Brar v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1433
•23 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brar v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1433
File number: PEG 2 of 2024 Judgment of: JUDGE KENDALL Date of judgment: 23 December 2024 Catchwords: MIGRATION – cancellation of a Student visa – decision of the then Administrative Appeals Tribunal – whether the Tribunal failed to consider evidence or claims – whether the Tribunal’s decision was legally unreasonable – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal’s decision was affected by bias – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), Items 10 and 25 in Schedule 16
Migration Act 1958 (Cth), ss 37A, 116, 133, 134D, 140, 189, 357A, 359AA, 360, 476 & 499 and Division 5 of Part 5
Migration Regulations 1994 (Cth), Conditon 8202 in Schedule 8
Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14
Bala v Minister for Immigration & Border Protection [2019] FCA 600
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Handa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 66
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243
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 SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
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
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
SZVUP v Minister For Immigration & Border Protection & Anor [2015] FCCA 1287
Division: Division 2 General Federal Law Number of paragraphs: 96 Date of hearing: 19 July 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms E Tattersall Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 2 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIJAYPAL SINGH BRAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
23 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted as the second respondent in the proceeding.
3.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
Recent amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Administrative Appeals Tribunal (the “Tribunal”). That decision is dated 2 December 2023 and thus predates those amendments. Unless stated otherwise, any reference to the Act in this judgment is a reference to the Act in force as at the date of the Tribunal’s decision (or as at the date of any relevant matter referenced in this judgment).
The Court notes that the Tribunal is currently listed as the second respondent in this matter. Item 10 in Schedule 16 of the Consequential Act provides that the ART is (after the transition time) substituted for the Tribunal as a party to any proceeding pending in any Court or Tribunal immediately before the transition time. Item 25 of the Consequential Act relates to any proceeding in a Court that is not finalised before the transition time and that relates to a decision made, or other thing done, by the Tribunal. After the transition time, proceedings will continue in accordance with the new law. By continuing with a proceeding, anything the Court could have done in relation to the Tribunal before the transition time can now be done in relation to the ART.
In the circumstances, this Court will make an order substituting the ART as the second respondent in this proceeding and will proceed to review the decision of the Tribunal.
The applicant’s migration history
The applicant in this matter a citizen of India (Court Book (“CB”) 55 & 69). He first arrived in Australia in December 2014 with an intention to study Information Technology (CB 107 & 160).
On 29 May 2019, the applicant was granted the Student (Class TU) (Subclass 500) visa (the “visa”) the subject of the application now before this Court. That visa was subject to Condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”) (CB 158).
On 1 September 2022, the Department of Home Affairs (the “Department”) wrote to the applicant by email and asked for his current contact information (CB 23-24).
On 5 September 2022, the applicant provided those details to the Department by email (CB 26).
On 12 September 2022, the Department sent the applicant a “Notice of Intention to Consider Cancellation” letter (“NOICC”) under s 116 of the Act (via email) (CB 27-31). The NOICC referenced a breach of condition 8202(2)(a) in Schedule 8 of the Regulations, noting that the applicant had “not been enrolled in a registered course [of study] since 12 August 2020” (CB 29).
On 16 September 2022, the applicant contacted the Department (by email) and sought an extension of time of “about a week” within which to respond to the NOICC (CB 32).
Later that same day (also on 16 September 2022), the Department granted the applicant an extension of time of five working days (until 28 September 2022) to provide a response to the NOICC (CB 33).
On 27 September 2022, the applicant provided a statement and supporting documents to the Department (by email) in response to the NOICC (CB 34-48).
On 27 October 2022, the applicant’s visa was cancelled by a delegate of the first respondent (the “Minister”) (CB 55-60). The applicant was sent a letter (by email) notifying him of the visa cancellation (CB 51-54).
On 1 November 2022, the applicant sought review of the delegate’s decision by the Tribunal (CB 61-68). In the application for review (lodged with the Tribunal), the applicant appointed a registered migration agent to act on his behalf (the “representative”) (CB 65).
On 27 September 2023, the Tribunal invited the applicant (via email and through his representative) to attend a hearing before the Tribunal on 20 November 2023 (CB 82-96).
