Chaudhary v Minister for Immigration

[2019] FCCA 2641

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAUDHARY v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2641

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Nepal – cancellation of student visa – whether there was a failure to consider matter – effect of guidelines used by the Tribunal in reviewing the Delegate’s Decision – whether no evidence to justify making the decision made – whether a denial of procedural fairness by reason of a failure to address claims made – whether jurisdictional error – writs issued.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.75

Migration Act 1958 (Cth), ss.116, 140, 357A, 359A, 414, 474, 476

Migration Regulations 1994 (Cth), Sch.8, Conditions 8105

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 293; (2003) 75 ALD 630
Australian Broadcasting Corporation v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 5 BR137.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] FCA 26; (2003) 179 ALR 389; (2003) 73 ALD 321
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Kaur v Minister for Immigration & Border Protection [2014] FCA 1046; (2014) 144 ALD 292
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 144; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration & Ethnic Affairs v Guo & Anor  [1997] FCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 19 AAR 266; (1994) 33 ALD 13
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Plaintiff M61/2010E v Commonwealth of Australia [2010] FCA 41; (2010) 243 CLR 319, (2010) 85 ALJR 133; (2010) 272 ALR 14, (2010) 123 ALD 244
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
VAS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 350
WZAND v Minister for Immigration & Anor [2009] FMCA 26
WZASU v Minister for Immigration & Anor (No. 2) [2014] FCCA 96
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415
Zentai v Honourable Brendan O’Connor(No 3) (2010) FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293: (2010) 116 ALD 476

Applicant: RAJ KUMAR CHAUDHARY

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 160 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 17 May 2016

Date of Last Submission: 17 May 2016

Delivered at: Sydney

Delivered on:

23 September 2019

(and delivered by telephone by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicant: Mr E Vasilyev

Solicitors for the Applicant: Morris, Alexander & Nelson

Counsel for the First Respondent: Mr A Gerrard

For the Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

1. That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That a writ of certiorari issue quashing the decision of the second respondent made on 19 March 2015.

3. A writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 7 November 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 160 of 2015

RAJ KUMAR CHAUDHARY

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to cancel a Subclass 572 Student (Temporary) (Class TU) visa (“Student Visa”).

2. The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:

a)the Judicial Review Application filed on 20 April 2015, as amended by leave on 20 May 2016 (“Amended Judicial Review Application”);

b)the Applicant’ affidavit filed 20 April 2014 (“Applicant’s Affidavit”)’

c)outlines of submissions filed by the applicant on 2 May 2016 and filed by the Minister on 10 May 2016;

d)the Court Book (“CB”), in which appears the Tribunal Decision dated 19 March 2015: CB 230-238; and

e)the transcript of the hearing before the Court on 17 May 2016 (“Transcript”).

1. It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment, by telephone, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).

Amended Judicial Review Application

1. On 2 May 2016 the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) containing three grounds which are set out and considered below.

Background to the Amended Judicial Review Application

1. The background to the Amended Judicial Review Application is as follows:

   a)the applicant entered Australia on 26 August 2007 on a Student Visa to complete an ELICOS course;

   b)the applicant completed various Certificates and Diplomas before enrolling for courses in Certificate III and IV in Commercial Cookery and a Diploma in Hospitality Management;

   c)the applicant is a citizen of Nepal who was granted a Student Visa on 14 June 2013. The Student Visa was subject to various conditions, including condition 8105 of Schedule 8 (“Condition 8105”) to the Migration Regulations 1994 (“Migration Regulations”) which relevantly provides that a visa holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the visa holder's course of study or training is in session: CB 235 at [29];

   d)on 14 June 2013 the applicant's wife, Ms Sushila Kumari Mahato (“Ms Mahato”) was granted a Student Visa as a secondary applicant;

   e)on 27 January 2013 the applicant's father-in-law (“Father-in-Law”) had an accident and sustained life-threatening injuries, he was hospitalised for intensive treatment and subsequently spent about six months in hospital. According to medical documents: CB 168,  the applicant's Father-in-Law was not able to work or live a normal life with a poor prognosis of achieving full recovery, and a life time need for hands-on care from another person;

   f)the then Department of Immigration and Border Protection (“Department”) received copies of the applicant's payslips and timesheets from the applicant's employers, Nando's Australia Pty Ltd and ISS Property Services Pty Ltd, in respect of work done in September and October 2013: CB 33-40;

   g)on 6 November 2013 the Delegate gave the applicant notice of intention to consider cancelling his Student Visa under s.116 of the Migration Act on the basis that the applicant had worked more than 40 hours a fortnight and therefore breached Condition 8105 (“Breach”) of his Student Visa: CB 41-42;

   h)after interviewing the applicant, later on 6 November 2013, the Delegate decided to cancel the Student Visa on the basis of the Breach and notified the applicant: CB 43-46;

   i)Ms Mahato’s Student Visa was also cancelled pursuant to s.140(1) of the Migration Act.

   j)on 7 November 2013 the applicant sought review of the Delegate’s Decision by the Tribunal: CB 50-60. On 29 October 2014 the applicant and Ms  Mahato appeared before the Tribunal, accompanied by their registered migration agent: CB 172-175 and 231 at [4]-[5];

   k)on 19 March 2015 the Tribunal affirmed the Delegate’s Decision to cancel the Student Visa: CB 230;

   l)on 20 April 2015 the applicant applied to this Court for judicial review of the Tribunal Decision;

   m)on 2 May 2016 the applicant filed the Amended Judicial Review Application and an outline of submissions.

