BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 990
Federal Circuit and Family Court of Australia
(DIVISION 2)
BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990
File number: PEG 82 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 29 November 2022 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider that the applicant was unable to apply to study because her bridging visa contained a “no study condition” and no one suggested she seek a waiver of that condition – whether the Tribunal failed to consider that the applicant’s “health issues” were a “major reason” that she was unable to study – whether the Tribunal was biased – whether the conduct of the applicant’s agent amounted to fraud on the Tribunal – whether the Tribunal’s findings were “illogical”, “irrational” or legally “unreasonable” – remittal futile in any event – Ministerial Intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 37A, 116, 133, 134D, 359A, 378, 476
Migration Regulations 1994 (Cth), condition 8202
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179
Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256,
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Patel v Minister for Immigration & Anor [2014] FCCA 2000
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 124 Date of hearing: 15 September 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 82 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOJ22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
29 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
Background
The applicant is a citizen of India (Court Book (“CB”) 33). On 20 January 2014, she was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) (CB 3 & 33). She subsequently arrived in Australia on 30 January 2014 as the holder of that visa (CB 86), which was valid until 15 March 2017 (CB 33).
On 27 January 2017, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) under s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 3-7). The NOICC referenced a breach of condition 8202(2)(a) of the applicant’s visa, noting that that the applicant had “not been enrolled in a registered course of study since 26 April 2016” (CB 4).
On 4 February 2017, a representative from Aussizz Group (the applicant’s “first representative”) sent an email to the Department in response to the NOICC (CB 8). Attached to that email was a written statement from the applicant responding to the NOICC (dated 3 February 2017). Overseas Student Confirmation-of-Enrolment forms (“CoEs), a letter from Dr [Omitted] of [Omitted] Medical Group, medical documents and photographs of a car accident were attached to that statement (CB 9-17).
On 6 February 2017, the applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 33-38). The applicant was sent a letter (by email) notifying her of the visa cancellation. That letter attached a copy of the delegate’s decision record (CB 28-32). Relevantly, having reviewed information obtained from the Provider Registration and International Student Management System (PRISMS), the delegate determined that the applicant had not been enrolled in a registered course of study since 26 April 2016. On that basis, the delegate found that the applicant was in breach of condition 8202(2)(a) of her visa and cancelled that visa pursuant to s 116(1)(b) of the Act.
On 15 February 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 39-40). In that application, the applicant nominated a registered migration agent from Infant Jesus Migration Consultancy (the applicant’s “second representative”) to act as her representative in relation to the Tribunal review (CB 40).
On 27 March 2018, the applicant was invited (through her second representative) to attend a hearing before the Tribunal scheduled for 23 April 2018 (CB 45-48).
On 6 April 2018, the applicant’s second representative notified the Tribunal that he would no longer be representing the applicant in relation to the review and provided a completed “response to hearing invitation” form (CB 49-54).
On 23 April 2018, the applicant appeared at the hearing to give evidence and present arguments. The applicant was assisted at that hearing by an interpreter in the Punjabi and English languages (CB 57-58).
The applicant also provided a hand-written statement to the Tribunal in support of her application (CB 59-62).
On 6 July 2018, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 65-71).
On 12 August 2019, the then Federal Circuit Court of Australia (the “FCCA”) remitted the matter to the Tribunal (by consent) for reconsideration (CB 72-73).
On 10 December 2020, the Tribunal wrote to the applicant (pursuant to s 359A of the Act) inviting her to comment on or respond to information it had obtained from PRISMS and the Department’s “movement records” (CB 84-92). Relevantly, that invitation letter stated
(CB 87-88):
The Tribunal could find that there is a ground for cancellation because from the information before the Tribunal you did not comply with condition 8202(2)(a) as you were not enrolled in a registered course between 26 April 2016, when your last enrolments were cancelled, and the grant of the Bridging E visa to you with the no study condition on 9 August 2018, a period of 835 days or just over 2 years and 3 months.
Another consequence of the Tribunal relying on this information in relation to your review is that the Tribunal could find that the discretionary considerations that weigh in support of the cancellation of your visa outweigh the discretionary considerations that weigh against the cancellation of your visa. This could cause the Tribunal to find that it should exercise the discretion whether to cancel your Student visa or not be cancelling your visa. Specifically, your failure to study and lack of academic progress in Australia, particularly in the context it appears you were not enrolled in a registered course for over two years and three months when you could have studied, could lead the Tribunal to find that the following discretionary consideration weigh in support of the cancellation of your visa:
•The purpose of the visa holder’s travel to and stay in Australia – because you do not appear to have studied in accordance with the purpose of your visa for over two years and three months when you had the opportunity to do so;
•The extent of compliance with visa conditions: your breach of condition 8202(2)(a) continued for over two years and three months, goes to the very purpose of the visa and it does not appear you made any attempt to rectify that breach; and
•The circumstances in which the ground for cancellation arose: the explanations you provided to the delegate for your failure to be enrolled up until the time of the delegate’s decision on 6 February 2017 do not reasonably explain why you continued to not be enrolled in a registered course for a further 549 days or 18 months after the delegate’s decision until the time you were granted your first Bridging E visa.
You are invited to give comments on or respond to the above information in writing.
On 24 December 2020, the applicant responded to that invitation with a signed statement (also dated 24 December 2020 and spanning seven pages) which was sent to the Tribunal via email (CB 93-100).