On 3 October 2023, the applicant’s representative notified the Tribunal (via email) that the applicant and his representative would attend the hearing on 20 November 2023 and provided a completed hearing response form (CB 99-103).
On 14 November 2023, the applicant’s representative provided written submissions and supporting documentation to the Tribunal (CB 104-145).
On 20 November 2023, the applicant attended the Tribunal hearing to give evidence and present arguments (CB 147-150). He was assisted at that hearing by his representative (CB 147).
On 2 December 2023, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 157-168).
On 30 December 2023, the applicant applied to this Court for judicial review of the Tribunal’s decision (CB 1-7). The applicant filed an affidavit in support of that judicial review application. The affidavit was affirmed by the applicant on 29 December 2023 and annexed a copy of the Tribunal’s decision. It also (arguably) expanded on the applicant’s “grounds of review” included in the application for judicial review filed in this Court (CB 8-13). These issues will be discussed further by the Court below.
THE TRIBUNAL’S DECISION
The application for judicial review 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. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision is 12 pages long and spans 56 paragraphs. The final page contains extracts of relevant legislative provisions.
The Tribunal began by noting that the applicant’s visa was cancelled by a delegate of the Minister on 27 October 2022 on the basis that the applicant had failed to comply with a condition of his visa. The Tribunal explained that the applicant appeared at a hearing before it on 20 November 2023 to give evidence and present arguments and noted that the applicant was represented in relation to the Tribunal review (at [1]-[5]).
The Tribunal identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations. The Tribunal noted that the applicant had been granted the visa the subject on the review on 29 May 2019 with Condition 8202 in Schedule 8 of the Regulations attached. The Tribunal set out the requirements of that Condition and noted, in particular, that it did not “allow the visa holder to cease to be enrolled in a course” of study. The Tribunal also noted that the applicant’s visa had been cancelled because the applicant “was not enrolled in a full-time registered course” (at [7]-[11]).
The Tribunal explained that it had before it information from the applicant’s Provider Registration and International Students Management System (“PRISMS”) records which indicated that the applicant was not enrolled in a registered course from 12 August 2020. On that basis, Tribunal found that the applicant had breached Condition 8202(2)(a) in Schedule 8 of the Regulations and, as such, was satisfied that the ground for cancellation in s 116(1)(b) of the Act existed. Noting that the ground did not require mandatory cancellation of the applicant’s visa under s 116(3) of the Act, the Tribunal then acknowledged that it was required to consider whether to exercise its discretion to cancel the applicant’s visa (at [12]-[15]).
The Tribunal acknowledged that there were no matters specified in the Act or the Regulations which were required to be considered in exercising that discretion but noted that it had had regard to the matters raised by the applicant and the matters outlined in the Department’s Procedures Advice Manual (“PAM3”) (at [16]).
The Tribunal noted that, on 12 September 2022, the Department had issued the applicant with a NOICC because he had ceased to be enrolled in a course of study from 12 August 2020 and thus had not complied with a condition of his visa. The Tribunal detailed the information provided by the applicant in his response to the NOICC and explained that he had also provided a Letter of Offer and Acceptance relating to a Diploma of Business course and a debt recovery notice at that time (at [17]-[19]).
The Tribunal also detailed the evidence provided by the applicant in a written statement given to the Tribunal prior to the Tribunal hearing and outlined the additional documents provided to it prior to the hearing (which included documents relating to the applicant’s bridging visa and educational records relating to a Certificate IV and a Diploma in Business and a Certificate IV in Commercial Cookery) (at [20]-[21]).
The Tribunal then set out (in detail) the information put to the applicant at the hearing (pursuant to s 359AA of the Act) regarding his PRISMS records and evidence given by the applicant at that hearing (in response to questions posed by the Tribunal). The Tribunal also outlined the submissions made by the applicant’s representative at that hearing (at [22]-[36]).