Tribunal Decision

1. In the Tribunal Decision the Tribunal:

   a)identified that the issues were whether the applicant had breached Condition 8105 and, if so, whether the Tribunal should exercise its discretion under s.116(1) of the Migration Act to cancel the Student Visa: CB 231 at [6];

   b)having regard to:

   i)the timesheets and pay records from the applicant's employers in the period from 23 September to 27 October 2013: CB 232 at [12]-[13]; and

   ii)the applicant's oral evidence at the Tribunal hearing that he did work 60 hours in the period from 7 to 20 October 2013: CB 232 at [14],

   was satisfied that the applicant had not complied with Condition 8105: CB 232 at [15]-[16];

   c)noted the discretionary nature of the power to cancel under s.116 of the Migration Act, and that the Migration Act and Migration Regulations did not specify any matters that were required to be considered in relation to the exercise of this discretion: CB 231 at [7] and 232 at [16];

   d)had regard to the matters raised by the applicant as to why the Student Visa should not be cancelled and government policy guidelines set out in the Department's Procedures Advice Manual (“PAM3 Guidelines”): CB 232 at [17];

   e)noted, relevantly, the applicant's evidence that he worked in excess of 40 hours to provide financial support to his Father-in-Law who had been in an accident and was hospitalised: CB 232 at [18];

   f)queried why the applicant had not been studying since he was notified of the Tribunal Decision to cancel the Student Visa. The applicant advised that he did not have the money to study and, having lost the Student Visa, he was restricted from transferring money from Nepal to Australia to meet the costs of studying: CB 233 at [19]. In support of this, the applicant provided evidence from his bank in Nepal (Prabhu Bank) suggesting that he could not access his funds as they could not be transferred overseas: CB 188;

   g)on the basis of information received from the Nepal Rastra Bank (National Bank of Nepal): CB 209-210, which was put to the applicant in accordance with s.359A of the Migration Act: CB 213-214, expressed concerns that the applicant had not given truthful evidence in respect of this issue and that the claims made by Prabhu Bank in respect of access to funds were not reliable: CB 234 at [27];

   h)considered the applicant's claims that he will face hardship if his Student Visa is cancelled and that:

   i)his family and Ms Mahato’s family have no support from anyone else and if he is able to finish his studies he will go back to Nepal and support them;

   ii)the Breach happened only once for a short period of time; and

   iii)he will be unable to find a job and his funds will dissipate quickly which would lead to “tremendous financial hardship” to himself and his family: CB 234 at [28];

   i)noted that the applicant had made no progress on his studies throughout 2014 and considered that the applicant's failure to enrol was not indicative of a commitment to his studies. The Tribunal did not accept the applicant’s claim that he could not study for financial reasons: CB 234 at [29]; and

   j)considered that in the circumstances of this case that, notwithstanding the applicant’s claims of hardship, and where evidence had been given that the Tribunal considered was not genuine, it was not willing to set aside the Student Visa cancellation: CB 234 at [19].

Consideration – generally

Jurisdictional error required

1. The Tribunal Decision may be set aside by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 4.76; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1.

2. An error may constitute a jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question ;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

Ground 1 - failure to consider a relevant matter

1. Ground 1 of the Amended Judicial Review Application states:

   The making of the decision was an improper exercise of power by the Tribunal.

   Particulars

   The Tribunal ignored and failed to have regard to relevant material as required by a policy which was compulsory to observe and thereby committed jurisdictional error. Specifically, the Tribunal failed to observe a policy, the Procedure Advice Manual 3 that constitutes a failure to consider a relevant matter.

Applicant’s submissions

1. The applicant made the following general submissions:

   a)the making of the Tribunal  Decision was an improper exercise of power by the Tribunal;

   b)the Tribunal ignored and failed to have regard to relevant material as required by a policy which was compulsory to observe and thereby committed jurisdictional error;

   c)the Tribunal failed to observe PAM3, and that constitutes a failure to consider a relevant matter;

   d)the Tribunal in exercising its discretion whether or not to cancel the Student Visa should have regard to the matters raised in the PAM3 Guidelines: Kaur v Minister for Immigration and Border Protection [2014] FCA 1046; (2014) 144 ALD 292 (“Kaur”).

   e)PAM3 prescribes nine matters which should have been considered by the Tribunal:

   It is policy that delegates take into account the following nine matters, if relevant, when deciding whether to cancel a visa; they should consider each of these nine matters, even if not specifically raised by the visa holder:. The matters that should be considered evolved from a body of case law relevant to visa cancellations and are designed to afford fairness to a visa holder. The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder.

   In relation to each of the nine matters the applicant made the submissions set out hereunder.