On 12 January 2021, the Tribunal invited the applicant to attend a hearing before it scheduled for 29 January 2021 via Microsoft Teams (CB 101-105).
On 15 January 2021, the applicant’s first representative was again appointed to assist the applicant with her review application before the Tribunal (CB 120).
On 18 January 2021, the applicant’s first representative wrote to the Tribunal (via email) providing copies of a Form 956 form, an appointment of representative form and a completed response to hearing invitation form (CB 115-123).
On 29 January 2021, the applicant appeared at the Tribunal hearing to give evidence and present arguments. She was assisted at that hearing by the applicant’s first representative and an interpreter in the Punjabi and English languages (CB 130-132). The applicant was asked at the hearing to provide additional information to the Tribunal. She was granted until 12 February 2021 to do so (CB 135).
On 3 February 2021, the Tribunal asked the applicant (through her first representative) to provide further additional information to the Tribunal by 12 February 2021 (CB 133-136). Specifically, the Tribunal requested (CB 135):
In addition, you are also requested to provide the following information:
•A work reference from you current or most recent employer stating when you commenced work for them, when you finished (if applicable), your position, the main duties of your position, your hourly rate of pay or weekly pay you are receiving currently or when you last worked for the employer; and
•Any personal observations the referee wishes to provide about you.
Please provide this information, in writing, by 12 February 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
On 12 February 2021, the applicant’s first representative wrote to the Tribunal (via email) and provided additional documents, comprising medical documentation and related invoices from [Omitted], educational records regarding studies at Cambridge International College and associated receipts and a reference letter and a signed extract from a casual employee agreement from the applicant’s employer (CB 137-154).
On 16 April 2021, the Tribunal (again) affirmed the delegate’s decision to cancel the applicant’s visa (CB 158-174). The Tribunal also issued a direction under s 378(1) of the Act barring publication of any aspect of its decision that would reveal the nature and purpose of the applicant’s medical procedures (CB 175).
On 19 May 2021, the applicant sought judicial review of the Tribunal’s decision in this Court. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s decision
In determining whether the Tribunal has fallen into jurisdictional error it is useful to first outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 17 pages long and spans 105 paragraphs. The final page contains extracts of relevant legislative provisions.
The Court notes the Minister’s detailed summary of the Tribunal’s decision (in written submissions filed by the Minister on 6 April 2022 at [17]-[30]). Having reviewed the Tribunal’s decision in detail, the Court is satisfied that the summary provided is thorough and accurate. In the circumstances, the Court adopts the Minister’s summary as its own. With some additions and amendments, that summary provides as follows.
Did the ground for cancellation exist?
The Tribunal recorded that the applicant had accepted that she was not enrolled in a registered course of study between 26 April 2016 and 6 February 2017 (when the delegate cancelled the visa). On that basis, the Tribunal found that, as the applicant breached condition 8202(a), the ground for cancellation existed under s 116(1)(b) of the Act (at [26]-[28]).
Consideration of discretion
The Tribunal then considered whether the power to cancel the visa should be exercised. It recognised that the Act and Migration Regulations 1994 (Cth) did not specify matters that had to be considered but noted that it had had regard to the Department’s “Procedural Instruction” (at [29]).
In considering the purpose of the applicant’s travel to and stay in Australia, including whether she had a compelling need to remain here, the Tribunal found that the purpose of the applicant’s travel to and stay in Australia was to study and she had not been able to study under the Bridging E visas that she held since 9 August 2018 (at [31]). The Tribunal found that the visa was a temporary visa and that the applicant’s desire to stay in Australia to complete her study did not amount to a compelling need to remain here (at [34]). The Tribunal found that this weighed in favour of cancellation (at [35]).
In considering the extent of the applicant’s compliance with her visa conditions, the Tribunal recorded that it found her breach of condition 8202(2)(a) to be “significant”. It recorded that the sole purpose of the applicant’s visa was to travel to and stay in Australia to study, obtain qualifications and then return home. In this regard, the Tribunal noted that the applicant was not studying and, instead of returning to India, had remained in Australia, knowingly in breach of this condition (at [37]). The Tribunal gave this “considerable weight” in support of cancellation (at [39]).
In considering the “degree of hardship that cancellation may cause”, the Tribunal accepted that the applicant and her parents would suffer significant emotional hardship and could suffer social embarrassment (at [46]). The Tribunal also concluded that the applicant would lose her employment as a cook at a café in Perth – which would cause her some financial hardship. However, this, the Tribunal determined, was ameliorated by the visa being temporary (at [47]). The Tribunal also accepted that the applicant’s parents had invested a significant amount of money in her studies in Australia and, if she returned without the qualifications she hoped to achieve (to the extent that that would inhibit her from being able to obtain a higher paying job), it could be viewed as causing financial loss and even hardship to the applicant and her parents (at [48]). The tribunal determined that this weighed against cancellation (at [49]).
In considering the circumstances in which the ground for cancellation arose, the Tribunal set out that it had sent an invitation to the applicant containing information from her PRISMS and movement records and requesting current information from her, as well as her written response (at [50]-[52]). The Tribunal recorded that it had also discussed these circumstances with the applicant in detail at the hearing (at [53]). The Tribunal also recorded the applicant’s evidence at hearing that she had completed a Certificate III in Commercial Cookery but had not received a certificate because she owed course fees. Further, after the hearing, the applicant had paid her outstanding fees and had received her certificate. The Tribunal accepted that the applicant had completed this course (at [56]-[58]).
