Delpachitra v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 570
•24 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Delpachitra v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 570
File number: MLG 2291 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 24 April 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s student visa – whether the Tribunal asked itself the wrong question – whether the Tribunal constructively failed to consider relevant evidence and submissions – no jurisdictional error – application dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 116, 476, 477
Migration Regulations 1994 (Cth) Sch 8 condition 8202
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465; [2000] FCA 1889
Australian Securities and Investments Commission (ASIC) v Hochtief Aktiengesellschaft (2016) 117 ACSR 589; [2016] FCA 1489
Fleming v Hutchinson (1991) 66 ALJR 211
Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486; [2017] FCAFC 172
Kaur v Minister for Immigration and Border Protection (2014) 144 ALD 292; [2014] FCA 1046
R v Hallcroft (2016) 126 SASR 415; [2016] SASCFC 137
Division: Division 2 General Federal Law Number of paragraphs: 89 Date of hearing: 23 January 2025 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Metron Lawyers Counsel for the First Respondent: Mr N Dour Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
MLG 2291 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAVEEN MARIOUS DELPACHITRA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
24 APRIL 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant held a student visa in Australia which was cancelled by a delegate of the Minister because the applicant failed to comply with a condition of the visa by not being enrolled in a course of study. The Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on review. The applicant now seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant asserts that the Tribunal decision is affected by jurisdictional error because the Tribunal:
(a)asked itself the wrong question in finding that the reason the applicant ceased to be enrolled in a registered course was ‘serious’ in isolation from the reason for the cessation, namely, the applicant’s financial hardship; and
(b)failed or constructively failed to consider the applicant’s evidence and submission in relation to a discretionary reason not to cancel the visa, namely, that he only had four more subjects to complete, and in so doing, denied the applicant procedural fairness or failed to exercise its jurisdiction.
For the reasons explained below, I have found that the applicant has not established that the Tribunal made a jurisdictional error. The judicial review application is therefore dismissed.
BACKGROUND AND VISA CANCELLATION
The applicant arrived in Australia in October 2011 as the holder of a student visa. The applicant completed a Diploma of Hospitality in February 2014 and enrolled in a Bachelor of Hospitality Management in August 2015.
The applicant was granted a further student visa on 28 September 2016 for the purposes of completing his Bachelor of Hospitality Management.
On 7 June 2018 the Minister’s Department sent to the applicant a notice of intention to consider cancellation of his visa (NOICC). The NOICC advised the applicant that there appeared to be a ground for cancellation of his visa under s 116(1)(b) of the Migration Act, namely, that he had not complied with a condition of the visa. The NOICC advised that it appeared the applicant may not have complied with condition 8202 in Sch 8 to the Migration Regulations 1994 (Cth) (Regulations), specifically paragraph 8202(2)(a), which required the applicant to be enrolled in a full-time registered course. The applicant was given an opportunity to respond to the NOICC in writing within five working days after he was taken to have received the NOICC.
The applicant appointed a registered migration agent as his representative, who provided a response to the NOICC on 15 June 2018.
On 27 July 2018 a delegate of the Minister cancelled the applicant’s visa. The delegate was satisfied that there was a ground for cancelling the applicant’s visa, namely that he did not meet the requirements of condition 8202(2)(a) because he was not enrolled in a full-time registered course between 23 August 2017 and 14 June 2018. The delegate was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling and decided to cancel the visa accordingly.
On 1 August 2018 the applicant applied to the Tribunal for merits review of the delegate’s decision. The applicant was represented by the same migration agent before the Tribunal.
The applicant attended a hearing before the Tribunal on 14 June 2019 to give evidence and present arguments in relation to the issues arising in the review.
The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa on 22 June 2019.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether the applicant had breached condition 8202 in Sch 8 to the Regulations, noting that if the condition was breached, the visa may be cancelled.
Based on information from the Provider Registration and International Student Management System (PRISMS) which indicated that the applicant had not been enrolled in a registered course from 23 August 2017 to 14 June 2018, and which the applicant confirmed was correct, the Tribunal found that the applicant had not complied with condition 8202(2)(a) for nearly 10 months before the visa was cancelled.