Matter 1

1. In relation to matter 1, which is as follows:

   The purpose of the visa holder's travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia,

   the applicant made the following submissions:

   a)at CB 234 at [28] the Tribunal noted the hardship that the applicant would face if he was not able to stay in Australia; and

   b)the Tribunal failed to address the applicant's claim as to what his plans are upon return to Nepal should he be allowed to stay in Australia and finish his studies. The applicant submitted that he is going to start a tourist business in Nepal using proceeds from his aged parents' assets, and that was the applicant's reason for studying a course in hospitality, following courses in business: CB 178.

Matter 2

1. In relation to matter 2, which is as follows:

   The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions,

   the applicant made the following submissions:

   a)the Tribunal failed to consider at all that the applicant spent six years in Australia on a Student Visa and had no previous violations of any visa condition. The Breach relates only to one fortnight period in October 2013. The hours over­worked by the applicant occurred during one week only 14-20 October 2013;

   b)in regards to the period 23 September - 6 October 2013 when the applicant allegedly worked 44 hours, the applicant provided the explanation that he was working on a public holiday and his extended payment was wrongly recorded as extended hours. This explanation was not challenged by the Tribunal: CB 232 at [14]; and

   c)submitted that the Tribunal’s failure to explain why it did not exercise its discretion in favour of the applicant in circumstances where the Breach was of such a short duration leads to the jurisdictional error as cited in Kaur at [13] per Mansfield J, as follows:

   In the light of those matters, it is difficult to understand why the Tribunal did not exercise its discretion, in the light of the contravention of the condition, not to cancel the visa. The expression "considering the circumstances as a whole" is unhelpful. If it were the case (as mentioned above) that the Tribunal had found only a two week contravention of the condition between 30 June 2013 and 12 July 2013, one would add to the balance that the period of the contravention itself was quite short. There would appear to be no reason, and there is certainly no reason expressed, why in “the circumstances as a whole” the discretion should not have been exercised in her favour.

Matter 3

1. In relation to matter 3, which is as follows:

   The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision,

   the applicant submitted that the Tribunal noted the hardship that the applicant and his family would face in case he was not able to stay in Australia.

Matter 4

1. In relation to matter 4, which is as follows:

   The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder,

   the applicant made the following submissions:

   a)the Tribunal put significant weight on the fact that the applicant did not re-enrol in his studies in 2014. The Tribunal considered that this fact allegedly suggested that the applicant was not committed to his studies. The Tribunal has not accepted the applicant's claim that he could not re-enrol for financial reasons because he could not access his funds in the Prabhu Bank as an explanation as to why the applicant could not re-enrol in 2014: CB 234 at [29];

   b)the applicant provided a letter from Prabhu Bank dated 31 October 2014: CB 188. The letter states that the applicant could access the funds by using a cheque book. However, for that option the applicant needed to be personally present at the bank. Finally, the letter states that Prabhu Bank does not participate in the program allowing clients overseas funds transfer on the issue of a No Objection Letter; and

   c)the Tribunal failed to consider whether the inability to access funds was outside of the applicant's control.

Matter 5

1. In relation to matter 5, which is as follows:

   The visa holder's past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department),

   the applicant submitted that:

   a)the Tribunal failed to consider that the applicant provided evidence, submissions and extensive information at the first possible opportunity;

   b)he was cooperative; and

   c)he voluntary admitted the Breach and expressed his deepest regret for it.

Matter 6

1. In relation to matter 6, which is as follows:

   Whether there are persons in Australia whose visas would, or may, be cancelled under s140,

   the applicant made the following submissions:

   a)the Tribunal failed to consider any circumstances relating to the Ms Mahato, whose visa was cancelled pursuant to s.140(1) of the Migration Act;

   b)the Tribunal has not considered any possible consequence for Ms Mahato because of her visa cancellation and removal from Australia; and

   c)Ms Mahato’s father (the applicant's Father-in-Law) was severely injured and almost incapacitated, but this circumstance was not considered in relation to the Ms Mahato specifically.

Matters 7-9

1. Matters 7-9 were conceded to not be relevant to the applicant.

Whether a weighting was apportioned to matters

1. The applicant submitted that:

   a)the PAM3 Guidelines requires that each matter must be apportioned a weighting;

   b)the Tribunal expressly put no weight on the applicant's claim that to access his funds he had to present himself personally at the bank: CB 234 at [27]. The applicant submits that such allocation of weight is not supported by the reasons as to why the Tribunal made this allocation; and

   c)in regards to all other matters, the Tribunal failed to apportion a weighting.

Generally – ground 1

1. In relation to ground 1, generally, the applicant submitted that:

   a)the Tribunal failed to consider entire relevant matters and not only some pieces of evidence: Li Shi Ping & Anor v Minister for Immigration, Local Government & Ethnic Affairs (“Li Shi Ping”) (1994) 35 ALD 225 where the Full Court of the Federal Court drew attention to the necessity not to confuse “taking into account relevant considerations with taking into account particular pieces of evidence”; and

   b)as there was a failure by the Tribunal to have regard to relevant matters, this constitutes a jurisdictional error.

