CBR20 v Minister for Immigration
[2020] FCCA 2139
•4 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBR20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2139 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – where Tribunal applied wrong test. |
| Legislation: Migration Act 1958 (Cth), ss.101(a), 101(b), 107, 108, 109(1), 375A, 477(2) Migration Regulations 1994 (Cth), reg.2.41. |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 |
| Applicant: | CBR20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1092 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 July 2020 |
| Date of Last Submission: | 23 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 4 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Arc Visa and Migration |
| Solicitors for the First Respondent: | Minter Ellison |
| The Second Respondent entered a submitting appearance |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent made on 11 November, 2019.
A writ of mandamus issue remitting the application the subject of this proceeding to the second respondent to hear and determine according to law.
The first respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1092 of 2019
| CBR20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 2 April, 2020 the applicant applies for an extension of time within which to commence an application for judicial review of a decision of the second respondent made on 11 November, 2019. That decision affirmed a decision of a delegate of the first respondent to cancel the applicant’s Return (Residence) (Class BB) (subclass 155) visa pursuant to s.109(1) of the Migration Act 1958 (Cth). That provision allows the first respondent to cancel a visa in circumstances where incomplete or incorrect information has been provided in a visa application.
The first respondent consents to the making of an order extending time pursuant to s.477(2) of the Act to 19 December, 2019 – the date upon which the applicant commenced these proceedings. Independently of the first respondent’s consent, I am satisfied that I should grant the extension sought by the applicant, because notwithstanding the delay in commencing his proceeding, his proposed application for review is sufficiently meritorious to conclude that it is in the interests of the administration of justice to grant the extension he seeks. In those circumstances, the hearing before me proceeded as the hearing of the merits of the applicant’s amended application for review.
In short form, the applicant contends that the second respondent erred in its consideration of the application before it by not taking into account certain written submissions made on his behalf and by applying a wrong test when considering whether to cancel his visa. The first respondent opposes the application and argues that no jurisdictional error is apparent in the second respondent’s decision. The second respondent has entered a submitting appearance.
I have the benefit of written submissions filed on behalf of both the applicant and the first respondent. I also have the benefit of oral argument from each party.
Background
The applicant arrived in Australia in late April or early May, 2010. He was, for the purposes of the Migration Act, an illegal maritime arrival. He applied for and was granted a Protection (Class XA) (subclass 866) visa. He engaged Australia’s protection obligations on the basis of his claims that he was a citizen of Afghanistan and could not return there.
Because this case involves a protection visa application (at least in the first instance) and the issues that arise in the case arise from that application, it has been necessary to reduce the number of personal details for the applicant that are contained in these reasons. That is a little problematical because the matter that informed the second respondent’s decision concerned the applicant’s identity and the representations he made about that in his visa protection application.
In summary, those claims were as follows:
a)he was born in, and otherwise came from, Afghanistan;
b)he belonged to the ethnic Sayed Hazara community;
c)he was a Shia Muslim;
d)he worked with his uncle as a beggar;
e)his uncle tried to force him to convert to be a Sunni Muslim;
f)his uncle made him fraudulently pose as a collector for charity;
g)his uncle presented him in Thailand as being Sunni and willing to be a suicide bomber for his religion; and
h)his father had passed away after an altercation with a political party when he had been captured by them and died from the injuries.
He asserted that he had a particular name.
At the time of the applicant’s protection visa application, s.101 of the Act was, and continues to be, in the following terms:
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
On 29 March, 2016 the applicant submitted an application for Australian citizenship. As part of the application process, the applicant was required to undertake an interview with the identity section of the first respondent’s department on 5 October, 2017.
On 21 October, 2016 the applicant was granted the visa which is the subject of this proceeding.
On 27 November, 2017 the identity assessment was finalised and on 25 January, 2018 the first respondent refused the application for Australian citizenship on character grounds.
