Ali v Minister for Immigration

[2019] FCCA 1931

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1931

Catchwords:
MIGRATION – Application for reinstatement of reinstatement application – where substantive proceedings and then first reinstatement application had been dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) for non-appearance.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Cases cited:

CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

First Applicant: ABDUL HAMEEM ALI

Second Applicant: FERAZNA FAREEN SHAH

Third Applicant: ASHIR ABDUL ALI

Fourth Applicant: ARHAM ABDUL ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3010 of 2017

Judgment of: Judge Barnes

Hearing date: 1 July 2019

Delivered at: Sydney

Delivered on: 1 July 2019

REPRESENTATION

The Applicants: First Applicant in person

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application in a case filed on 17 May 2019 be dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $1,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3010 of 2017

ABDUL HAMEEM ALI

First Applicant

FERAZNA FAREEN SHAH

Second Applicant

ASHIR ABDUL ALI

Third Applicant

ARHAM ABDUL ALI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) seeking reinstatement of an earlier reinstatement application.

2. These circumstances require some explanation.  On 24 August 2017 the Administrative Appeals Tribunal (the Tribunal) affirmed a decision to cancel the First Applicant’s Subclass 457 Temporary Work (Skilled) visa.  The Tribunal also found that it had no jurisdiction with respect to review applications of the First Applicant’s wife and two children – now the Second, Third and Fourth Applicants. 

3. The Applicants sought review of the Tribunal decision by application filed in this court on 28 September 2017.  The grounds of review take issue with the Tribunal’s findings in relation to the First Applicant who, for convenience and except where it requires clarification, I will refer to as the Applicant. 

4. On 15 November 2017, a registrar of the court made orders which included appointing the First Applicant as litigation guardian for the Third and Fourth Applicants and for the filing of any amended application and additional evidence.  The matter was listed for callover before me at 11am on 13 March 2019.  The place, time and date were specified in the registrar’s orders. 

5. On 13 March 2019, there was no appearance by or on behalf of the Applicants. I dismissed the application for non-appearance pursuant to r.13.03C(1)(c) of the FCC Rules.

6. The Applicant sought reinstatement in an application in a case filed on 8 April 2019 which I will refer to as the first reinstatement application.  In support of that application, the Applicant filed an affidavit attaching a report from a dental surgery.

7. The first reinstatement application was listed for directions before me at 9.30am on 2 May 2019.  The time, date and place for the directions hearing were all specified in the filing and hearing details in the “Notice of Filing and Hearing Details”. 

8. There was no appearance by or on behalf of any of the Applicants at the directions hearing on 2 May 2019. At 9.55am I dismissed the first reinstatement application pursuant to r.13.03C(1)(c) of the FCC Rules.

9. The Applicant filed another application in a case on 17 May 2019 which, in effect, was seeking reinstatement of his reinstatement application (the second reinstatement application).  That application was supported by an affidavit dated 16 May 2019 which included a statement that the Applicant “just missed” his train, reached the city by 9:50am, made “all attempts” to contact the registry and was advised the matter “had already been soughted (sic)”. 

10. The second reinstatement application was listed for directions on 29 May 2019 at the time and place listed on the “Filing and Hearing Details” form.

11. The Applicant attended the directions hearing on 29 May 2019.  I made orders for the Applicants to file any affidavit evidence and written submissions and that the second reinstatement application be listed for hearing today at 2:15pm and that if that application was successful, the first reinstatement application would be heard at 3pm. 

12. Subsequently, the Applicants sought and were granted additional time to file further evidence.  The Applicants sent a document described as an affidavit (but attaching written submissions) to the Registry on 26 June 2019.  I understand that the Registry was unable to open this document and it was not formally filed at that time.  However the Minister’s lawyer has provided the court with a copy and I have taken it into account.  In these circumstances my associate will ensure that it appears on the electronic court file.  It attaches a two-page document described as a written submission which addresses the Applicant’s personal circumstances and takes issue with the cancellation of his visa.  The Minister filed written submissions.

13. While Mr Ali arrived late today, it appears that he may have misunderstood whether he needed to be here at 2.15pm or 3pm.