Minister’s submissions

1. The Minister submitted that:

   a)the particulars in support of ground 1 contend that the Tribunal ignored and failed to have regard to relevant material as required by the PAM3 Guidelines observance of which is said to be compulsory;

   b)ground 1 fails for the reason that the Tribunal was not bound to consider and apply the PAM3 Guidelines;

   c)section 116 of the Migration Act relevantly provides:

   116 Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (b) its holder has not complied with a condition of the visa; or ...

   d)neither s.116 of the Migration Act, nor the Migration Regulations, set out any mandatory relevant considerations for the Tribunal in the exercise of its discretion under s.116(1) of the Migration Act: Kaur at [33] per Mansfield J;

   e)the PAM3 Guidelines are not a binding document, and are intended to be nothing more than procedural and policy guidance to officers of the Department applying the Migration Act and the Migration Regulations. Because the PAM3 Guidelines are not binding on decision-makers, they are not relevant considerations, in the sense of considerations that the Tribunal is bound to take into account. Any failure to have regard to the matters set out in the PAM3 Guidelines is not of itself a jurisdictional error: El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J;

   f)in any event, the Tribunal expressly said that it had regard to the matters raised by the applicant, and the relevant factors set out in the PAM3 Guidelines, before concluding that it should exercise its discretion to cancel the Student Visa: CB 232 at [17];

   g)the Tribunal referred to matters set out in the PAM3 Guidelines and made findings, to the extent that it considered necessary, in relation to those matters. In particular, it referred to:

   i)the purpose of the applicant's stay in Australia, namely to study: CB 233 at [19] and CB 234 at [29];

   ii)the extent of the applicant's compliance with his Student Visa conditions: CB 232 at [13]­[14] and CB 234 at [28];

   iii)the degree of hardship that may be caused to the applicant and his family: CB 234 at [28];

   iv)the circumstances in which the ground for cancellation arose: CB 232 at [18] and CB 233 at [25]; and

   v)the applicant's behaviour and whether he had been truthful, although in this case towards the Tribunal rather than the Department: CB 234 at [27]; and

   h)the applicant's submissions in relation to the matters set out in the PAM3 Guidelines, in effect, invite the Court to engage in impermissible merits review of the Tribunal Decision. This Court has no jurisdiction to engage in merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”) CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey, RD Nicholson and Selway JJ

Consideration – ground 1

1. There is not dispute as to the Breach. Arguably, the Breach was minor. Arguably, the outcome, namely the cancelation of the Student Visa, may be seen to be harsh. Another decision maker might not have made the same decision as did the Tribunal on this occasion. That, however, is not the test, thus, an administrative decision maker does not make a decision which is illogical or irrational if it is a decision which someone could have made on the same evidence or is merely one upon which reasonable minds may differ: Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ; SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [15] per Rares and [85] per McKerracher J. Plainly this is not a case of illogicality or irrationality in the Tribunal Decision making process. Further, it might be observed that jurisdictional error does not arise merely because an administrative decision might be seen to be harsh.

2. The applicant contends that a consideration of the PAM3 Guidelines was compulsory in the making of the Tribunal Decision. That, however, is not the law: the PAM3 Guidelines are not a “relevant consideration” in the sense that a failure to consider them amounts to jurisdictional error, or a failure to apply or to apply the PAM3 Guidelines incorrectly in itself amounts to a jurisdictional error: El Ess & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J. In Minister for Immigration and Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 19 AAR 266; (1994) 33 ALD 13, FCR at 208 per French and Drummond JJ the majority of a Full Court of the Federal Court referred to the Tribunal erring where it seeks to:

   …apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may have adduced misconstruction of the statue or misunderstanding of its purpose.

3. In this case there is nothing in the Tribunal Decision which would indicate that the Tribunal misconstrued the PAM3 Guidelines or misunderstood their purpose. Rather, the Tribunal indicated that it had regard to the PAM3 Guidelines at CB 232 at [17] where it said:

   There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has regard to matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

4. In having regard to the PAM3 Guidelines it was not necessary for the Tribunal to expressly refer to the PAM3 Guidelines, nor to refer to every piece of evidence and every contention that may be drawn from them, rather, provided the Tribunal considered those contentions and related them to the relevant criterion in the PAM3 Guidelines and proceeded on a correct understanding of them, that was sufficient: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [45]-[47] French, Sackville and Hely JJ; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 144; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ.

5. It can be assumed that to the extent that the Tribunal did not deal with a particular criterion in the PAM3 Guidelines, or part of the PAM3 Guidelines, that it was not relevant to is disposition of the applicant’s case on review; WAEE  at [45]-[47] per French, Sackville and Hely JJ.

6. The applicant’s reliance on Kaur is misplaced. The passage quoted from Kaur at [13] per Mansfield J is no more than an observation as to why the Tribunal did not exercise its discretion in a particular way. It is relevant to observe that the Federal Court then went on to specifically observe that:

   a)the Tribunal correctly identified the obligation to consider whether to cancel the visa there in issue in its discretion (in circumstances where there had been a breach of Condition 8105); and accepted that neither s.116 of the Migration Act nor the Migration Regulations set out any mandatory relevant considerations for the Tribunal to consider in the exercise of its discretion: Kaur at [33] per Mansfield J;

   b)that the Tribunal was not obliged to recite verbatim the matters in the PAM3 Guidelines, or at least those matters raised by an applicant in relation to the PAM3 Guidelines, and that in the Federal Court’s view the proper understanding of the Tribunal’s reasons in Kaur was that it did recite the matters is understood had been raised by the applicant in that case, but it was no means a comprehensive recital of those matters: Kaur at [36] per Mansfield J.