The Tribunal then considered the purpose of the applicant’s travel to and stay in Australia and whether there was a compelling need for him to remain in Australia. The Tribunal noted that the applicant’s visa was for study purposes and that he had not been enrolled in a course of study for over two years (from 12 August 2020 until he received the NOICC). The Tribunal found that the applicant’s breach of his visa condition was significant and recorded that it had asked the applicant if there was any compelling reason for him to remain in Australia. The Tribunal did not consider the applicant’s response (being that he wanted to complete his Commercial Cookery or Nursing studies) to amount to “a compelling need”. The Tribunal found that the applicant’s lack of engagement with study and the lack of compelling reasons to remain in Australia weighed in favour of cancelling his visa (at [38]-[40]).
The Tribunal considered the extent of the applicant’s compliance with his visa conditions and noted that the applicant had failed to maintain enrolment (as required by Condition 8202 in Schedule 8 of the Regulations). The Tribunal acknowledged that there was no evidence before it that the applicant had not complied with other conditions attached to his visa but considered that the requirement to maintain enrolment was a fundamental visa condition. Further, the Tribunal found that the applicant’s non-compliance (which extended for more than two years) weighed in favour of visa cancellation (at [41]-[42]).
The Tribunal accepted that cancelling the applicant’s visa would be disappointing to him (noting, in particular, that his family were not aware that he had stopped studying in 2020 or that he had not completed his studies). The Tribunal also accepted that cancellation of his visa may cause emotional hardship to the applicant and gave that some weight against cancellation (at [43]).
The Tribunal considered the circumstances in which the cancellation arose and whether those circumstances were beyond the applicant’s control. The Tribunal noted the applicant’s evidence that his father’s death had impacted his ability to study and accepted that the death of a parent was “a significant stressor”. However, the Tribunal noted that the applicant had not been enrolled for nearly two years following his father’s death and did not seek to defer his studies, did not contact the Department and did not seek any medical assistance or counselling (in relation to any claimed emotional difficulties). The Tribunal also had regard to the applicant’s evidence that he had worked for three days per week during this period. The Tribunal determined that the applicant had not taken his visa conditions seriously. The Tribunal also detailed the applicant’s evidence that “he knew he was in breach of the [visa] conditions and believed his education provider informed the Department”. The Tribunal found that the breach of the applicant’s visa condition did not occur in circumstances beyond the applicant’s control, noting that the applicant had not attempted to enrol in any course in 2021 or 2022 (until he was contacted by the Department) and there was no evidence to substantiate the applicant’s claim to have suffered from mental or emotional problems. The Tribunal found there were no extenuating or compassionate circumstances and that weighed in favour of visa cancellation (at [44]-[47]).
The Tribunal noted that there was no evidence that the applicant had behaved inappropriately with the Department, there was no one else attached to the applicant’s visa (and as such, there would be no consequential cancellations under s 140 of the Act) and there was nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation. The Tribunal, accordingly, gave no weight to those factors (at [49]-[50] & [52]).
The Tribunal was mindful that cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 of the Act and that the applicant might face difficulties in being granted further visas in Australia. The Tribunal gave this factor some weight against cancellation (at [51]).
Having considered the totality of the applicant’s circumstances, the Tribunal concluded that the applicant’s visa should be cancelled and affirmed the delegate’s decision cancelling the applicant’s visa (at [54]-[56]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 30 December 2023 contains four particularised grounds of review, as follows (without alteration):
1.The Tribunal’s decision was unreasonable in the legal sense, or that the Tribunal engaged in irrational or illogical fact-finding mission which led the Tribunal to make jurisdictional errors.
a.Neglecting the Applicant’s claims that non enrolment in course was beyond his control due to external factors.
b.Neglecting the Applicant’s claims that he wanted to remain in Australia just to finish his current courses.
c.The Applicant does not wish to extend his stay in Australia to remain here on a temporary basis, if he had wanted to do that his visa application would not be of a student, but he would have made another application.
2.The Tribunal failed to give consideration to and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information when assessing whether the Applicant has breached visa condition 8202(2)(a).
a.The Tribunal ignored the evidence that the Applicant faced financial difficulties due to change in family’s financial circumstances and father’s health.
b.The Applicant claimed that he was disadvantaged due to global pandemic and death of his father but it was ignored by the Tribunal.