14. In any event, in addition to being cross-examined on his affidavit of 16 May 2019.  Mr Ali was given the opportunity to make submissions in support of his reinstatement application. 

15. In order to consider the application for reinstatement it is necessary to refer to circumstances that preceded the Tribunal decision and to the Tribunal decision. 

16. On 1 September 2015 Mr Ali was granted a Subclass 457 (Temporary Work (Skilled)) visa.  His wife and children were granted visas as members of his family unit.  His visa was subject to conditions which included condition 8107 in Schedule 8 to the Migration Regulations.  Under cl.8107(3) this condition required him to work only in a position in the business of his standard business sponsor and that if he ceased employment the period during which he ceased employment must not exceed 90 days. 

17. Mr Ali’s nominated sponsor, Kashmir Transport Pty Ltd, informed the Department on 20 October 2016 that Mr Ali had tendered his resignation on 6 June 2016 and that his last day of work was 8 July 2016 and provided his contact details. 

18. On 27 October 2016 the Department issued a Notice of Intention to Consider Cancellation (NOICC) indicating that it appeared that Mr Ali had breached condition 8107.  Mr Ali responded to the NOICC through his migration agent.  He claimed that he had ceased his employment with his sponsor in circumstances where his relationship with his wife had become strained from April 2016, that this had an adverse impact on his work and that he had resigned to “set his house in order” and that he planned to return to work.  He claimed his employer would be willing to take him back, that visa cancellation would affect his future and his children and that the family had spent money establishing themselves in Australia and would have difficulty if they returned to Fiji.  He claimed that the breach of his visa condition was due to circumstances that were compelling, compassionate and beyond his control.

19. However, a delegate of the Minister decided to cancel the Applicant’s visa.  It followed that the visas of the members of his family unit were automatically cancelled under s.140 of the Act.

20. The Applicants sought review by the Tribunal.  They provided the Tribunal with a copy of the delegate’s decision.  The Applicants were invited to attend a Tribunal hearing.  After several issues in relation to postponement requests by Mr Ali, he ultimately appeared at a Tribunal hearing.  At that hearing he provided the Tribunal with a letter from his sponsor stating that his role as Corporate Services Officer Administration Manager was still available and a supporting statement from his wife in which she referred to resolution of the couple’s marital problems which were said to be the reason for the resignation.  The Applicant also provided the Tribunal with copies of his older child’s school awards. 

21. In its reasons for decision the Tribunal found that the only decision before it for consideration was the visa cancellation decision with respect to the First Applicant.  The Tribunal recorded that the other Applicants’ visas had been automatically cancelled as a consequence of that cancellation by force of s.140(1) of the Act which made such cancellation self-executing on the cancellation of the First Applicant’s visa.  The Tribunal concluded that as no decision was involved in the visa cancellation under s.140 of the Act, it had no jurisdiction in relation to the Second, Third and Fourth Applicants. 

22. The Tribunal considered whether the ground in cancellation of the Applicant’s visa existed.  It noted that under s.116(1)(b) of the Act a visa may be cancelled if the decision-maker was satisfied that the holder had not complied with a condition of the visa.  It observed that condition 8107(3) (which applied to the Applicant’s visa) relevantly required, among other things, that the visa holder work only in a position in the business of his standard business sponsor or an associated entity and that if he ceased employment, the period of cessation must not exceed 90 consecutive days.  The Tribunal found that, as the Applicant acknowledged, he had ceased employment in July 2016, he did not return to that employment and that a period of more than 90 consecutive days had passed since the Applicant ceased his employment.  The Tribunal was satisfied that the Applicant had not complied with condition 8107(3)(b) of his Subclass 457 visa and hence that the ground for cancellation existed. 

23. The Tribunal acknowledged that this ground did not require mandatory cancellation under s.116(3) of the Act.  It considered whether the power to cancel the visa should be exercised. 

24. The Tribunal recorded that there were no matters specified in the Act or Regulations that were required to be considered in relation to the exercise of the discretion to cancel this visa.  The Tribunal stated that it had had regard to the relevant circumstances including, but not limited to, matters identified in departmental policy.

25. The Tribunal discussed the issues that had been raised by the Applicant.  It referred to the Applicant’s written submission in response to the NOICC. 