The Tribunal then considered whether the applicant’s visa should be cancelled, noting that there were no matters specified in the Migration Act or the Regulations that must be considered in the exercise of its discretion. The Tribunal had regard to the circumstances of the case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
After summarising the applicant’s evidence at the hearing, the Tribunal made the following findings in relation to matters in the PAM3 guidelines.
The purpose of the visa holder’s travel and stay in Australia, whether the holder has a compelling need to travel to or remain in Australia: The Tribunal recorded that the applicant indicated that he wished to remain in Australia to complete his studies and claimed that if his visa were cancelled his future would be ruined because he will have nothing. The Tribunal gave minimal weight to these reasons as the applicant could reapply to study after the exclusion period. The Tribunal appreciated the significance of the student visa for the applicant and his family but considered that it did not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of monetary funds.
The extent of compliance with visa conditions: The Tribunal recorded that there was nothing before it to indicate that the applicant had not complied with all other conditions of his visa and gave this some weight in favour of the applicant but remained mindful that all visa holders are expected to adhere to the conditions of their visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship): The Tribunal recorded that the applicant explained that his future would be ruined if he was not able to study in Australia, and that his Sri Lankan family would experience disappointment and his relationship with his two brothers and their families in Australia may also be affected. The Tribunal accepted that the cancellation of a visa is disappointing, that a significant amount of money is invested in a person in order to set them up to study in another country, and that hardship is felt by family members who may also feel let down and disappointed. The Tribunal accepted that a cancellation may contribute to the emotional pressure and stress that the applicant may already have been facing. However, the Tribunal was also mindful of the seriousness of breaching a visa condition such as non-enrolment. The Tribunal appreciated the hardship the applicant, his brothers and their families, and the applicant’s Sri Lankan parents may face regarding a cancelled visa but found that it did not outweigh the breach and gave these reasons limited weight in its consideration.
Circumstances in which the ground of cancellation arose: The Tribunal acknowledged that the applicant stated that he wished to study in Australia. The Tribunal gave some weight to the applicant’s claim that he experienced financial difficulties and was remorseful for his inability to study in Australia. The Tribunal noted that the applicant’s brothers were now able to financially assist the applicant after the visa was cancelled. The Tribunal appreciated that there would have been financial pressure and stress for the applicant but noted that student visas are granted for the purposes of studying and achieving a qualification. The Tribunal gave some weight to the circumstances in which the breach occurred but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.
Past and present behaviour of the visa holder towards the Department: The Tribunal noted that there was nothing before it to indicate any adverse conduct by the applicant to the Department. The Tribunal gave some weight in favour of the applicant.
Whether there would be consequential cancellations under s 140: The Tribunal noted that this was not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention: The Tribunal appreciated that the applicant was remorseful for his inability to study in Australia and acknowledged that his brothers are able to assist him now, but it gave these reasons limited weight in its considerations as they did not outweigh the breach. The Tribunal acknowledged the applicant would be subject to a three-year exclusion period but gave this minimal weight in favour of the applicant as it was a natural consequence of cancellation.
Australian’s international obligations: The Tribunal noted that there was nothing before it to suggest that the cancellation of the applicant’s visa would breach any international obligations. The Tribunal placed no weight on this in favour of the applicant.
Any other relevant matters: The Tribunal noted that this was not relevant to the applicant.
Considering the circumstances as a whole, the Tribunal concluded that the applicant’s student visa should be cancelled.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 18 July 2019. The application was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 15 October 2024 which contains the following grounds:
1.The Administrative Appeals Tribunal asked itself the wrong question in finding that the reason why the Applicant had ceased to be enrolled in a registered course was “serious” wrongly in isolation from the reason for the cessation, namely the Applicant’s financial hardship.
2.The Administrative Appeals Tribunal failed or constructively failed to consider the evidence and submissions that a discretionary reason not to cancel the visa was that the Applicant only had four more subjects to complete, and/or that the Tribunal denied the Applicant procedural fairness or failed to exercise its jurisdiction in so doing.