7. The true ratio of Kaur is to be found in further observations made by the Federal Court to the effect that:

   a)the Tribunal did not understand, or engage with, all the matters put forward as to why the discretion ought to be exercised in favour of the applicant: Kaur at [38] per Mansfield J;

   b)that the Tribunals’ level of appreciation of matters that were raised was such that its decision was lacking an evident and intelligible justification: Kaur at [44] per Mansfield J; and

   c)that there had been a failure to address a substantial part of the matters put forward in support of a contention that the discretion ought to be exercised favourably not to cancel a visa, namely, a failure of the kind dealt with by the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs  [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”), and the error in the decision made by the Tribunal in Kaur was that it did not consider matters put forward as reasons why the discretion ought to be exercised favourably not to cancel the visa, and that was a jurisdictional error: Kaur at [46]-[50] per Mansfield J.

8. Ground 1 does not allege a failure to consider matters put forward by the applicant in this case, but rather alleges a failure to apply the PAM3 Guidelines as compulsory discretionary considerations. For reasons set out above, the PAM3 Guidelines are not compulsory discretionary considerations. Furthermore, as also explained above, to the extent that the Tribunal thought various criterion in the PAM3 Guidelines were relevant to the disposition of the matter, it made findings in relation to those relevant criteria, albeit without necessarily spelling out it was so doing, and in circumstances were there was no obligation for it to spell out that it was so doing: Kaur at [43] and [46] per Mansfield J.

9. Approached in this way, the applicant’s submissions in this case can simply be seen as a means of re-agitating the merits of the case before the Tribunal within a framework determined by reference of the PAM3 Guidelines. It is, therefore, no more than an attempt to engage the Court in crossing the impermissible line between merits review and judiciary revivew:  Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ; Zentai v Honourable Brendan O’Connor(No 3) (2010) FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293: (2010) 116 ALD 476 at [367] per McKerracher J.

10. In the above circumstances, ground 1 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

Ground 2 - no evidence - no commitment to studies

1. Ground 2 of the Amended Judicial Review Application states:

   There was no evidence or other material to justify the making of decision.

   Particulars

   The Tribunal made the central adverse finding that the Applicant had no commitment to studies. The Tribunal based this finding on the fact that the Applicant did not re-enrol to his studies in 2014. The Tribunal has not accepted the Applicant’s claim that he could not re-enrol for financial reasons because he could not access his funds in the Prabhu bank (paragraph 29 of the Decision).

   The Tribunal put significant weight on the information received from Nepal Rastra Bank (National Bank of Nepal) that all banks in Nepal are licensed by the National Bank to transfer money overseas for education to any country.

   The information from the National Bank of Nepal does not challenges the credibility of either the letters from Prabhu bank or the Applicant’s claim that he was denied to access his funds.

   Therefore, the Tribunal’s finding that the Applicants ‘non-enrolment’ in 2014 is not indicative of a commitment to his studies’ is affected by jurisdictional error as not supported by any evidence or material.

Applicant’s submissions

1. In relation to ground 2 the applicant submitted that:

   a)there was no evidence or other material to justify the making of the Tribunal Decision;

   b)the Tribunal made the central adverse finding that the applicant had no commitment to studies. The Tribunal based this finding on the fact that the applicant did not re-enrol in his studies in 2014. The Tribunal has not accepted the applicant's claim that he could not re-enrol for financial reasons because he could not access his funds in the Prabhu Bank: CB 234 at [29];

   c)he had provided a letter from Prabhu Bank dated 31 October 2014: CB 188. The letter states that the applicant could access the funds by using a cheque book. However, for that option the applicant needed to be personally present at the bank. Finally, the letter states that Prabhu Bank does not participate in the program allowing clients overseas funds transfer on the issue of a No Objection Letter;

   d)he was on a Bridging E visa which prevented him from travelling to Nepal. Therefore, the applicant had no possible access to  his funds in the Prabhu Bank account: CB 178;

   e)the Tribunal put significant weight on the information received from Nepal Rastra Bank (National Bank of Nepal) that all banks in Nepal are licensed by the National Bank to transfer money overseas for education to any country: CB 233 at [21];

   f)in response to that information, the applicant provided another letter from Prabhu Bank dated 12 February 2015: CB 217, which refers to internal policy in the Kist Bank - Deposit Manual (2010). The letter states that the applicant was denied access to his funds based on the Branch Manager's discretion that he be present in Nepal at the time of making a debit transaction;

   g)the Tribunal did not accept the claims made in either of the two letters from Prabhu Bank. Based on that, the Tribunal concluded that the applicant has not given truthful evidence: CB 234 at [27]. We submit that the Tribunal made a jurisdictional error by making that conclusion because it is not justified by any evidence or material;

   h)the information from the National Bank of Nepal is that “there are no restrictions imposed by the national bank to transfer money overseas for education to any country ...”. The letter from Prabhu Bank states that the applicant was denied access to his funds based on the internal policy in the Kist Bank - Deposit Manual (2010) and the Branch Manager's discretion that he be present in Nepal at the time of making a debit transaction;

   i)there is no contradiction between the information from the National Bank of Nepal and the information from the Prabhu Bank or the applicant's claim that he was denied to access his funds; and

   j)the Tribunal’s finding that the applicant’s “non-enrolment in 2014 is not indicative of a commitment to his studies” is affected by jurisdictional error, and was not supported by any evidence or material.