26. The Tribunal also addressed the circumstances in which the Applicant had sought adjournments of the Tribunal hearing and had been late attending the hearing.  The only evidence before the court as to what occurred at the Tribunal hearing is the Tribunal’s account in its reasons.   The Tribunal recorded that in response to the Applicant’s claim at the hearing that train difficulties on the morning of the (second) scheduled hearing explained why he had been “held up”, it had put to him that it had checked the Sydney Trains website and ascertained that there had been no service interruptions in the previous four hours on the Applicant’s line.  The Applicant had then claimed that he had lost his wallet at the station and this was why he was late for the hearing.

27. The Tribunal also noted that the Applicant was wearing a Hewlett Packard jacket at the hearing, but when asked if he worked for Hewlett Packard, had said it was not his jacket and that he had borrowed it from his brother and had denied working for Hewlett Packard. 

28. The Tribunal addressed in some detail the Applicant’s evidence about his circumstances, including the basis on which he claimed he had left his job; whether he had worked since that time and received any payment; his purpose for remaining in Australia; any concerns regarding compliance with conditions; any hardship that may be caused by visa cancellation.  It stated that it had given him the opportunity to address the impact on his wife and children, as it recorded. 

29. The Tribunal recorded that it had raised with the Applicant the issue of whether there was a need for the position in question, given that he had not been replaced in over 14 months since he stopped working for his former sponsor.  

30. The Tribunal also stated that it gave the Applicant the opportunity to raise any other evidence he wished to have taken into account.  He raised his family’s circumstances and claimed difficulties returning to Fiji.

31. Under the heading “Assessment of the evidence”, the Tribunal stated that it had considered all the written and oral evidence regarding the Applicant’s circumstances.  It recorded that he acknowledged that he had breached condition 8107 because he ceased his employment with his sponsor and had not worked in that employment for more than 90 days; that he claimed he did this because of marital problems and that he had wanted to stay home with his wife to assist her to settle in Australia. 

32. However the Tribunal found that the Applicant’s oral evidence regarding his employment since resigning from Kashmir Transport was inconsistent.  Initially he had claimed he was working for his sister and nephew’s building business doing unskilled work and that he was paid cash in hand.  When the Tribunal raised with him its concerns that he was undertaking unskilled work and not paying income tax, the Applicant had indicated that he wished to retract that evidence and claimed that he was not really working, just helping.  The Tribunal was of the view that this led to concerns about the reliability of the Applicant’s evidence.  The Tribunal also had concerns that the Applicant had been undertaking other work.  It was not persuaded by his evidence that he was wearing his brother’s Hewlett Packard jacket. 

33. The Tribunal found that the Applicant’s evidence regarding the reasons he was late for his Tribunal hearing was vague and inconsistent.  Given the absence of serious interruptions to the trains, it did not accept his evidence he was late because of train difficulties.  The Tribunal had concerns the Applicant had manufactured his evidence about losing his wallet to overcome difficulties arising from his earlier evidence.  The Tribunal also expressed concern about the Applicant’s evidence about his claimed reasons for not returning to his sponsored employment.  Overall, the Tribunal had concerns about whether the Applicant was a reliable witness. 

34. In relation to the Applicant’s purpose for remaining in Australia, the Tribunal accepted that he wished to remain here permanently, that he wanted his children to enjoy a better life and his older child to complete his kindergarten year, for which the fees has been paid.  It noted his evidence that if he remained a holder of a temporary visa for two years, he could apply for permanent residence.  However the Tribunal found that the purpose of the Subclass 457 visa was to temporarily fill a skilled shortage and that this was the purpose for which the Applicant’s visa had been granted, but that he had chosen to resign.  The Tribunal acknowledged that the Applicant’s former employer had indicated in a letter of 20 June 2017 that the position was still vacant and that the business was still willing to employ the Applicant.  However it had regard to the fact that the Applicant was no longer the subject of an approved nomination that had not ceased and there was no evidence that Kashmir Transport had lodged another nomination application.  The Tribunal also had concerns as to whether the business genuinely needed the role the Applicant had filled, given that it had remained vacant since he resigned in mid 2016.  It accepted that the Applicant wished to stay in Australia because three of his siblings were Australian citizens, but found that this was not the purpose of a Subclass 457 visa.  The Tribunal gave these factors significant weight in favour of cancelling the visa.