The Tribunal also accepted the applicant’s evidence about her “two pregnancy terminations and car crash” (at [59]-[61]). It recorded her claim that she was not able study after April 2016 because of these events (at [62]). It also recorded her claim that she did not know that she could apply for a Bridging E visa without the “no work” or “no study” conditions attached and that her lawyer at the time of her first Bridging E visa “did not tell her this”. The Tribunal found this to be “surprising” (at [65]-[66]).
The Tribunal recorded that the applicant’s second Bridging E visa had a work limitation (not a no work condition) attached to it but that she did not apply for it “to have no study conditions attached”. The Tribunal noted that the applicant had claimed that her current agent had assisted her with the application (at [68]-[69]). The Tribunal then recorded that it had asked the agent why the applicant applied for a Bridging E visa without a no work condition but not without a no study condition. The agent submitted that, at this stage (later 2019), the applicant was in financial difficulty, she had not worked for two years and her focus was on obtaining work rights (at [70]-[71]).
The Tribunal found the applicant’s initial academic progress in Australia in 2014 to be poor, with multiple unexplained course enrolments and cancellations. It did not accept the applicant’s evidence that these circumstances were outside of her control because she relied totally on her agent as claimed – recording that it was her obligation to understand and comply with her visa conditions (at [73]).
The Tribunal then stated:
75.The Tribunal has a great deal of compassion for the applicant given the obviously traumatic experiences she has suffered, particularly in 2016, with the termination of the two pregnancies. The Tribunal accepts the applicant’s evidence of the toll these events took on her physical and mental health and wellbeing, even though there is no medical evidence before the Tribunal to support the applicant’s evidence in this regard.
76.For clarity, the Tribunal accepts the applicant’s evidence that the surgical termination of her first pregnancy on 2 June 2016 and the non-surgical termination of her second pregnancy on 27 October 2016, and the single vehicle accident the applicant had in 2016, significantly and adversely affected the applicant’s physical and mental health and wellbeing, financial position and her ability to study throughout and beyond 2016.
77.However, it is difficult for the Tribunal to find on the evidence before it that the two termination of pregnancies and the impact of those and other events in the applicant’s life on her study in Australia, given her responses to those events, were extenuating circumstances beyond the applicant’s control.
78.The Tribunal understands that the applicant may have been feeling ashamed, confused and not sure what to do during these times but her sole purpose for being in Australia was to study. The applicant chose to cease studying in April 2019 but did not discuss this with her education provider or with her migration agent of the time. The Tribunal accepts the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends, but the Tribunal does not accept that not telling her education provider or her migration agent at the time were extenuating circumstance beyond the applicant’s control.
The Tribunal continued:
79.In the context of the applicant’s sole purpose for being in Australia being to study and the applicant having access at that time to advice about her study and visa obligations in Australia, her perceived inability to tell her education provider or her migration agent at the time was a decision and choice within her control. The choices she made not to tell her education provider and not to tell her migration agent deprived the applicant of potential advice about applying for a deferment of her studies on medical or compassionate grounds or applying for financial assistance in a timely manner that, if granted, may have avoided the cancellation of her visa. This finding is supported by the applicant’s evidence of being totally reliant upon her migration agent at the time for advice about her studies and visa obligations in Australia.
80.The applicant’s subsequent decision of not applying for a Bridging E visa without the no study condition attached did not contribute to the cancellation of her visa. While those circumstances may not reflect well on the applicant, even allowing for her representative’s candid reflection that she could have pushed the applicant more to seek reinstatement of her study rights, those circumstances occurred after the cancellation of the applicant’s visa and did not contribute to that cancellation. Therefore, the Tribunal makes no adverse findings or inferences against the applicant arising from those circumstances in relation to this consideration.
The Tribunal determined that the circumstances in which the ground for cancellation arose supported cancellation of the visa and it gave this considerable weight (at [81]).
There was no evidence before the Tribunal that the applicant had been untruthful or uncooperative in her dealings with the Department and the Tribunal found that this weighed against cancellation (at [82]-[83]).
In considering whether any mandatory legal consequences would arise from cancellation, the Tribunal considered the applicant’s and her agent’s submissions that, effectively, she had completed some study in Australia but had little to show for it by way of certificates (at [88]-[90]). The Tribunal determined that this weighed against cancellation (at [91]).
The Tribunal ultimately determined as follows:
101.The discretionary considerations that weigh in support of the cancellation of the applicant’s Student visa are:
•The applicant does not have a compelling need to remain in Australia;
•The applicant’s breach of condition 8202(2)(a) of her visa; and
•The circumstances in which the ground for cancellation of the visa arose.
102.The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:
•The applicant’s compliance with the conditions of her Bridging E visa;
•The hardship that cancellation may cause the applicant and her parents in India;
•The past and present behaviour of the applicant towards the Department; and
•The mandatory legal consequences that would flow for the applicant from the cancellation of her Student visa.
103.The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Student visa are:
•The fact that there would be no consequential cancellations under s.140 of the Act if the applicant’s Student visa is cancelled;
•Cancellation of the applicant’s Student visa would not cause Australia to breach any of its international obligations; and
•The applicant’s Student visa is a temporary rather than permanent visa.