3.The Tribunal failed to consider and ignored critical evidence, or otherwise failed to rely exclusively on relevant facts and information.
a.The Applicant intends to return to the home country upon completion of the courses in Australia.
b.The Tribunal failed to provide me to the opportunity to address the value of the qualification to my future.
c.The Member failed to follow the Directions and consider the benefit of the course to the Applicant’s future.
4.The Tribunal misapplied itself by made highly specificative inferences and made no logical connection in finding that the Applicant have no significant incentive to return to the home country:
a.The Tribunal is obliged to consider the evidence that he does have multiple significant incentives to return back to home country.
b. The Tribunals finding is not supported by the facts.
The applicant also filed an affidavit in support of that judicial review application (affirmed by the applicant on 29 December 2023 and filed in this Court on 30 December 2023). As well as including some background information, the applicant’s affidavit largely repeats the grounds of review outlined in his judicial review application (as set out above).
On 8 February 2024, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file an amended application, any written submissions and any additional evidence. No additional materials were provided by or on behalf of the applicant.
The materials before this Court include the application for judicial review and supporting affidavit filed by the applicant on 30 December 2023 (with the applicant’s affidavit being taken as read and in evidence at the hearing of this matter), a Court Book numbering 168 pages (marked as Exhibit 1 at the hearing of this matter) and written submissions filed on behalf of the Minister on 5 July 2024.
The applicant appeared before this Court on 19 July 2024 without legal representation. The applicant initially told the Court that he did not need the assistance of an interpreter but was ultimately assisted that that hearing by a Punjabi interpreter (as and when assistance was needed). Ms Elle Tattersall (“Ms Tattersall”) from Minter Ellison Lawyers appeared at the hearing on behalf of the Minister (by video link).
Noting that the applicant was unrepresented, the Court gave him an opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, it was explained that for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“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 that this Court cannot review the merits of the Tribunal’s decision or reinstate the applicant’s cancelled visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that it seemed to him that “the lady” at the Tribunal had “a made up mind the way she was talking” and the way that “she spoke to [the applicant]”. The applicant stressed that the Tribunal Member’s manner was direct and short and it was “clear [that] the answer was going to be a no”.
The applicant’s concerns, to the extent that they point to any issue of jurisdictional error on the part of the Tribunal, will be addressed below.
CONSIDERATION
Having considered all of the materials before the Court (including the applicant’s grounds of review, the information included in the applicant’s affidavit and his oral submissions before this Court) and noting that the applicant was unrepresented in this matter, the Court has interpreted the applicant’s concerns as broadly as possible (as per the principles in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392).
On that basis, the Court considers the applicant to raise the following concerns:
(a)whether the Tribunal failed to consider evidence or claims;
(b)whether the Tribunal’s decision was illogical or unreasonable;
(c)whether the Tribunal failed to afford the applicant procedural fairness; and
(d)whether the Tribunal’s decision was affected by bias.
These concerns will be addressed by the Court in turn below.
Whether the Tribunal failed to consider evidence or claims
The applicant appears to contend (in both his application for judicial review and his affidavit filed in this Court) that the Tribunal failed to consider evidence or claims that he put before it.
In particular, the applicant suggests that the Tribunal failed to consider:
(a)the applicant’s evidence regarding the financial difficulties he faced as a result of the change in his family circumstances brought about by his father’s death;
(b)the applicant’s evidence regarding the impact of the COVID-19 pandemic;
(c)the benefit of the course to the applicant’s future (as required by “the Directions”);
(d)the fact that the applicant had multiple, significant incentives to return to his home country; and
(e)the fact that the applicant intended to return to his home country upon completion of his course.
The Court notes that, whilst the Tribunal is required to consider all claims made by an applicant (including those claims which are expressly made and those that arise squarely on the material before the Tribunal) (see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [13]), the Tribunal is not obliged to refute, line by line, the relevant material or expressly reference each piece of evidence provided by an applicant (or, indeed, make findings regarding every piece of evidence): Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) at [346] and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14]. Further, a failure by the Tribunal to specifically refer to any piece of evidence does not necessarily mean that it has not been considered: Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 (“SZSRS”) at [34].