35. The Tribunal referred to the admitted breach of condition 8107.  It also expressed concern that the Applicant’s initial evidence was that he had been working in unskilled employment and was paid in cash for which he had not been paying income tax.  It found that this was not work in an occupation listed in the most recently approved nomination.  Despite the Applicant’s retraction of his initial evidence, the Tribunal was satisfied that he had been undertaking some unskilled employment in his relatives’ business and had been paid cash.  It also had concerns that he may be working for Hewlett Packard, given that he was wearing a Hewlett Packard jacket at the hearing.  It took into account his explanation that he borrowed the jacket from his brother, but expressed concerns about the reliability of that evidence.

36. The Tribunal accepted that there may be some hardship and difficulty for the family if they returned to Fiji.  However it noted that the Applicant’s parents and brother and his wife’s mother lived in Fiji and that he claimed they had been providing him with financial support.  It found that this indicated that he had supportive family in Fiji.  It noted that the Applicant was well-qualified and had been able to secure past employment with Qantas in Fiji.  On this basis, the Tribunal was satisfied the Applicant would be able to secure employment if he returned to Fiji.

37. The Tribunal accepted that, as the Applicant claimed the family had spent money on establishing itself in Australia.  However it was not satisfied there would be significant financial hardship if the visa was cancelled.  It acknowledged that the Applicant’s wife may be stressed by return to Fiji (as claimed), but was not satisfied any hardship caused by such return would be significant.  The Tribunal accepted that the Applicant’s son had commenced school and that they wanted him to finish his kindergarten year, but found no evidence to suggest that the child would be unable to attend school if the family returned to Fiji.

38. The Tribunal addressed the Applicant’s claim that the circumstances leading to the ground for cancellation concerned his marital problems and that he had resigned to deal with those problems.  It recorded that when asked why he had resigned, given the financial stress this might cause, the Applicant had claimed he had been supported financially by family members.  The Tribunal was of the view that this financial support was given because the Applicant was working for his relatives’ building business.  It also found that he was unable to explain why he could not return to skilled employment when relatives visited who could support his wife and children.  It was concerned that the Applicant had resigned to pursue alternative employment and not only because of the marital difficulties.  The Tribunal took into account the wife’s written claim that the Applicant needed to resign to deal with family problems, but was not satisfied the Applicant had adequately explained why he would not have taken more leave from his employment with his sponsor to deal with his marital problems, given that he had a supportive employer.

39. The Tribunal accepted that migration may cause relationship stress, but was not satisfied that the Applicant had demonstrated that his family circumstances were particularly compelling and was not satisfied that the circumstances leading to the ground for cancellation arising were outside his control (as he had claimed). 

40. The Tribunal noted that there had been no concerns raised by the Department as to any past or present conduct, but was concerned that the Applicant had not informed the Department that he had left his sponsored employment.  It took into account his view that he thought his employer would inform the Department, but also his acknowledgment that he was aware he was breaching condition 8107 and its concerns about the veracity and reliability of his claims regarding the reasons for his resignation. 

1. The Tribunal also had regard to the mandatory legal consequences of cancellation.  It observed that the Applicant held a bridging visa and that, as long as he departed Australia before it expired, he would not be detained.  It acknowledged that the Applicant would be affected by s.48 of the Act and would not be able to apply for another Subclass 457 visa onshore, but noted that he would have the option of applying offshore if sponsored again and the subject of an approved nomination.  It gave limited weight to the mandatory legal consequences, as they were the intended consequences of the legislation. 

2. The Tribunal took into account that if the Applicant’s visa was cancelled, the visas of his wife and children would be cancelled on the basis of being members of his family unit.  As this was the intended consequence of s.140 of the legislation it gave limited weight to this consequential cancellation.  It noted that there was no evidence to suggest any international obligations would be breached as a result of the cancellation.

