Tabag v Minister for Immigration and Ethnic Affairs (1982) 45 ALR 705 and Federal Commissioner of Taxation v Swift and Others (1989) 18 ALD 679 to the effect that the attribution of very little weight to a matter deserving of much weight may come so close to ignoring a relevant consideration as to amount to an error of law. But ultimately these statements do not assist the applicant because the second respondent considered the matter and weighed it against the other matters identified by it as I have set out above. That was the second respondent’s task. To hold in the circumstances of this case that the second respondent did not attribute sufficient weight to the fact that he was not involved in the relevant fraud would be to simply supplant the second respondent’s view of the merits with my own. On this application, that is impermissible.
This ground reveals no jurisdictional error.
Ground 2
The second ground of the amended application is as follows (without alteration):
2. The Second Respondent committed jurisdictional error when reaching its decision to affirm the delegate’s decision to cancel the applicant’s sub-class 500 student visa, by failing to take into account the relevant consideration that the Applicant had satisfied all of the requirements for a subclass 500 Student Visa in accordance with the relevant provisions of the Migration Regulations Act 1994.
Particulars
(i) The Applicant had provided evidence that he had intended to genuinely stay in Australia temporarily (GTE)(cl500.212);
(ii) The Applicant had an English language proficiency that met the requirement specified in an instrument(cl500.213); and
(iii) The Applicant had genuine access to funds of a kind to meet costs and expenses(cl500.214); and
Again, it is not clear if this ground is directed to the finding concerning the ground of cancellation or the discretionary exercise called up by a positive finding that a ground for cancellation existed.
As to the former, the second respondent considered the material before the original delegate and the assessment made of that material by the investigation into the grant of the applicant’s visa. For the reasons expressed by the second respondent (some of which are set out above) the second respondent concluded that a ground to consider cancellation was made out. That was because the second respondent found that there was a connection between the fraudulent conduct of the departmental employee and the grant of the visa. Contrary to the assertion in this ground, the applicant was not found to have satisfied all of the requirements for the grant of the relevant visa. Whilst the original delegate may have determined that the applicant was entitled to the visa, given the fraud involved, those findings were unreliable. That was the point of the investigation and the consideration given by the second respondent to the material and the assessment of that material made during the investigation. As a result of its consideration of that material, the second respondent concluded that had the original delegate carried out their duty faithfully, the visa would not have been granted because the material before the delegate was insufficient to satisfy the visa criteria and in particular the genuine temporary entrant requirement.
No error of approach is demonstrated by the second respondent’s reasons. At best, this ground just expresses the applicant’s disagreement with the conclusions reached by the second respondent in relation to the material he gave to the delegate with his visa application.
If this ground is directed to the exercise of the discretion to consider cancelling the visa, it has no merit either. That is because the matters about which the applicant complains are matters that were considered by the second respondent whilst determining whether a ground for cancellation of the visa existed. In any event, the ground proceeds on the false assumption that the applicant had satisfied all of the requirements for a subclass 500 student visa. The second respondent determined that the material given by the applicant in support of his application was likely insufficient to lead to the granting of the visa if the initial delegate had performed his or her task conscientiously.
On more than one occasion in his submissions, the applicant relied upon a statement by the second respondent about the applicant’s genuine temporary entrant statement furnished to the original delegate. It was suggested that the second respondent “concurred with the assessment officer who reviewed the initial delegate’s decision that the Applicant provided a convincing GTE statement”. In context, this is what the second respondent said:
Availability of courses in country of residence.
17. The assessment officer noted: "Similar courses are available in Nigeria. The visa holder has, however, provided a convincing GTE statement to support his decision to study in Australia. My only concern is that the applicant holds a Bachelor's degree but is choosing to study at the lower level of a Diploma.''
18. The applicant's expressed passion for a career as a "professional supervisor engineer" in his GTE statement was abandoned before commencement of the course, in preference for a qualification in aged care services. It is, of course, open to holders of student visas to change their enrolment but a change from management (which would be applicable to the applicant's tertiary qualifications) to aged care (which would not) seems dramatic and puts the sincerity of his GTE statement in question. Nevertheless, for the purposes of this application I have given the applicant the benefit of the assessment officer's observation.
The applicant points out that in addition to the above statement, the second respondent:
(a)noted that at the time of the visa application being granted that the applicant had not provided an employment letter though acknowledged that it was provided with an employment letter at the hearing of the matter; and
(b)verified the applicant’s university degree but not his senior school certificate.
He argues that these matters were relevant considerations that should have been taken into account when the second respondent reached its view for the purposes of cl.500.212 (a)(i). But the second respondent was not required to reach a view about cl.500.212(a)(i) of the Regulations. His task was to determine if a ground for cancellation existed and if so, whether to the cancel the visa.
In the context of the first question to be answered by the second respondent, the applicant submits that the way in which the second respondent dealt with his immigration history was procedurally unfair. At paragraph [24]-[25], the second respondent recorded the assessment officer’s statement that while the applicant had stated he was refused a Canadian visa for “no tangible reason” the assessment office was unable to verify that claim because there was “no FCC match for fingerprints”. The only opinion expressed by the assessment officer was that they were unable to verify the applicant’s claim. The second respondent accepted that but then went on to express its own opinion namely, that it considered that a disinterested visa processing officer would have been put on inquiry by the applicant’s disclosure that he was refused a Canadian visa “for no tangible reason”. That conclusion was relevant to the second respondent’s determination that the visa would not have been granted to the applicant but for the fraud of the initial delegate.