Minister’s submissions

1. The Minister submitted that:

   a)in the particulars in support of this ground, the applicant contends that the Tribunal made the central adverse finding that the applicant had no commitment to studies, based on the fact that the applicant did not re-enrol in 2014;

   b)the Tribunal made no such finding but considered that the applicant's non-enrolment in 2014 was “not indicative of a commitment to his studies”: CB 234 at [29]. That statement is patently correct and does not disclose any jurisdictional error. It cannot support a contention that there was no evidence or other material to justify the making of the decision;

   c)the applicant's submissions contend, in effect, that the Tribunal should have accepted the applicant's claim, supported by the letters from the Prabhu Bank, that he could not re-enrol for financial reasons because he could not access his funds in the bank. Once again the applicant’s submissions invite the Court to engage in impermissible merits review; and

   d)in any event, the Tribunal was not obliged to accept the applicant's claims and evidence and it was open to the Tribunal not to accept the information in the letters from the Prabhu Bank. Contrary to the applicant's submissions the evidence from the National Bank of Nepal: CB 210, did not contradict the claim in the first letter from the Prabhu Bank: CB 188; that the Prabhu Bank did not participate in a program allowing the transfer of funds overseas. Based on this inconsistency and its concerns with the applicant's evidence, it was open to the Tribunal to consider that the claims made by the Prabhu Bank were “not reliable”: CB 234 at [27] and to not accept the applicant's claim that he could not study for financial reasons: CB 234 at [29].

1. As a “no evidence” ground, the applicant, in order to succeed, must show that there was no evidence at all upon which the Tribunal Decision could have been based. The standard of proof required to sustain a finding of no evidence is high; where the evidence in support of a finding is “slight”. That is sufficient to defeat a challenge to the finding: VAS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It has been further stated that a “no evidence” challenge will fail if “even a skerrick of evidence appears” to substantiate the relevant finding. MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J. As the High Court said in Australian Broadcasting Corporation v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 5 BR137, CLR at 356 per Mason CJ:

   So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

2. In this case, there was not just slight, but adequate, evidence for the Tribunal’s conclusion that the claims made by the Prabhu Bank were “not reliable”: CB 234 at [27] because of the information provided by the National Bank of Nepal which contradicted the information initially supplied by the Prabhu Bank. There was information in relation to the evidence obtained from the National Bank of Nepal which indicated that the information from the Prabhu Bank may not have been accurate, and that there was in fact no restriction on any bank’s transfer of money from Nepal to an overseas location. On this basis, the “no evidence” ground cannot succeed. Further, the Tribunal was not required to accept uncritically any and all claims made by the applicant: Minister for Immigration & Ethnic Affairs v Guo & Anor [1997] FCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J, and the Tribunal was entitled to accept, reject, or give such weight to the evidence before it as it thought appropriate in all of the circumstances, and matters of weight are, generally speaking, for the Tribunal to determine: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In all the circumstances, the Tribunal had a basis for its concern that the applicant was not giving truthful evidence: CB 234 at [27], and was entitled to place no weight on the claims made that the applicant had to be personally present at the bank in Nepal to access his funds.

3. In relation to ground 2 it was therefore open on the evidence and materials before the Tribunal to make the decision it did to affirm the Delegate’s Decision to cancel the applicant’s Student Visa. Once again, what the applicant seeks to have the Court do on judicial review is engage in impermissible merits review contrary to long standing principle: see Wu Shan Liang and NADR.

4. In the above circumstances, ground 2 is not made out, and does not establish jurisdictional error in the Tribunal Decision

Ground 3 - denial of procedural fairness - failure to address claims

1. Ground 3 of the Amended Judicial Review Application states:

   There was a denial of procedural fairness to the Applicant by failing to address a substantial part of the matters put forward by the Applicant in support of his claim that, despite the breach of Condition 8105, the discretion under s 116 should be exercised in his favour not to cancel the visa. Therefore, the Applicant was denied procedural fairness.

   Particulars

   The breach of visa condition occurred only once in about six years and relates to specific cultural, family uniting event. The Tribunal failed to consider this claim put by the Applicant and, therefore, he was denied procedural fairness.

   The Tribunal failed to address the Applicant’s claim as to what are his plans upon return to Nepal should he be allowed to stay in Australia and finish his studies.

   The Tribunal failed to consider evidence that the Applicant has re-enrolled to the course in Commercial Cookery and his studies commenced from 19 January 2015.