3. The Tribunal concluded by reiterating that it had considered and weighed up all the relevant evidence and circumstances.  It found that the ground for cancellation arose because the Applicant chose to resign from his skilled employment, that he had not worked in skilled employment since his resignation in June 2016 and hence had not been fulfilling the purpose for which a Subclass 457 visa was granted (to temporarily fill a skilled shortage in Australia).  It took into account his evidence that his former employer was willing to re-employ him, but noted he was no longer the subject of an approved nomination and that there was no evidence that another nomination application had been made.  It observed that the fact the position had remained vacant since June 2016 suggested that it was no longer required.  It noted the Applicant’s evidence that he had been working in unskilled employment for cash in hand since ceasing his sponsored skilled employment.  It concluded that these factors weighed in favour of cancellation.

4. At the same time, the Tribunal accepted that the Applicant may experience some difficulty and hardship if the visa was cancelled and his family was required to return to Fiji.  It noted the purpose of a Subclass 457 temporary visa and observed that while the Applicant hoped to obtain permanent residence in Australia, there was no guarantee that a Subclass 457 visa holder would secure a permanent visa and that it was always the case that he and his family may need to return to Fiji.  The Tribunal reiterated its concerns regarding the reliability of the Applicant’s evidence in relation to his reasons for ceasing his employment in June 2016 and not returning to skilled employment.  It accepted that migration may cause relationship stress, but was not persuaded that the Applicant resigned “merely because of marital difficulties”.  It was of the view that given the support he claimed to have received from his employer, he could have sought further leave to deal with these difficulties.  It acknowledged that the Applicant may be affected by s.48 of the Act and that there would be consequential cancellations of his family members’ visas under s.140, but, again, stated that these were the intended consequences of the legislation.  The Tribunal accepted the Applicant had qualifications and past employment with Qantas in Fiji holding skilled positions.  It was satisfied that the Applicant would ultimately be able to secure skilled employment in Fiji. The Tribunal acknowledged that the Applicant wanted to work for his former sponsor. However it was also satisfied that if he became the subject of an approved nomination, he would be able to make an application offshore for a Subclass 457 visa should he wish to do so. 

5. Considering the circumstance as a whole, the Tribunal concluded that the visa should be cancelled. 

6. The court has power under r.16.05(2)(a) of the FCC Rules to set aside a judgment or order after it has been entered if the order was made in the absence of a party. The order dismissing the first reinstatement application was made in the absence of the Applicants.

7. In exercising its discretion in this context the court would normally consider the three factors referred to in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] and whether, on balance, these factors weighed for or against reinstatement. These factors are whether the Applicant has a reasonable excuse for his or her absence from the hearing in which the matter was dismissed, any prejudice to the other party if reinstatement was granted and whether the Applicant has a reasonably arguable prospect of success in the substantive application.

8. I also consider it appropriate to take into account all the circumstances and any other matters raised by the Applicant.  The discretion is a broad one (see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4]).

9. The explanation provided for the Applicant’s failure to appear on 2 May 2019 in the statement attached to his affidavit of 16 May 2019 was “I just missed my train from Glenfield to City via the Airport line during peak hour.” The Applicant claimed he reached the city by 9.50am and made “all attempts” to contact the registry.  In cross-examination he stated that he telephoned the registry for the first time “by” 9.50am and was advised that the matter had already been “soughted (sic)”.  I am prepared to allow for some leeway in relation to the exact time of such phone call.   The first reinstatement application was not dismissed until 9.55am on 2 May 2019.  However the simple statement “I just missed my train” and “I would like a further opportunity” is not an entirely satisfactory explanation for the non-appearance at the scheduled time.  There is no suggestion that anything untoward happened that morning to cause the Applicant to “just” miss his train in circumstances where he was aware that the matter was before the court at 9.30am.

10. I have borne in mind however that there may be circumstances in which, notwithstanding the provision of a less than entirely satisfactory explanation for non-appearance, other factors, notably the merits of grounds of review, may overall warrant reinstatement.  However this is not such a case. 

11. Before considering the merits of the grounds of review, I accept that, as the Minister submitted, other than to defend a case which the Minister sees as not having reasonable prospects of success and cost consequences, the First Respondent would suffer no prejudice if the case was reinstated.  This is accordingly a neutral factor. 