Relevantly, s.107 of the Act provides:
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107A Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
On 16 May, 2019 an officer of the department sent the applicant a Notice of Intention to Consider Cancellation as required by s.107 of the Act. In it, the first respondent asserted that the department had received information that the applicant’s true name was not the name he had given in his protection visa application and that he had a different date of birth. The information suggested that the applicant was a citizen of Pakistan, born in Quetta. His father’s name and date of birth were specified in the letter. It was asserted that his father’s occupation was known to the department and that he too, was a Pakistani citizen. The notice asserted that the applicant had two brothers and a sister who also reside in Australia. The notice concluded that both his parents, he and his siblings were born in Pakistan, and that he was a Pakistani citizen at the time of his application for a protection visa. The information indicated that he did not hold an adverse profile as an Afghan citizen who feared returning to that country because of his paternal uncle’s previous mistreatment towards him.
The notice asserted that the applicant had not complied with ss.101(a) and 101(b) of the Act. In particular, the notice averred that in the applicant’s Form 866—Application for a Protection (Class XA) visa and supporting statutory declaration used to secured his initial protection visa, the applicant:
a)provided incorrect details with respect to his Afghani identity (name, citizenship, date and place of birth);
b)failed to declare any other names had been known by (i.e. his Pakistani identity);
c)failed to declare a right to enter and to reside in Pakistan as a Pakistani citizen;
d)provided incorrect information with respect to his claims for protection and in particular:
i)details of his father’s torture and murder, in circumstances where information before the department indicated the applicant’s father was not deceased at the time the protection visa application was lodged;
ii)details of events which led to the applicant’s adverse profile and subsequent departure from Afghanistan, in circumstances where the applicant never lived in Afghanistan; and
iii)expressed fear of persecution upon return to Afghanistan, in circumstances where the applicant was a Pakistani citizen (having been born in Pakistan to a Pakistani father, and entitled to the protection of the Pakistani government).
The applicant was requested to provide a response to the cancellation notice by 30 May, 2019. However, he provided no response.
Section 108 of the Act provides (and did at the relevant time):
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
Section 109 of the Act provides (and did at the relevant time):
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
On 15 July, 2019 the first respondent’s delegate decided that there was non‑compliance by the applicant in the way described in the notice given on 16 May, 2019. Pursuant to s.109 of the Act the delegate cancelled the applicant’s residence visa.
On 24 July, 2019 the applicant sought review of the delegate’s decision before the second respondent. He was represented by a registered migration agent.
On 10 November, 2019 the applicant’s representative provided a submission to the second respondent dated 3 November, 2019. In that submission, the applicant:
a)accepted that neither his real name nor his real date of birth was stated in his protection visa application;
b)accepted that he was born in Pakistan;
c)explained that he became entangled in a situation of blackmail due to having a relationship with a girl he met at a juice bar in Pakistan;
d)claimed that the girl’s father would take the applicant across the border into Afghanistan to beg and introduce him to the Taliban and that he would be threatened;
e)claimed that he was taken to Thailand and he became scared when in one of the meetings when collecting money there was talk of suicide bombers;
f)acknowledged that inaccurate information was provided in his protection visa application however his actions were explained by the facts that he was very young and had to go through a lot of emotional stress and turmoil meeting some not so nice people;
g)claimed that his mental health was affected;
h)claimed that if he was sent back to his home country, there would be adverse reaction because of what he did with the father of the girl from the juice bar, namely doing bad things in the community; and
i)his father is well known and he and his family are very easily targeted in Pakistan.
Whilst in Australia, the applicant was charged and convicted of certain criminal matters involving sexual assault committed by him while working as a taxi driver. He also claimed to the second respondent that knowledge of those charges has become known in Quetta and so he cannot return there. He claimed that he is in a de facto relationship in Australia and living with his partner without marriage. He claims that is considered a serious crime in Pakistan and there is a very high chance that there would be danger to his life and he would face the death penalty if he was to return to Pakistan. He claimed that his brothers are in Australia and they had to leave Pakistan as Shia Muslims are targets of violence and are harassed and killed in Pakistan.
The submission enclosed a number of character references in support of the applicant.
On 11 November, 2019 the applicant appeared before the second respondent with the assistance of his legal representative, to give evidence and to present arguments. At the hearing, the second respondent provided the applicant with a certificate issued under s.375A of the Act in relation to information obtained by the department which undermined the applicant’s claims with respect to his identity and Australia’s protection obligations. Neither party in this application retains a copy of the certificate nor is it in the evidence before me.
Following the hearing, the applicant’s representative provided a submission to the second respondent which deal specifically with the applicant’s criminal charges.