Considering the circumstances as a whole, the Tribunal concluded that the considerations that weighed in support of cancellation outweighed those weighing against cancellation and affirmed the delegate’s decision to cancel the applicant’s visa (at [104]-[105]).
Application to this Court
The application for judicial review filed by the applicant on 19 May 2021 contains one particularised ground of review, as follows (without alteration):
1. Failure to take into account relevant information.
a) Independent decision was not made in this case on its own merits.
b)Application to study in a collage was not made because no “study” condition is there on my visa and nobody suggested a wever of the same.
c)AAT member did not suggest the same giving time to action and didn't consider my health issues as a major reason for not being able to study and thus make a biased decision.
d)Unfortunately my agent handling AAT did not ever suggest once about study wever and continuous study once i get better. she fumbled when asked by the member that financially I could not afford study . The member misinterpreted the communication by the agent as me not being interested in study and thus not asking the agent to apply my wever. This is a bias and misinterpreted error.
e)Circumstances prove swerve not considered and made a decision on assumption. Hence all these above reflect jurisdictional error.
In support of her application for judicial review, the applicant swore and filed an affidavit (also on 19 May 2021) annexing the Tribunal’s decision. That affidavit repeated the ground of review outlined above.
On 1 July 2021, procedural orders were made by Registrar van der Westhuizen in the FCCA giving the applicant an opportunity to file any amended application, affidavit evidence and written submissions. Unfortunately, no further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 9 May 2021, a Court Book numbering 175 pages (marked as Exhibit 1) and written submissions filed by the Minister on 6 April 2022.
First hearing
This matter initially came before the Court on 2 May 2022. The applicant appeared before this Court without legal representation. Ms Ellis appeared on behalf of the Minister. The Court confirmed with her that she had received a copy of the Court Book.
The Court asked the applicant if she had received a copy of the Minister’s written submissions. The applicant advised that was “not sure”. Ms Ellis provided material to the Court confirming that the Minister’s submissions had been served on the applicant (marked as Exhibit 2). The Court was satisfied that the applicant had been properly served with a copy of those submissions. Further, the Court explained to the applicant that, in the event that anything needed to be referenced or read out, that could be done in Court and Ms Ellis would summarise the Minister’s submissions for her in detail.
Having reviewed the factual background to this matter and the material contained in Exhibit 1 (the Court Book), the Court determined that it was appropriate to assign a pseudonym to the applicant and to issue a new court file number. The Court discussed this with the parties at the hearing and did so with the consent of the parties.
Noting that the applicant was unrepresented, the Court gave her an opportunity to explain orally what she thought the Tribunal “did wrong”. This is the standard practice in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to her that the only issue before the Court was whether the Tribunal fell into jurisdictional error. In that regard, it was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. However, for migration decisions akin to this matter, they most commonly include (but are not limited to) the following types of “mistakes”:
(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 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) 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].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that she seeks. 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.
Against this background, the applicant told the Court that she had explained her “whole situation to the Tribunal member from 2016 to 2018” and had given the member “all of the proof” that she had – however, the member had said that, although she did not have proof to justify her explanation he would give her a few more days to provide it (including her Certificate III in Hospitality which she did not have with her). The applicant further explained to the Court that she had provided the relevant certificate to the Tribunal. The applicant also explained that she was also asked by the Tribunal member why she had not applied for study rights in the relevant four year period and had explained to the member that she was “not in her right mind to make those decisions and had hired an agent to assist” her. She also explained to the Tribunal that her visa did “not allow her work or study rights”. The applicant stressed to the Tribunal that she “did not know any better” and that was why she hired an agent. The applicant explained to the Court that the Tribunal member “agreed with her” in that regard and that when her agent told the Tribunal member that because the applicant was not in her right mind she had not even mentioned applying for work or study rights, the Tribunal member told the agent that it was the agent’s responsibility as a migration agent to do so.
The applicant stressed to the Court that she “just needed to complete her Certificate IV and Diploma so she can return home” and that, if she goes back without them, she “does not have a life and will have nothing”.
After hearing from the applicant, the Court had a discussion with Ms Ellis about the wording in some parts of the Tribunal’s decision. Of particular concern to the Court were paragraphs [75] to [79]. Ultimately, the Court considered that further written submissions were needed in that regard and adjourned the hearing (after making orders for the parties to file further written submissions addressing the issue).
Second hearing
On 2 June 2022, the Minister filed further written submissions in this matter. These submissions are discussed below.
When the matter came before the Court again on 15 September 2022, the Court was advised that the applicant had provided the Minister with a statutory declaration made on 13 September 2022. The Court was provided with a copy of the document (marked as Exhibit 3) which was taken by the Court to be the applicant’s submissions in reply. The applicant’s “submissions” will also be considered below.
At the second hearing, when asked to explain what she thought the Tribunal had “done wrong”, the applicant told the Court that she “was going through so much” and had “no family or support here”. She explained that her agent had not told her that she needed to apply for a bridging visa and that she was unaware for a period of one year that she did not hold any visa. The applicant stressed that “everything was moving so quickly” in her life. She claimed that she had reached out to her education provider and told them that she was “going through some medical problems” and had asked them for help. The applicant stressed that she was unable to tell the education provider about her pregnancy terminations because there was “a whole community in that college who were Indian people”.