12. In considering whether the Applicants have a reasonably arguable prospect of success, I have borne in mind the remarks of Mortimer J in CAL15 at [5] – [6]. It is appropriate to consider in a reasonably impressionistic way whether an applicant has an arguable ground of review (that is, a ground that is not “fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument” (see CAL15 at [6])). I also bear in mind that it is ultimately a matter of weighing all of the factors that are relevant in the particular circumstances of the case.

13. However the difficulty that faces the Applicant is that even if his explanation for failing to appear at the directions hearing (or, indeed, at the scheduled callover for which he provided evidence of attendance at a dentist for treatment for a toothache) was to be regarded as entirely satisfactory, the substantive application does not identify any jurisdictional error.  Nor is there anything in the Applicant’s written or oral submissions that identifies any arguable jurisdictional error.

14. In the substantive application, there are two grounds of review.  I gave the Applicant the opportunity today to elaborate on these grounds.  The first ground is a contention that the Tribunal erred by “not giving weight to the argument that the role of the Applicant was still available at the employer’s business and that the Applicant was willing and able to continue his employment”.  

15. The Applicant reiterated this concern in his oral submissions today, indicating that he had resigned because of his marital difficulties and that his employer was willing to re-employ him. Insofar as the Applicant disputes the weight that a Tribunal chooses to afford the material before it, the selection and weight to be given to evidence is a matter for the Tribunal.  

16. In his written submissions the Applicant elaborated on the work he did in his nominated position and the willingness of his employer to re-employ him.

17. However the Tribunal had regard to the Applicant’s claims and evidence in this respect, including the letter from the former employer indicating that it was still willing to employ the Applicant.  It engaged with that material.  In particular, the fact that the sponsor was still willing to take the Applicant back was recognised by the Tribunal, including in its findings that if the Applicant again became the subject of an approved nomination, he would be able to make an application offshore for a Subclass 457 visa if he returned to Fiji.  There is no arguable jurisdictional error apparent in the Tribunal’s consideration of that this evidence, including its expression of concern as to whether the business genuinely needed a person in the Applicant’s former role, given its ongoing vacancy.  There is no evidence to suggest any arguable contention that the Tribunal’s findings as set out above were not reasonably open to it for the reasons which it gave.

18. There is nothing in the Tribunal decision to raise any arguable ground based on legal unreasonableness, irrationality or illogicality. 

19. No arguable jurisdictional error on the part of the Tribunal is apparent in the manner contended for in ground 1.  Insofar as the Applicant sought merits review in his submissions, merits review is not available in these proceedings. 

20. Ground 2 is that the Tribunal “did not give weight to compelling and compassionate grounds to the Applicant”. 

21. First, I note that this was a visa cancellation under s.116(1)(b) of the Act. There were, as the Tribunal recorded, no matters specified in the Act or Regulations that had to be considered in relation to the exercise of the discretion to cancel the visa.  In particular, there were no statutory provisions referring to compassionate and compelling circumstances that had to be taken into account by the Tribunal.

22. I have had regard not only to the Tribunal’s statement that it took into account all of the circumstances (including policy factors that had been referred to by the delegate), but also to its detailed consideration of the Applicant’s evidence and the matters that he raised, as set out above, (including his contentions in relation to compassionate and compelling circumstances and circumstances beyond his control). The Applicant has not pointed to any particular claim, evidence or circumstance which the Tribunal arguably failed to take into account or failed to engage with such as to raise any arguable jurisdictional error in the sense described in CAL15 or otherwise.

23. In particular, the Tribunal specifically addressed the Applicant’s family’s circumstances, but was not satisfied that he had demonstrated that they were particularly compelling or that the circumstances leading to the ground for cancellation arising were outside the Applicant’s control.  This conclusion reflected the Tribunal’s discussion of the Applicant’s evidence, its concern that he had resigned from employment to pursue alternative employment and not solely because of marriage difficulties and the fact that the Applicant had not taken more leave from his position to deal with his marriage difficulties. 

24. Insofar as this ground amounts to a dispute about the weight the Tribunal chose to place on particular items of evidence provided by the Applicant, there is nothing to suggest that it was not reasonably open to the Tribunal to find that the Applicant’s claims, in particular in relation to the family circumstances that gave rise to his resignation and the implications for the future, considered as part of all the circumstances, were not such as to satisfy it that the visa should not be cancelled. 