On 11 November, 2019 the second respondent affirmed the decision to cancel the applicant’s residence visa.
The grounds of review
The amended application for review contains five grounds. However two grounds are now abandoned. The remaining three grounds are pressed. Each of the remaining grounds concern the discretion exercised by the second respondent to cancel the applicant’s visa. None of them go to whether an occasion to consider cancellation had arisen. That is to say, the applicant accepts that the discretion to cancel his visa was engaged, however, he argues that the discretion was either exercised erroneously or not at all.
The first ground pressed by the applicant (ground one in the amended application) is in the following terms:
1. Failing to take important information into consideration, while making a decision - Submissions to the AAT.
To understand the applicant’s submission on this ground it should be recalled that s.109(1)(c) permits the first respondent to cancel the applicant’s visa after having regard to any prescribed circumstances. Regulation 2.41 of the Migration Regulations 1994 (Cth) prescribes certain circumstances that are to be taken into account for the purposes of s.109(1)(c) of the Act. Relevantly, one of the prescribed circumstances is:
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
Following the hearing before the second respondent, the applicant’s representative sent a further written submission to the second respondent that specifically addressed the applicant’s criminal convictions and his attitude towards them. By this ground the applicant argues that the second respondent did not take that submission into account. Of particular importance to this ground is that the submission contained an express statement of shame and remorse by the applicant for his offending. He acknowledged that his actions would have affected his victim very much. The first respondent acknowledges that the second respondent makes no express mention of the receipt of the post-hearing submission or the content of the submission in its reasons for decision.
What the second respondent said in its reasons for decision on this topic is:
58. The Tribunal has considered the subsequent behaviour of the applicant and any breaches of the laws since the non-compliance and notes that the applicant has been charged and convicted with sexual offences. He was sentenced to two years imprisonment which was suspended after he served six months in prison. The applicant’s attitude in relation to this conviction, in the Tribunal’s mind, is absurd self-pity for the ruins in which the conviction has laid to his life. He has shown no regard to the victim or any remorse or even recognition that he, in fact, committed any crime at all.
The applicant argues that the failure by the second respondent to refer to his post-hearing expressions of remorse and shame concerning his criminal convictions is significant. He argues that his acceptance and remorse is contrary to the finding by the second respondent. He argues that the failure to take into account his submission about these matters accounts for “a serious adverse finding that is made by the second respondent”. He argues that the finding made by the second respondent cannot be reconciled with the material placed before it if it had been taken into account as there is no attempt by the second respondent to deal with the comments made by the applicant.
However, I am by no means persuaded that the second respondent did not give consideration to the applicant’s post hearing submission. In [58] the second respondent expressly refers to the applicant’s attitude in relation to his conviction. The only material before me in which it is suggested that the applicant expressed an attitude towards his conviction was the post-hearing submission. The question of his convictions for sexual assault are mentioned in his written submissions made on the day of the hearing, but there are no expressions of regret, remorse or otherwise in respect of those convictions in that submission.
In [49] – [57] the second respondent considered the applicant’s explanations for the untruthful information that he put in his protection visa application. It also considered his claims about the true situation in Pakistan and why he now seeks to remain in Australia. It is fair to say, I think, that the second respondent comprehensively rejected all of the matters relied upon by the applicant. For example, in [55] the Tribunal said that it was “not satisfied that the applicant’s subsequent account of the reasons he departed Pakistan and came to Australia is a truthful account but a continuation of his attempts, by any means, to remain in Australia. He has provided no documentary or other evidence to support his claims and the Tribunal does not accept that this account is any more truthful than his previous account.”
In [56] the second respondent recorded that it was “not satisfied that the circumstances described by the applicant, as to the reasons he lied to the Department, such that the Tribunal would be moved or compelled to consider not cancelling his visa. The applicant was not incapacitated in relation to the choices he has made and, in the Tribunal’s mind, he has chosen to continue to mislead everyone in his efforts to remain in Australia.”
It is against those findings, and others like them that the second respondent considered that the applicant’s attitude in relation to his conviction was “absurd self-pity for the ruins in which the conviction has laid to his life”. The second respondent was entitled to reject the applicant’s claims of remorse and regard for the victim of his crimes. Having regard to the findings made by the second respondent about the applicant’s veracity generally, it is of little surprise that it rejected his claims about that.