The applicant submits that the Tribunal ought to have sought additional information in respect of his immigration history and the refusal of his application for a visa in Canada. But that submission misapprehends the second respondent’s task. As I have pointed out above, the second respondent’s task was to determine whether the visa would have been granted had the fraud not occurred. The relevant consideration was whether the visa would have been granted notwithstanding the fraud and that required a consideration of the material before the initial delegate and not material that the applicant might have been able to put before the second respondent on the review. The second respondent was not reviewing a decision not to grant a visa. I accept the first respondent’s submission that the second respondent was not required to seek further information in respect of the applicant’s immigration history. Nor was it required to put its concerns to the applicant in this regard for comment. There was no procedural unfairness in this approach by the second respondent.
Ground 3
The third ground of the amended application is as follows (without alteration):
3. The decision of the Second Respondent to affirm the decision of the delegate to cancel the visa of the applicant in accordance with Section 116 of the Migration Act 1958, was manifestly unreasonable in the circumstances, in a manner that gives rise to jurisdictional error.
Particulars
(i)In reaching its decision the Second Respondent found:
(a)the Applicant's visa was granted as a result of the fraudulent conduct of the Departmental employee, but no finding that the Applicant was in any way implicated in that activity.
(ii)When reaching its decision, the Second Respondent failed to give proper consideration to the submissions filed by the Applicant on 18 November 2018, that:--
(a) Clarified the validity of the PTE test and the email address provided by the Applicant for the purposes of cl 1500.213;
(b) Reinforced what the employment prospects of the Applicant would be when he returned to his home country for the purposes of cl 1500.212; and
(c) Confirmed the Applicant's financial capacity to meet his commitments during the duration of the applicant's stay in Australia for the purposes of cl 1500.214.
(iii)The Second Respondent failed to take into account the fact that the Applicant had satisfied all the requirements of the sub-class 500 visa; and
(iv)The Second Respondent misdirected itself insofar as it was required to satisfy itself that the grounds for cancelling the visa had been properly established on the facts and not shift that obligation to the Applicant to establish that the facts or grounds do not exist. Specifically
(a) In relation to whether the Applicant had genuine access to funds of a kind to meet costs and expenses (cl500.214), the Second Respondent appears to rely on "apparent non-verification of the bank statements submitted" (paragraph 35 of the decision);
(b) In relation to whether or not the Applicant had met the English language proficiency requirement specified in an instrument (cl500.21 3), despite providing further clarification of the issue to the Second Respondent in submissions on 18 November 2019, the Second Respondent does not appear to have verified the same;
(c) In relation to whether or not the Applicant had intended to genuinely stay in Australia temporarily (GTE)(cl500.212),' the Second Respondent claims that the Applicant's sincerity was in question (See paragraph 18 of the decision), despite the fact that the assessment office had opined that the Applicant had provided a "convincing GTE statement to support his decision to study in Australia" (see paragraph 17 of the decision) and the change of course undertaken by the Applicant had been approved by the PRIMS (PROVIDER REGISTRATION AND INTERNATIONAL STUDENT MANAGEMENT SYSTEM as established under the Education Services for Overseas Students Act 2000.
As to this ground, the applicant argues that the second respondent’s consideration of the discretion to cancel the visa set out at [47]-[57] of its reasons is inconsistent with paragraph [58] of its reasons. The latter paragraph is as follows:
58. The fact that a visa may have been granted as a result of fraudulent conduct, whether of the applicant or another person is a serious matter going to the integrity of the immigration system. In the matter before me, as noted throughout this decision, there remain significant gaps in the material required of the applicant in order for the visa properly to be granted. The integrity of the system cannot be said to be secured merely by a demonstration of substantial compliance once the applicant is onshore. This is particularly the case where the applicant remains onshore and the material needed to assess the genuine temporary entrant component remains unmet.
He argues that the conclusions expressed in this paragraph seem “at odds with the reasons given within the decision”. But on fair reading of the second respondent’s reasons, that is simply not apparent. The second respondent’s reasons demonstrate an engagement with the matters raised by the applicant and the matters considered relevant by the second respondent guided by the Policy Advice Manual including, the purpose of the applicant’s travel and stay in Australia; the extent of his compliance with his visa conditions; the degree of hardship that he and his family may suffer if the visa were cancelled; the circumstances in which the ground for cancellation arose including the applicant’s lack of involvement in that; whether there was any adverse behaviour by the applicant towards the department; whether there were any dependent visa holders who would face consequential cancellation; the consequences of the applicant’s visa being cancelled and whether Australia had any international obligations in respect of the applicant.
Although the applicant referred me to Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ1, I prefer to apply the test formulated by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 esp. at [131]. Applying that test, it cannot be said that no other rational or logical decision maker could have drawn the same conclusion on the material before the second respondent.
This ground of review does not demonstrate jurisdictional error by the second respondent.
CONCLUSION
The applicant does not demonstrate that the second respondent’s decision is affected by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 4 March, 2021. Associate:
Dated: 4 March, 2021
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