Applicant’s submissions

1. In relation to ground 3 the applicant submitted that:

   a)the applicant was denied procedural fairness because the Tribunal failed to address a substantial part of the applicant’s matters put forward in support of the applicant’s claim that, despite the Breach, the discretion under s.116 of the Migration Act should be exercised in his favour not to cancel the Student Visa; and

   b)the applicant was therefore denied procedural fairness: Htun v Minister for Immigration and Multicultural Affairs (“Htun”) [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 and note that the Tribunal is obliged under s.414 of the Migration Act to consider all the applicants claims, and the Tribunal Decision, therefore failed to complete the exercise of the jurisdiction embarked on;

   c)Dranichnikov  provides that a failure to address a substantial part of the matters put forward by the applicant in support of his contentions was a failure to accord procedural fairness. In  Dranichnikov at [95] per Hayne J it was that said:

   I agree that, for the reasons given by Gummow and Callinan JJ, the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection. I also agree that certiorari, mandamus and prohibition should issue and that the first respondent should pay the applicant's costs of that application.

   d)in Plaintiff M61/2010E v Commonwealth of Australia [2010] FCA 41; (2010) 243 CLR 319, (2010) 85 ALJR 133; (2010) 272 ALR 14, (2010) 123 ALD 244 it was held that a failure to consider a submission, or to deal with a claim, may amount to a breach of procedural fairness with the High Court observing at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell CK as follows::

   Second, failing to address one of the claimed bases for the plaintiff s fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness.

   e)the applicant's claim that he had to “overwork” to provide financial support to his Father-in Law who was injured was considered by the Tribunal in the context that the applicant had significant funds in the Prabhu Bank which he could access prior to Student Visa cancellation: CB 233 at [24];

   f)the applicant's actual claim is the following. Ms Mahato’s family was surviving on their small savings due to the fact that the Father-in-Law sustained life-threatening injuries and was incapacitated and unable to work. The applicant and Ms Mahato always worked limited hours and complied with Student Visa conditions. The applicant overworked during one fortnight to be able to send extra money to Ms Mahato’s family during festive season so that “they could put food on their plates”: CB 105;

   g)the applicant submits that the Breach occurred during festive months in Nepal. It was of particular physiological and cultural significance for the applicant to support Ms Mahato’s family at that moment when the family was recovering from the tragedy that occurred to the applicant's Father-in-Law;

   h)it is of core importance that the Breach was the only one in about six years and relates to a specific cultural, family uniting event. The Tribunal failed to consider this claim put by the applicant and, therefore, he was denied procedural fairness;

   i)the Tribunal came to the conclusion that the applicant was not committed to his studies, but the Tribunal failed to address the applicant's claim as to what are his plans upon return to Nepal should he be allowed to stay in Australia and finish his studies. The applicant submitted that he was going to start a tourist business in Nepal using proceeds from his aged parents' assets. That was the applicant's reason for studying a course in hospitality, following courses in business: CB 178;

   j)the Tribunal concluded that the applicant made no progress in his studies through 2014: CB 234 at [29]. However, the Tribunal failed to consider evidence that the applicant had re-enrolled in the course in Commercial Cookery and his studies commenced from 19 January 2015: CB 218; and

   k)the Tribunal failed to consider the applicant's claims and evidence in the context of considering his commitment to studies, and this constituted a failure to provide procedural fairness to the applicant.

Minister’s submissions

1. The Minister submitted that:

   a)as this was a case to which s.357A of the Migration Act applied, the Tribunal was not required to accord the applicant common law procedural fairness: WZASU v Minister for Immigration & Anor (No. 2) [2014] FCCA 96 at [29] per Judge Lucev. The applicant was entitled only to the rights afforded to him under Part 5, of Division 5 of the Migration Act. No breach of those provisions has been identified by the applicant and the Tribunal did not fail to comply with any of those provisions;

   b)in any event, the Tribunal did not fail to consider and address the substance of the applicant's claims. In particular, the Tribunal considered and addressed:

   i)the circumstances of the Breach: CB 234 at [28];

   ii)the applicant's plans upon return to Nepal should he be allowed to finish his studies in Australia: CB 234 at [28]; and

   iii)the applicant's claim that he had re-enrolled, after the Tribunal hearing, in a Certificate III course in commercial cookery: CB 233 at [23];

   c)although it did not address all the detail of the matters raised by the applicant (for example, that the applicant intended to start a tourist business in Nepal using proceeds from his aged parents' assets), the Tribunal's failure to do so does not demonstrate jurisdictional error;

   d)the Tribunal is not bound to refer to every item of material relied upon by an applicant: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [65] per McHugh J; WAEE at [46] per French, Sackville and Hely JJ; and

   e)further, a failure to take into account a particular piece of evidence does not give rise to a jurisdictional error: WZAND v Minister for Immigration & Anor [2009] FMCA 26 at [57] per Lucev FM, referring to Li Shi Ping at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed).

   f)In the circumstances, there was no jurisdictional error by the Tribunal by reason of any failure to address any part of the applicant's claims.