In any event, even if my assessment that the second respondent has indeed taken into account the post-hearing submission is wrong, this ground of review must nonetheless fail. The second respondent was required to have regard to any breaches of the law committed by the applicant since his earlier non-compliance and the seriousness of those breaches. The second respondent plainly did so. It plainly had regard to the breaches of the law committed by the applicant after he had not complied with his veracity obligations in his protection visa application. Even if the second respondent’s consideration of that matter was predicated upon a factual error, by not giving any consideration to the applicant’s submissions about his convictions, it cannot be said that the second respondent failed to engage in “an active intellectual process” in which each of the prescribed circumstances received “genuine” consideration. I accept the first respondent’s submissions on this point.
Moreover, it cannot be said that this particular prescribed consideration was critical or fundamental to the making of the second respondent’s decision to cancel the applicant's visa. A fair reading of the second respondent’s decision reveals that it was more concerned with the applicant’s general lack of veracity and his failure to provide a credible explanation for his attempt at misleading the first respondent. I accept the first respondent’s submission that it was the applicant's deliberate attempts to deceive the department by providing false information, both for the purposes of his protection visa application and the review application before the second respondent, which were critical to the second respondent’s determination. Thus, even if the second respondent’s view about the applicant’s attitude towards his criminal conviction was erroneous and against the post-hearing submission made by the applicant that error was not material to the second respondent’s decision.
This ground of review reveals no jurisdictional error.
The second ground of review pressed by the applicant (ground number two in his application) is in the following terms:
The tribunal applied a wrong test in requiring itself to be moved or compelled to consider not cancelling the applicant's visa [para 56]. See also paragraph 57 where the tribunal found that “there are no reasons present that would move the tribunal to consider not cancelling his visa.” Rather the tribunal was required to determine what the correct decision was having regard to the Regulation 2.41 matters.
To make out this ground, the applicant points to [56] and [57] of the second respondent’s reasons for decision. Those paragraphs are as follows:
56. The Tribunal is not satisfied that the circumstances described by the applicant, as to the reasons he lied to the Department, are such that the Tribunal would be moved or compelled to consider not cancelling his visa. The applicant was not incapacitated in relation to the choices he has made and, in the Tribunal’s mind, he has chosen to continue to mislead everyone in his efforts to remain in Australia.
57. The Tribunal has considered his present circumstances which he describes as desperate. He is not presently working because he claims he is depressed. He provided a Centrelink certificate indicated that he is taking Valium and an antidepressant. He is living with his current domestic partner but has provided no supporting evidence of that. He has no children in Australia to support and told the Tribunal he does not provide support to his son in Pakistan. There are no reasons present in the applicant’s current circumstances that would move the Tribunal to consider not cancelling his visa.
I have emphasised the words that the applicant argues are important to make his point. He says the use of such words by the second respondent demonstrates that the second respondent has misunderstood its task. Rather than considering whether the applicant’s visa should be cancelled after considering all of the relevant circumstances, prescribed or otherwise, he argues that the second respondent has approached the case on the basis that the applicant’s visa should be cancelled unless there were reasons to consider not cancelling his visa. He argues that the correct test does not require that some factor must exist so as to cause the second respondent to consider not cancelling the applicant’s visa. Rather, the second respondent was required to consider all of the relevant circumstances, prescribed or otherwise, “together as was required” and decide if the visa should be cancelled.
The second respondent recorded the nature of its task on a number of occasions throughout its reasons. The first appears in [2] of the reasons where the second respondent recorded that “the issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled” (my emphasis). At [37] the second respondent recorded that “Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act.” (my emphasis). Preceding [46], the second respondent uses the heading “Should the visa be cancelled?”. In [46] the second respondent records (my emphasis):
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
Each of these statements correctly reflects the task that the second respondent was to perform. The applicant’s case, however, is that the second respondent did not perform that task, but rather a different task.
I have already set out above what the second respondent said in [56] and [57] of its reasons. To those paragraphs should be added [60] (my emphasis):
60. The Tribunal has carefully considered and weighed the entirety of the applicant’s circumstances individually and cumulatively and is not satisfied that the applicant’s visa should not be cancelled.