The applicant acknowledged that she understood that she had breached the visa conditions but that all she “wants is another chance to complete” her studies. The applicant explained that her mother had had “to fight with her father to send her here” and that she “can do so much with [her] life if [she is] given the chance”.
The Court also notes that, on 4 November 2022, the applicant sent an email to the Perth Registry of the Court annexing three CoEs (for a Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and a Diploma of Hospitality Management), all dated 27 October 2022. Those documents all post-date the Tribunal’s decision (being made on 16 April 2021). As such, they do not constitute material that was before the Tribunal. Nor do they address the issue of jurisdictional error on the part of the Tribunal.
An application for judicial review is, ordinarily, confined to the material that was before the Tribunal: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145. An exception might arise if proposed new documents point to jurisdictional error on the part of the Tribunal.
Here, the Court places no weight on the CoEs. They were not before the Tribunal and do not identify any jurisdictional error on the part of the Tribunal.
Consideration
Ground of review
Having reviewed the applicant’s judicial review application and the particularised ground contained therein, the Court considers that the applicant raises the following issues for consideration:
(1)whether the Tribunal failed to consider that the applicant was unable to apply to study because her bridging visa contained a “no study condition” and no one suggested she seek a waiver of that condition;
(2)whether the Tribunal failed to consider that the applicant’s “health issues” were “a major reason” that she was unable to study; and
(3)whether the Tribunal was biased;
These issues will be considered by the Court below.
Issue 1: whether the Tribunal failed to consider that the applicant was unable to apply to study because her bridging visa contained a “no study condition” and no one suggested she seek a waiver of that condition
Any suggestion that the Tribunal failed to consider that the applicant was unable to apply for any course of study (or enrol in the same) because of the conditions attached to her bridging visa fails on a factual level.
The Tribunal was aware of the applicant’s reasons for failing to enrol in or make application for any course of study whilst she was the holder of a “Bridging E visa”. Further, the Tribunal expressly considered this issue in its reasons and, while it considered that it reflected poorly, the Tribunal made no adverse findings in this regard. Specifically, the Tribunal stated:
80.The applicant’s subsequent decision of not applying for a Bridging E visa without the no study condition attached did not contribute to the cancellation of her visa. While those circumstances may not reflect well on the applicant, even allowing for her representative’s candid reflection that she could have pushed the applicant more to seek reinstatement of her study rights, those circumstances occurred after the cancellation of the applicant’s visa and did not contribute to that cancellation. Therefore, the Tribunal makes no adverse findings or inferences against the applicant arising from those circumstances in relation to this consideration.
Based on the information above, it cannot be said that the Tribunal failed to consider the applicant’s circumstances regarding her bridging visa and the associated conditions.
No error arises in relation to issue 1.
Issue 2: whether the Tribunal failed to consider that the applicant’s “health issues” were “a major reason” that she was unable to study
The applicant here suggests that the Tribunal did not consider whether her health issues were a major factor in her being unable to study.
The Court disagrees.
In the Tribunal’s written reasons, the applicant’s health (both mental and physical) is discussed at various points throughout the decision and in detail. In particular, the Court notes that the Tribunal:
(a)confirmed receipt of the applicant’s submissions (dated 24 December 2020) and included extracts where the applicant discussed her mental and physical health issues (at [52]);
(b)noted the applicant’s evidence that she had used funds received from her father to pay for the termination of her first pregnancy and acknowledged receipt of documents from the applicant confirming the surgical termination of a pregnancy, accepting that evidence (at [59]);
(c)confirmed that the applicant had provided receipts of payment for medical services regarding the non-surgical termination of a second pregnancy and accepted that evidence (at [60]);
(d)outlined the applicant’s evidence of a “single vehicle accident in 2016” and noted that, while the applicant was not physically injured, the accident “added to her stress and depression” (at [61]);
(e)considered the applicant’s evidence that she had “stabilised herself mentally” over two to three years, was “stronger physically” and was no longer “seeing any doctors or taking any medication” (at [72]); and
(f)noted that it had “a great deal of compassion for the applicant” and the circumstances she faced and accepted that those circumstances had taken a toll on her physical and mental health and wellbeing (at [75]-[76]).
It is clear that the Tribunal considered the applicant’s health issues in detail. Unfortunately for the applicant, having done so, the Tribunal determined as follows:
75.The Tribunal has a great deal of compassion for the applicant given the obviously traumatic experiences she has suffered, particularly in 2016, with the termination of the two pregnancies. The Tribunal accepts the applicant’s evidence of the toll these events took on her physical and mental health and wellbeing, even though there is no medical evidence before the Tribunal to support the applicant’s evidence in this regard.
76.For clarity, the Tribunal accepts the applicant’s evidence that the surgical termination of her first pregnancy on 2 June 2016 and the non-surgical termination of her second pregnancy on 27 October 2016, and the single vehicle accident the applicant had in 2016, significantly and adversely affected the applicant’s physical and mental health and wellbeing, financial position and her ability to study throughout and beyond 2016.
77.However, it is difficult for the Tribunal to find on the evidence before it that the two termination of pregnancies and the impact of those and other events in the applicant’s life on her study in Australia, given her responses to those events, were extenuating circumstances beyond the applicant’s control.