To the extent that the applicant suggests that the Tribunal failed to consider his evidence in relation to financial difficulties and the impact of COVID-19, this fails on a factual level. It is evident from the Tribunal’s written reasons that it considered all of the applicant’s claims and evidence (both written and oral) before it.
In particular, the Court notes that the Tribunal:
(a)considered the written material before the delegate and the Tribunal, including the information provided by the applicant to the Department in response to the NOICC (at [18]), supporting documents provided at the time of providing the response to the NOICC (at [19]), a written statement provided by the applicant to the Tribunal ahead of the hearing before it (at [20]) and additional documents provided to the Tribunal ahead of the hearing (at [21]);
(b)detailed the discussions it had with the applicant at the hearing before it, essentially clarifying information provided by the applicant in the written materials outlined above (at [23]-[35]);
(c)outlined the oral submissions made by the applicant’s representative on his behalf at the Tribunal hearing (at [36]);
(d)made findings having regard to the matters it considered and set out earlier in its decision (at [38]-[53]); and
(e)ultimately determined that the applicant’s visa should be cancelled (at [54]-[56]).
Having reviewed the Tribunal’s decision record in in detail, the Court is satisfied that the Tribunal considered all of the evidentiary and oral claims made by the applicant (including those the applicant has referenced in the particulars of his ground of review). In particular, the Court notes that (as correctly submitted by the Minister at [26] of the submissions filed in this Court on 5 July 2024) the Tribunal considered:
(a)the applicant’s claimed reasons for his failure to maintain enrolment (at [18], [20], [25] & [29]);
(b)the fact that the applicant came to Australia to study and wanted to complete a course before returning to his home country (at [34]);
(c)his father’s illness and the impact that it had on the applicant’s ability to study (at [18], [20], [27] & [44]);
(d)the difficulties the applicant claimed to have faced as a result of the COVID-19 pandemic (at [18]);
(e)the financial difficulties that the applicant claimed to have suffered (at [18], [25]-[26] & [28]);
(f)the fact that the applicant wished to complete his studies, return to India and open a restaurant (at [20], [34], [36] & [39]);
(g)the fact at the applicant could not complete a diploma course in India (at [36]); and
(h)the impact that not completing his study would have on the applicant (at [18], [20] & [35]).
It is evident from the summary provided above that each of the issues raised in each of the applicant’s grounds were considered or at least referenced by the Tribunal in the Tribunal’s decision.
While the Tribunal is not required to specifically reference each item of evidence before it (Yusuf at [346]), the Court is generally entitled to infer that a matter not mentioned in the Tribunal’s reasons was, at a minimum, not considered to be material: SZSRS at [33]. The Court considers this to be the case in relation to matters to which the Tribunal referenced but did not give detailed reasons. On the basis of the relevant case law and reasons outlined above, the Court is not prepared to draw any inference that those matters were overlooked.
No jurisdictional error arises in this regard.
Insofar as the applicant suggests that the Tribunal was required to take into account certain factors (for example, the benefit of the course to the applicant’s future, by reference to any Ministerial Direction), the Court disagrees for the reasons that follow.
Whilst there are certain factors that a decision maker is required to consider when determining whether or not to grant an applicant a student visa (with those factors relating to whether an applicant genuinely intends to stay in Australia temporarily for the purpose of study usually being set out in a Ministerial Direction issued pursuant to s 499 of the Act and including matters such as the benefit of the proposed course to the applicant’s future and the incentives for the applicant to return to his or her home country), that is not the case in relation to a visa cancellation under s 116 of the Act.
As correctly explained by the Tribunal (at [16] of its decision record), the Tribunal identified that the ground for cancellation arose in this matter under s 116(1)(b) of the Act. As that ground did not require mandatory cancellation of the applicant’s visa (under s 116(3) of the Act), the Tribunal was required to consider whether to exercise its discretion to cancel the applicant’s visa. As the Tribunal (again correctly) noted, there are no matters specified in the Act or Regulations that the Tribunal (or a decision maker) is required to consider when determining whether to exercise its discretion to cancel a visa under s 116 of the Act.