A fair reading of these paragraphs of the second respondent’s decision reveal that the approach taken by the second respondent was to consider whether the matters raised by the applicant would “move the Tribunal” or compel the second respondent to consider not cancelling his visa. These are not matters of mere semantics but in my view, matters of substance. The approach implemented by the second respondent was to start from the proposition that the applicant’s visa should be cancelled unless there was reason not to cancel it. The correct approach was to consider whether the already existing visa should be cancelled. In the absence of satisfaction that it should be cancelled, the visa would remain in place.
The power conferred by s.109(1) is permissive. A similar (although not identical) provision was considered in Lesuma v Minister for Immigration and Citizenship No 2 (2007) 99 ALD 514. In that case the Court considered the discretion to cancel a visa conferred by s.501(2) of the Migration Act. Of that power, the Court said at [30]:
30. The question is whether the Tribunal wrongly interpreted s 501(2) as conferring a discretion not to cancel a visa as distinct from conferring a discretion to cancel the visa. Section 501(2) is permissive. It confers a power to cancel a visa in the exercise of the Minister’s discretion, or, in the present case, the Tribunal’s discretion. There is a difference between power and obligation. The question is whether the Tribunal considered that the section obliged it to cancel the applicant’s visa, unless it was satisfied that it should not cancel the visa (see Ross v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 107 FCR 1 at [27] to [29], and Doukmak v Minister for Immigration and Multicultural Affairs 114 FCR 432 at [50] and [51]).
Here, the language used by the second respondent in [56], [57] and [60] strongly suggests that it was obliged to cancel the applicant’s visa, unless it was satisfied that it should not cancel the visa. Nowhere is that more apparent than in [60] of the second respondent’s reasons. On any reasonable interpretation of that paragraph, the second respondent is suggesting that the applicant’s visa must be cancelled unless it is satisfied that it should not be cancelled.
I have considered whether the second respondent’s statements in [56], [57] and [60] are merely infelicitous expressions of the task to be carried out by it. In that regard, in [61] of its reasons, the second respondent expresses the general conclusion that:
61. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
However, the conclusion I have come to is that the general statements made by the second respondent throughout its reasons about the task in which it was engaged do not demonstrate that the second respondent in fact applied the right approach to the determination of the applicant’s review. Paragraphs [56], [57] and [60] demonstrate that the second respondent did not in fact undertake the task that it had identified elsewhere in its reasons. It did not consider whether the applicant’s visa should be cancelled but rather, it considered whether the applicant’s visa should not be cancelled. Its implementation of the test that it had identified elsewhere in its reasons was flawed in the manner identified in Lesuma (above). The second respondent failed to carry out its statutory task and instead, carried out some other task. To do that, is to fall into jurisdictional error: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83.
The first respondent submits that this matter is distinguishable from Ross (referred to above in Lesuma) on the basis that in that case it was apparent that the decision-maker acted on a presumed obligation “to cancel the visa unless he was positively of the state of mind that he should not cancel the visa”. The first respondent submits that is not what happened in this case having regard to the correct statements of the task to be undertaken by the second respondent. However, in my view that is exactly what is happened here. The circumstances considered by the second respondent particularly at [56] and [57] were considered by the second respondent with an eye to determining whether those matters “moved or compelled” the second respondent “to consider not cancelling” the applicants visa. The use of the phrase “compelled to consider not cancelling” in [56] of the reasons for decision is particularly telling.
This ground of review reveals jurisdictional error in the second respondent’s decision.
The third ground of review (the fifth ground in the application for review) is that the decision to affirm the cancellation was unreasonable. The applicant’s case is that it was unreasonable because the second respondent did not give any consideration to the remorse of the applicant towards the victim of his criminal offending. He argues that it was illogical that the second respondent could have formed the view that it did when there was evidence before it that directly contradicted the findings of the second respondent.
However, for the reasons I have given above in relation to the first ground of the review, the second respondent did take those matters into account and did not, at least by implication, accept his statements about that. The second respondent’s decision is not infected by any illogicality or irrationality. This ground of review does not reveal any jurisdictional error.
Conclusion
The applicant has established that the second respondent did not decide the matter put for its determination, but rather another question. He has established that the second respondent’s decision is thereby affected by jurisdictional error.
Accordingly, I make orders in terms set out at the commencement of these reasons.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 4 August, 2020.
Associate:
Date: 4 August 2020
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