78.The Tribunal understands that the applicant may have been feeling ashamed, confused and not sure what to do during these times but her sole purpose for being in Australia was to study. The applicant chose to cease studying in April 2019 but did not discuss this with her education provider or with her migration agent of the time. The Tribunal accepts the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends, but the Tribunal does not accept that not telling her education provider or her migration agent at the time were extenuating circumstance beyond the applicant’s control.
The Court is satisfied that the Tribunal considered the impact that the applicant’s health issues had on her circumstances but ultimately determined that the applicant “chose to cease studying” and did not accept that the applicant’s inability to discuss her circumstances with her education provider or migration agent amounted to “extenuating circumstances beyond the applicant’s control”.
No error arises in relation to issue 2.
The issue of whether the Tribunal’s findings were illogical or irrational in this regard will be considered by the Court below.
Issue 3: whether the Tribunal was biased
To the extent that the applicant is alleging bias on the part of the Tribunal, the Court disagrees.
An allegation of bias should not to be made lightly. Broadly, such an allegation risks bringing into question the integrity of the person charged with failing to make an objective and impartial decision. It follows then that an allegation of bias is one that must be distinctly made and clearly proven.
Relevantly, to prove bias, an applicant must establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to indicate that the Tribunal in this matter was not open to persuasion.
Here:
(a)the Tribunal invited the applicant to attend a hearing (CB 102-105);
(b)the applicant attended that hearing and provided oral evidence at the hearing (with the assistance of a registered migration agent and an interpreter) (CB 130-132) which the Tribunal regarded comprehensively;
(c)the Tribunal allowed the applicant additional time, after the hearing, to provide further information to it (CB 134-136);
(d)the applicant provided additional information to the Tribunal (through her representative) (CB 137-154) and
(e)
the Tribunal had regard to that information (at [20]-[21]) in its written reasons
(CB 160-161).
The Tribunal considered the applicant’s circumstances as a whole and weighed those considerations. The Tribunal found that there were some discretionary considerations in support of cancellation, some which weighed against cancellation and some considerations which neither weighed in support of or against cancellation (at [100]-[103]).
Ultimately, the Tribunal determined that the circumstances which weighed in support of the cancellation outweighed those against cancellation (at [104]).
The applicant may disagree with the Tribunal’s assessment and the determination ultimately made, however, the mere fact that she disagrees, or the fact that the Tribunal found against her, does not mean that the Tribunal lacked objectivity or had a “closed mind”.
No issue of bias arises here.
Applicant’s submissions (statutory declaration)
The Court considers the applicant’s submissions to raise the following issues:
(4)whether the conduct of the applicant’s agent amounted to fraud on the Tribunal; and
(5)whether the Tribunal failed to consider that there were no study rights attached to the applicant’s bridging visa.
Issue five was discussed above in relation to the matters raised by the applicant’s judicial review application. The Court repeats its finding in that regard in relation to issue 5.
Issue 4: whether the conduct of the applicant’s agent amounted to fraud on the Tribunal
The main concern raised by the applicant in her submissions relates to the conduct of her registered migration agent (Mr “S”).
Specifically, the applicant claims that Mr S:
(a)was asked to represent her when she received the NOICC in January 2017 but failed to get her a CoE and/or a “leave of absence on health grounds” and her visa was subsequently cancelled;
(b)had his migration licence suspended due to the “fraud he had committed with his clients”;
(c)did not apply for a bridging visa for the applicant when her student visa was cancelled; and
(d)arranged for 13 CoE’s to issue in her name and “got them cancelled” without asking her about any other course or college or giving her copies of those CoE’s.
As outlined by Ms Ellis in oral submissions (at the second hearing of this matter on 15 September 2022), there is no evidence in the Court Book to suggest that the applicant engaged anyone by the name of Mr S to act as her representative. That said, the applicant did have several agents assisting her through the course of her dealings with the Department and the Tribunal in relation to the visa.
To the extent that the applicant raises concerns about the conduct of Mr S (or any appointed migration agent responsible for the conduct described above), the Court is sympathetic with the concerns raised by all applicants in similar situations who express annoyance or frustration with what they perceive to be poor advice. Unfortunately, however, the concerns raised here do not assist the applicant in relation to the issue of jurisdictional error. There is nothing that suggests to the Court that the agent’s conduct amounts to a “fraud on the Tribunal”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.
In order for conduct to constitute a “fraud on the Tribunal”, it must be proved that the fraudulent conduct of the migration agent (or the third party in question) disabled the Tribunal from conducting a review in accordance with its statutory obligations under the Act. That is, the fraud must have directly impacted on the Tribunal’s decision making process or otherwise impacted the outcome of the review.
To the extent that the applicant claims that her agent, for example, failed to apply for a bridging visa when her student visa was cancelled or did not obtain CoE’s on her behalf, in the Court’s view, the agent’s inaction in this regard might amount to negligence or incompetence. It does not amount to fraud: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The Court does, however, refer the applicant to the Office of the Migration Agent Registration Authority (the “OMARA”), noting that the OMARA is legislatively empowered to investigate and address migration services in Australia.
No jurisdictional error arises in this regard.
Otherwise
As outlined above, at the first hearing of this matter, the Court requested that the parties provide the Court with further written submissions addressing some of the language used by the Tribunal in its written reasons and whether some of the Tribunal’s findings could logically or rationally have been made.