There are, however, matters outlined in the Department’s PAM3 policy documents which are usually taken into account (if relevant) when a decision maker is considering whether to exercise that discretion. The relevant factors that are considered are apportioned weight either for or against visa cancellation. At the time of the Tribunal’s decision, the matters that were detailed in PAM3 for any consideration as to whether to exercise discretion to cancel a temporary visa can be summarised as follows:
(a)the purpose of the applicant’s travel to and stay in Australia;
(b)the extent of the applicant’s compliance with visa conditions;
(c)the degree of hardship that may be caused to the applicant and any family members;
(d)the circumstances in which the ground for cancellation arose;
(e)the applicant’s past and present behaviour towards the Department;
(f)whether there are any persons in Australia whose visas would (or may) be cancelled (pursuant to s 140 of the Act);
(g)whether there are any mandatory legal consequences to a cancellation decision;
(h)whether Australia has obligations under relevant international agreements that would be breached as the result of the visa cancellation; and
(i)any other relevant matters.
As can be seen from the list of suggested factors, the benefit of the proposed course to the applicant’s future and the incentives for the applicant to return to his home country were not relevant factors that the Tribunal needed to take into account.
The Court is satisfied that the Tribunal correctly considered the factors relevant to the applicant’s circumstances from the list of matters detailed in the PAM3. The Tribunal did not fail to consider any mandatory considerations and no jurisdictional error arises in this regard.
To the extent that the applicant has concerns with the weight that the Tribunal gave to those matters, the Court will address that issue below.
Whether the Tribunal’s decision was illogical or unreasonable
As outlined above, the applicant also appears to suggest that the Tribunal’s findings (or the Tribunal’s decision as whole) are illogical or unreasonable. The Court disagrees for the reasons that follow.
The test for irrationality or illogicality was summarised in SZMDS (per Crennan and Bell JJ), is as follows:
131.…..[T]he 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.
…
135 …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.
As detailed by this Court above, the Tribunal considered the matters raised by the applicant and sought to clarify matters where it deemed it necessary to do so. The Tribunal then weighed those matters either in favour of cancellation or against it. Some factors were weighed in the applicant’s favour and others were not.
In the circumstances of this case, there was nothing unreasonable, illogical or irrational about the Tribunal’s findings. The Court is satisfied that the findings made or conclusions reached by the Tribunal are not conclusions that no other reasonable decision maker could have reached on the material before it.
To the extent that the applicant takes issue with the weight the Tribunal allocated to certain factors, the Court notes that it is well established that the degree of weight to be given to evidence provided is a factual question for the Tribunal alone: see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] and Abebe v Commonwealth of Australia [1999] HCA 14 at [197] per Gummow and Hayne JJ.
No jurisdictional error arises in this regard.
Whether the Tribunal failed to afford the applicant procedural fairness
To the extent that the applicant suggests that the Tribunal failed to afford him procedural fairness, the Court disagrees for the reasons that follow.
As explained by this Court in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 243, Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters of this sort and the Tribunal was obliged to comply with those requirements: s 357A of the Act.
The Court has considered whether the Tribunal did so in this matter and notes that:
(a)the Tribunal invited the applicant to attend a hearing before it and the applicant did so (with the assistance of his representative) (CB 147-150). The applicant gave evidence at the hearing in support of his visa application. Accordingly, the Tribunal complied with s 360 of the Act;
(b)during the course of the hearing, the Tribunal put information to the applicant about his enrolment record obtained from his PRISMS records. The Tribunal (in its written reasons) notes that it explained to the applicant what the PRISMS database was and the significance of the records obtained from it. The Tribunal also appears to have taken the applicant through his study and enrolment history and explained to the applicant that the records indicated that the applicant had not maintained his enrolment. The Tribunal also explained to the applicant the consequences of the Tribunal relying on the enrolment record and the applicant confirmed that he understood. When asked by the Tribunal if he wanted to comment on that information, “the applicant told the Tribunal that he agreed with the PRISMS record” (see [22]-[24] of the Tribunal’s reasons). There is no evidence to suggest that the applicant (or his representative) requested additional time to comment on or respond to that information or that the applicant was unable to respond to the information because he was not given sufficient time to do so. The Tribunal thus complied with s 359AA of the Act;
(c)the dispositive issue before the Tribunal (being whether the ground for cancellation arose on the basis that the applicant failed to maintain his enrolment as required by Condition 8202 in Schedule 8 of the Regulations and whether, as a result, the applicant’s visa should be cancelled) was the same as the issue before the delegate and which led to the cancellation of the applicant’s visa. Accordingly, no error of the kind contemplated by SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 arises in this matter and the Tribunal complied with s 360 of the Act; and
(d)the Tribunal questioned the applicant, listened to his responses and actively sought further information from him to clarify information that he had provided to the Department and to the Tribunal about his circumstances. There is nothing to suggest that the Tribunal was anything but impartial and objective: SZRUI.