Consideration of Ground 3

1. It is well established that failure to consider an integer of the applicant’s claim will amount to jurisdictional error where that claim is a mandatorily relevant criterion under the Migration Act; Dranichnikov at [24]-[25] per Gummow, and Callinan JJ; Htun at [42] per Allsop J. The Tribunal is also required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole: WAEE at [47] per French, Sackville and Hely JJ.

2. With respect to the applicant’s “overwork” claim, and the assertion that the Tribunal failed to consider the circumstances in which the single instance of over working occurred, the Court is not persuaded that the Tribunal failed to consider, in context, the significance of that claim as it related to the applicant’s familial circumstances. The Tribunal noted that the Father-in-Law had had an accident and was hospitalised and did not have enough money to pay the hospital bill, and that the Tribunal had been provided with a photo of the Father-in-Law showing him injured: CB 232 at [18]. The Tribunal noted the overwork claim again in the context of the applicant’s financial support to his Father-in-Law, but not otherwise in a specific familial context at CB 233 at [24]. The Tribunal referred to the hardship that the families of both the applicant and Ms Mahato might suffer if the applicant had his Student Visa cancelled, and so addressed the long term implications of the Student Visa cancellation, noting that if the applicant had to return to Nepal he claimed he would not be able to get a job and that his funds would dissipate quickly causing tremendous financial hardship: CB 234 at [28]. It was however a specific integer of the applicant’s claim of hardship that he overworked to enable his wife’s family to “put food on their plates”: CB 105, during the Nepali Festive Season when other people would be enjoying themselves: CB 105. Plainly, the Tribunal did not address this claim. It was, however, a claim which would not have succeeded in any event because of the Tribunal’s findings that the applicant had access to funds in Nepal: CB 233-234 at [26]-[29]. Thus, there is a finding of significant greater generality with respect to the availability of funds to the applicant in Nepal which negates the applicant’s submission in relation to this integer of his claim: WAEE at [47] per French, Sackville and Hely JJ.

3. In relation to the issue of the applicant’s commitment to studies, the Tribunal adverted to the fact that the applicant had given evidence that following the Tribunal hearing he had re-enrolled in studies and is participating in a Certificate III in Commercial Cookery. The Tribunal has merely stated this fact, but done no more than that. In considering the applicant’s studies the Tribunal found that the applicant had “made no progress on his studies throughout 2014 even though he was able to study under the Bridging visa”: CB 234 at [29], noting the applicant’s claim as to financial restrictions. Whilst it is not immediately apparent how it is how the applicant could not study because of financial restrictions, but could study during 2015, that is not the issue presented by this integer of the applicant’s claim to be genuinely committed to studies in Australia. In this regard, the Tribunal did not consider the applicant’s prior study history, but more importantly failed to consider that integer of the claim related to the applicant’s re-enrolment in studies in 2015 as evidence of his genuine commitment to studies in Australia. In that regard, there was a letter from the educational institute in which the applicant was enrolled, indicating that he was currently enrolled as a full time student in Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery, and that studies had commenced 19 January 2015 and were due to finish on 17 June 2016, and that his attendance rate was 96 per cent: CB 220, and that so far the applicant was “making satisfactory academic progress”: CB 218. In the latter regard there was also a Statement of Attainment attached the 11 February 2015 letter indicating that the applicant had fulfilled the requirements of six units which formed competencies as part of the Certificate III in Commercial Cookery since he had enrolled on 19 January 2015. The Court notes that the applicant’s financial position is not relevant to a consideration of the issue of whether the applicant’s re-enrolment in studies indicated a commitment to those studies; the Tribunal has already found that the applicant’s financial position was such to enable him to maintain ongoing studies, and, in circumstances where the applicant had then re-enrolled, and advised the Tribunal of this. The claim with respect to the further studies was specifically made to the Tribunal in an email dated 13 February 2015 in which it was said that the applicant had been enrolled, had paid his fees and was making steady progress in the current course whilst still awaiting the outcome of the Tribunal Review: CB 215.

4. The Tribunal simply failed to engage with that integer of the claim of the applicant to be genuinely committed to ongoing studies in Australia. Although the fact of his re-enrolment and participation in Certificate III in Commercial Cookery is set out as a matter of fact, it is not the case that the Tribunal has “considered and addressed” the substance of the effect of the further studies. Thus, apart from mentioning the fact of the re-enrolment, the Tribunal deals with it no further, and makes no finding with respect to it, either in the context of the genuineness of the applicant’s commitment to his studies, or otherwise. Thus, it is mentioned, but nothing follows in terms of any active or intellectual process directed at this integer of the applicant’s claim: Lafu at [45]-[46] per Lindgren, Rares and Foster JJ.

5. In the above circumstances, the applicant has established jurisdictional error in the Tribunal Decision in relation to that part of ground 3 concerning the applicant’s re-enrolment in studies as part of the claim to be genuinely committed to ongoing studies in Australia.

Conclusion and orders

1. The Court has concluded that Tribunal is affected by jurisdictional error as set out at [47] above. It follows that appropriate prerogative relief ought to be granted to the applicant. The Court notes that the Minister made a submission, late at hearing, that relief would be futile because the Student Visa would have expired in any event. That is a matter which can be addressed and determined by the Tribunal on remittal.

2. The Court will hear the parties as to costs.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 23 September 2019