The Court had particular concerns about the Tribunal’s comments and findings at [75] to [79] in the Tribunal’s reasons. As outlined above, the Tribunal’s reasons in that regard provide:
75.The Tribunal has a great deal of compassion for the applicant given the obviously traumatic experiences she has suffered, particularly in 2016, with the termination of the two pregnancies. The Tribunal accepts the applicant’s evidence of the toll these events took on her physical and mental health and wellbeing, even though there is no medical evidence before the Tribunal to support the applicant’s evidence in this regard.
76.For clarity, the Tribunal accepts the applicant’s evidence that the surgical termination of her first pregnancy on 2 June 2016 and the non-surgical termination of her second pregnancy on 27 October 2016, and the single vehicle accident the applicant had in 2016, significantly and adversely affected the applicant’s physical and mental health and wellbeing, financial position and her ability to study throughout and beyond 2016.
77.However, it is difficult for the Tribunal to find on the evidence before it that the two termination of pregnancies and the impact of those and other events in the applicant’s life on her study in Australia, given her responses to those events, were extenuating circumstances beyond the applicant’s control.
78.The Tribunal understands that the applicant may have been feeling ashamed, confused and not sure what to do during these times but her sole purpose for being in Australia was to study. The applicant chose to cease studying in April 2019 but did not discuss this with her education provider or with her migration agent of the time. The Tribunal accepts the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends, but the Tribunal does not accept that not telling her education provider or her migration agent at the time were extenuating circumstance beyond the applicant’s control.
79.In the context of the applicant’s sole purpose for being in Australia being to study and the applicant having access at that time to advice about her study and visa obligations in Australia, her perceived inability to tell her education provider or her migration agent at the time was a decision and choice within her control. The choices she made not to tell her education provider and not to tell her migration agent deprived the applicant of potential advice about applying for a deferment of her studies on medical or compassionate grounds or applying for financial assistance in a timely manner that, if granted, may have avoided the cancellation of her visa. This finding is supported by the applicant’s evidence of being totally reliant upon her migration agent at the time for advice about her studies and visa obligations in Australia.
The Court wrote to the parties on 2 May 2022 outlining its concerns in relation to the above, as follows:
His Honour again refers the parties to the Tribunal’s comments and findings at [75] to [79]. His Honour queries whether, given the Tribunal’s findings that the applicant’s personal experiences had been “obviously traumatic”, were “beyond her control” and had “cultural implications” (resulting in “shame”), can the Tribunal’s finding (at [79]) that the applicant’s decision not to seek assistance from her migration agent and/or educational provider was “a choice” and “within her control” be seen to flow logically and/or rationally from the Tribunal’s findings about the traumatic effect of the applicant’s prior personal experiences.
The Minister filed further written submissions on 2 June 2022 addressing whether the above paragraphs raise concerns of illogicality and rationality.
As outlined by the High Court in SZMDS, the threshold for illogicality and irrationality is as follows:
130.In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131.What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Court also notes the comments made by the Full Court of the Federal Court in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 as follows.
85.Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
86. Moreover, at [135] their Honours continued:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.
87.Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).
With this jurisprudence in mind, the Minister submitted (in written submissions filed in this Court on 2 June 2022) as follows in relation to the Tribunal’s findings:
4.In this matter, the Tribunal from [75] to [79] recorded that it had a “great deal of compassion for the applicant given the obviously traumatic experiences” involving the termination of her two pregnancies and car accident in 2016. It accepted that these events “significantly and adversely affected the applicant’s physical and mental health and wellbeing, financial position and her ability to study throughout and beyond 2016” and it accepted “the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends”. It further recorded that it understood that “the applicant may have been feeling ashamed, confused and not sure what to do during these times.”
5.However, notwithstanding this, the Tribunal considered that it was the applicant’s choice to not discuss her ceasing study in April 2016 with her education provider or migration agent, and that was not an extenuating circumstance beyond her control. In arriving at this finding, the Tribunal emphasised that the applicant’s “sole purpose for being in Australia was to study” and it placed weight on the applicant’s own evidence that she was totally reliant upon her migration agent at the time for advice about her studies and visa obligations in Australia. The Tribunal recorded that the choice the applicant made not to tell her education provider or migration agent deprived her of potential advice about applying for a deferment of her studies on medical or compassionate grounds or applying for financial assistance in a timely manner that, if granted, may have avoided the cancellation of her visa.
6.The Tribunal’s findings in this regard cannot be said to be illogical in the sense described in the case law above. Whilst the Tribunal accepted “the cultural implications of the applicant’s situation and her evidence of not feeling as though she could tell family or friends”, it was open to it to find that she could have reached out to her education provider and migration agent, who she relied on, to discuss her circumstances and her cessation of study which may have avoided the cancellation. This was particularly so in the context of, as the Tribunal recorded, her “sole purpose for being in Australia being to study”, which was reflected in condition 8202(2)(a) that applied to her visa.
7.The Tribunal did not find that the applicant was required to explain to her education provider or agent her “obviously traumatic experiences” in great detail. However, it considered that it was her choice not to reach out to them about her circumstances and cessation of study, and that this was not an extenuating circumstance beyond her control.
The Court agrees the Minister in this regard. While this Court may well have approached the applicant’s evidence differently and come to a vastly different conclusion to the Tribunal, that is not the test relevant upon review.