The Court is satisfied that the Tribunal afforded the applicant procedural fairness and no jurisdictional error arises in this regard.
Whether the Tribunal’s decision was affected by bias
In oral submissions before this Court, the applicant appeared to suggest that the Tribunal’s decision was affected by bias on the basis that the Tribunal Member’s body language or statements made by the Tribunal Member suggested that they were not open to considering the matters that the applicant chose to raise at the hearing.
It is well established that any allegation of bias is one that must be distinctly made and clearly proven. To prove an allegation for bias, it is for the applicant to 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: 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 might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 424 at [32].
There is no evidence before the Court to establish the Tribunal’s demeanour or body language at the hearing and no evidence in the form of a transcript to establish any comments that the Tribunal made during the course of the hearing. In the absence of a transcript or any evidence to the contrary, the Court “is entitled to accept the [Tribunal’s] decision record as accurately reflecting the matters to which it refers at taking place at the hearing”: SZVUP v Minister For Immigration & Border Protection & Anor [2015] FCCA 1287 at [13]-[14] (citing Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62) and Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 771 at [44].
Further, there is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing, gave the applicant opportunities to provide additional evidence, considered the evidence provided to it and asked the applicant (at the hearing) to provide additional information to the Tribunal to clarify information given to the Department and to the Tribunal in writing.
It is evident from the Tribunal’s decision record that the Tribunal engaged with the matters raised by the applicant and allocated weight to all relevant matters. Whilst some of the conclusions formed by the Tribunal were adverse to the applicant, the Court is satisfied (as outlined above) that the conclusions were open to the Tribunal and do not, in and of themselves, point to any bias on the part of the Tribunal.
Essentially, having considered the applicant’s circumstances and the evidence before it (including the evidence given by the applicant to the Department, evidence given to the Tribunal prior to the Tribunal hearing and evidence from the applicant and submissions from his representative made at the Tribunal hearing), the Tribunal ultimately determined that the applicant’s visa should be cancelled.
The Court is satisfied that the Tribunal was not biased in its review of this matter and no jurisdictional error arises in this regard.
Futility
In oral submissions before this Court, Ms Tattersall (on behalf of 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. The Minister submitted that, because the applicant’s visa (had it not been cancelled) was due to expire on 15 March 2023 (CB 55), it would be futile to remit the matter to the Tribunal.
The Court agrees for the reasons that follow.
The Court references its decisions in Handa v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 66; BOJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 990 and other similar matters (citing Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868). The analysis provided in those matters applies equally in this matter and is repeated and adopted below.
Sections 37A, 133 and 134D of the Act allow the Minister to extend the period in which a visa is in effect in certain circumstances. The Court notes, however, that none of these provisions relate to the particular circumstances that arise in 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”).
On that basis, there appears to be no statutory power for the Tribunal to extend the applicant’s 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 also 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 claimed 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.
Justice French made findings that the visa was refused on 4 June 1999 and that this refusal was within the two-day time period. Hence, 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 in this matter is also “long expired”. As correctly submitted by the Minister, the evidence before this Court indicates that the applicant’s visa expired in March 2023 (more than 18 months ago).
In Patel v Minister for Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179, Judges of this Court found that in circumstances where the student visa 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 equally here.
It would, in the circumstances of this matter, be futile to remit the matter to the Tribunal because the applicant’s student visa would have expired on 15 March 2023 (CB 55).
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicant in this matter (on 30 December 2023) as well as the applicant’s oral submissions before this Court, have failed to identify any jurisdictional error.
The Court is also unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 December 2024
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