25. There is no evidence to suggest an arguable contention that there was no probative basis for the Tribunal’s findings or, as indicated above, that its reasons demonstrate a relevant irrationality or illogicality in the sense considered in the Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611. As the Minister submitted, the Tribunal’s findings were based on a number of factors; in part, adverse credibility findings, but also an exercise of discretion after balancing all of the circumstances before it.

26. Insofar as issue is intended to be taken with the Tribunal’s adverse credibility finding, there is nothing to suggest an arguable ground of jurisdictional error in that respect or that such finding was not reasonably open to the Tribunal on the material before it, being based, as it was, on an assessment of the deficiencies and contradictions in the Applicant’s evidence (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496). It was, moreover, not the sole basis for the decision. The Tribunal engaged in a detailed consideration of the Applicant’s claims about his circumstances and the implications of cancellation and the material before it. It appears that it addressed all of the issues raised by the Applicant in deciding whether it should exercise its discretion to cancel the visa. There is no evidence or suggestion to the contrary

27. Neither of the grounds in the application demonstrates any arguable ground of review. 

28. In oral submissions the Applicant raised an issue about whether the Tribunal had “properly” considered his circumstances The Tribunal took into account the fact that he acknowledged his non-compliance with condition 8107.  It also had regard to his claims about why he resigned, it weighed those claims and the reasons he gave as part of all the circumstances.  It considered the entirety of his case in relation to the exercise of its discretion. The Applicant’s general concerns do not identify any arguable jurisdictional error.  The issue the Applicant raised otherwise seeks impermissible merits review. 

29. In his written submissions, which appear to misunderstand the nature of judicial review, the Applicant acknowledged that he had breached condition 8107 and asked the Department to weigh other relevant conditions.  He addressed his personal circumstances and suggested that the Department should consider compelling and compassionate circumstances.  He elaborated on his family issues and concerns.  He stated that he believed he had compelling reasons to remain in Australia and asked the Department to weigh up the reasons for and against before cancelling the visa. 

30. The difficulty with this submission is that, as I endeavoured to explain to the Applicant, the court is not reconsidering whether or not his visa should be cancelled standing in the shoes of the Department or the Tribunal, but rather whether he has any arguable ground of review in terms of establishing an arguable jurisdictional error.  The written submission seeks impermissible merits review, as does the enclosed letter addressed to the court (which asks the court to look beyond the evidence and reasons to review the 457 work visa).  It is not for the court to determine in these proceedings whether the Applicant has compelling and compassionate circumstances.  The Applicant’s submissions do not raise, let alone establish, any arguable jurisdictional error on the part of the Tribunal. 

31. The review application was filed on behalf of all four Applicants.  However, both reinstatement applications were filed in the name of the First Applicant only.  The First Applicant told the court that he also appeared for his wife and for his children (for whom he is litigation guardian).  He indicated that the reinstatement applications were intended to extend to the Second to Fourth Applicants.  Accordingly, I have addressed whether they have an arguable ground of review.    

32. Although the First Applicant did not address the possibility that the Second to Fourth Applicants had arguable grounds of review, I have considered this issue as the Applicants are all self-represented.

33. However, the visas of the Second, Third and Fourth Applicants were cancelled under s.140(1) of the Act which provides:

    If a person’s visa is cancelled, a visa held by another person because of being a member of the family unit of the person is also cancelled.

34. The Tribunal found that as no decision was involved in the visa cancellation under s.140, it had no jurisdiction with respect to the Second to Fourth Applicants. 

35. No arguable case is apparent in relation to the Tribunal’s decision that it had no jurisdiction with respect to the Second to Fourth Applicants.

36. Given that no arguable ground of review has been raised and nor is any arguable ground of review apparent, it would be futile to reinstate the first reinstatement application as the substantive application has not been shown to raise any arguable ground of review.  Hence it would not advance the interests of the administration of justice (see CAL15 at [4]). In these circumstances, the appropriate order is an order that will bring these proceedings to an end.

37. The substantive application was dismissed under r.13.03C(1)(c). The first reinstatement application was also dismissed under r.13.03C(1)(c). If the second reinstatement application is now dismissed, this will bring these proceedings to an end.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date:         12 July 2019