As outlined above, the Tribunal considered the applicant’s “health issues” throughout its written reasons and made findings based on those considerations. The Tribunal then provided comments and made arguably forensic findings about the applicant’s particular (and most unfortunate) circumstances at [75] to [79] of its reasons.
The Tribunal acknowledged that the applicant had been through “obviously traumatic experiences” and noted, in particular, the termination of two pregnancies in 2016. The Tribunal accepted the applicant’s evidence about how those events had impacted on her mental and physical health and wellbeing and “her ability to study” in 2016 (at [75]-[76]).
The Tribunal also understood that the applicant may have felt “ashamed, confused and … [un]sure” about what she needed to do at that time and accepted that there were “cultural implications” for the applicant, given her situation and that the applicant did not “[feel] as though she could tell family or friends” (at [78]).
Ultimately, however, the Tribunal found that the applicant “chose to cease studying” but failed to “discuss this with her education provider or with her migration agent of the time” (at [78]). Further, the Tribunal considered that the applicant’s “inability to tell her education provider or her migration agent at the time was a decision and a choice within her control” (at [79]).
The language and word choice used by the Tribunal is, contextually, unfortunate and, arguably, detached from the realities of a socially and culturally disempowered applicant. However, it cannot be said that the Tribunal’s findings were not open to it.
The question that this Court must answer is whether, on the evidence, the Tribunal’s conclusions are “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”.
The conclusions reached in this matter, while arguably conclusions about which “reasonable minds might differ”, are not legally “unreasonable”. Further, the fact that one conclusion has been preferred by the Tribunal to another possible conclusion does not amount to an illogical or irrational finding: SZMDS at [131].
No jurisdictional error arises in this regard.
Futility
In written submissions filed by the Minister on 6 April 2022, the Minister submitted that, even if the applicant were able to demonstrate any jurisdictional error on the part of the Tribunal, the Court should refuse to grant relief. In the Minister’s submission, because the applicant’s visa was due to expire on 15 March 2017, it would be futile to remit the matter to the Tribunal.
The Court agrees.
In this regard, the Court references its decision in the matter of Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868. That analysis applies equally in this matter and is repeated below.
Sections 37A, 133 and 134D of the Act allow the Minister to extend the period in which a visa is in effect. The Court notes, however, that none of these provisions relate to the particular circumstances of this case (that is, they do not relate to a Safe Haven Enterprise visa, the applicant is located in Australia and the cancellation was not an “emergency cancellation”).
Accordingly, there appears to be no statutory power to extend the visa if the matter is remitted. Put simply, if the Court remits the matter and the Tribunal finds in the applicant’s favour, it would be of no utility as the applicant’s visa would have ceased and would no longer be in effect.
It is noted that in Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256, Justice French (as His Honour then was) considered an application for judicial review of a decision to refuse a bridging visa. The refusal of the bridging visa was made by a delegated officer on 4 June 1999. The Tribunal affirmed the decision on 24 June 1999. The applicant sought judicial review of the decision
On judicial review, the applicant was claiming that a decision on his application was not made within the required two-day limit and he was therefore deemed by the Act to have been granted the bridging visa (and the refusal was invalid). The Minister’s argument was that the visa was refused within the required time. Relevantly, the visa that the applicant was stating that he was deemed to have been granted was in effect for, at most, 14 days from the date of the grant of the visa.
His Honour made findings that the visa was refused on 4 June 1999 and that this was within the two day time period. Therefore, the applicant was not deemed to have been granted the visa. His Honour continued:
21.If my conclusion be wrong and a Bridging Visa E was granted, then the visa has long expired and there is no useful purpose to be achieved by making any order in relation to the decision of the Tribunal or the purported decision to refuse the grant of a bridging visa made by Mr Cain. That is only a hypothetical question, of course, because I have found on the balance of probability that, in fact, he made the decision within the two days. Even if he had not, I would consider that the relief which is sought would at this stage be futile…
The visa here is also “long expired”. It expired in March 2017 (over five and a half years ago).
In Patel v Minister for Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179, this Court found that in circumstances where the student visas under review had expired, it would be an exercise in futility to grant relief as any relief would have no practical consequence.
That reasoning applies here. It would, in the circumstances of this matter, be futile to remit the matter to the Tribunal.
Ministerial Intervention
The circumstances of this case are most unfortunate. The applicant suffered traumatic experiences – particularly in 2016, when she underwent the termination of two pregnancies. She was also involved in a car accident resulting in financial difficulties which (the applicant explained and the Tribunal accepted) further added to her anxiety and depression. These events understandably had an adverse effect on the applicant’s physical and mental health.
When the matter came before the Court, the applicant was clearly distressed and emotional about her situation. She pleaded with the Court for a favourable outcome. The Court’s jurisdiction is, however, limited and, without evidence of jurisdictional error on the part of the Tribunal, there is nothing the Court can do to assist the applicant.
The Court does, however, consider that the circumstances in this matter are compelling. While the Court has no power or ability to compel or indeed ask the Minister to exercise one of his discretionary powers, the Court notes that the Minister does have the option of doing so.
Conclusion
The applicant’s application for judicial review and written submissions (Exhibit 3) have failed to identify any jurisdictional error. The Court is otherwise unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 29 November 2022
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