The evidence before the Court comprises:
(a)a court book filed on behalf of the Minister on 21 March 2022 (exhibit 1); and
(b)an affidavit affirmed by Rohan Ratnayake and filed on behalf of the applicant on 16 October 2024, annexing a copy of a transcript of the Tribunal hearing.
GROUND 1
By this ground, the applicant asserts that the Tribunal asked itself the wrong question in finding that the reason he ceased to be enrolled in a registered course of study, and thereby breached a condition on his visa, was serious, in isolation from the reason he ceased being enrolled, namely, his financial hardship.
The applicant’s submissions
The applicant submitted that the Tribunal accepted that he dropped out of his course because he could no longer afford it but characterised the breach of his condition to remain enrolled in a registered course of study as ‘serious’ and, in so doing, regarded the breach as ‘serious’ in and of itself, separating out the reason for the breach. The applicant submitted that this could be seen in the following parts of the Tribunal’s reasons:
(a)[34], under a heading dealing with the degree of hardship, where the Tribunal referred to ‘the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as no-enrolment’, and that the financial difficulty ‘does not outweigh the breach’; and
(b)[38], under the heading ‘Circumstances in which ground of cancellation arose’, where the Tribunal referred to the applicant being ‘remorseful for his inability to study’ because of financial difficulties but concluded that this reason was not given ‘sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach’.
The applicant submitted that the following parts of the Tribunal’s reasons also show that the Tribunal treated the reason for non-compliance as separate from the non-compliance itself:
(a)[28], under a heading relating to the applicant’s purpose for travel and stay in Australia, where the Tribunal said that the applicant’s desire to finish the remaining subjects to complete his degree ‘does not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of monetary funds’; and
(b)[42], in addressing the mandatory legal consequences of cancellation, where the Tribunal referred to the applicant being ‘remorseful for his inability to study’ due to financial difficulty but finding that his improved financial situation ‘does not outweigh the breach’.
The applicant submitted that this shows that his financial difficulty was woven throughout the Tribunal’s reasons and was treated as not bearing on the characterisation of the non-compliance as serious, but instead, independently of it. The applicant submitted that it was artificial to separate out the reason for the breach for the characterisation of it as serious. In characterising a particular breach as serious or not serious, one must necessarily understand why the breach occurred.
The applicant submitted that by artificially and wrongly treating his non-compliance as ‘serious’ in isolation from the reason for it, the Tribunal fundamentally misunderstood its task. The ordinary meaning of the word ‘serious’ meant that no part of the s 116 task involved or permitted consideration of whether the non-compliance was ‘serious’ in isolation from the reason for it. The applicant submitted that it matters not that the Tribunal acknowledged the applicant’s financial circumstances and the very point is that the Tribunal sought to split out the financial circumstances so as to divine an underlying non-compliance that it considered to be serious. In this case, in which the Tribunal weighed competing considerations, the misdirection is material to the result.
In his oral submissions, Counsel for the applicant submitted that the factual reason for the breach was correctly identified by the Tribunal, but the factual reason for the breach is directly relevant to whether to exercise the discretion to cancel the visa, or put another way, the factual reason for the breach is directly relevant to characterising the breach as serious or less serious. Counsel for the applicant submitted that the correct exercise of the Tribunal’s discretion under s 116 of the Migration Act proceeds on the basis that the Tribunal was required to understand the reason for the non-compliance, because that reason bears on the exercise of the discretion. Counsel for the applicant submitted that the Tribunal was required to understand the breaches, as distinct from the countervailing circumstances, on their individual merits and not proceed on the basis that all breaches are the same. Counsel for the applicant submitted that the Tribunal asked itself the wrong question because it did not appreciate that not all breaches should be regarded as serious.
Counsel for the applicant submitted that the Minister’s written submissions (summarised below) to the effect that the decision was not unreasonable, irrational or illogical are irrelevant because the applicant does not advance the ground on the basis of unreasonableness, irrationality or illogicality. Counsel for the applicant did not disagree with the Minister’s summary of the matters taken into account by the Tribunal but submitted that that missed the point of the argument, because those matters do not engage with the Tribunal’s characterisation of the breach as serious.
In response to the Minister’s submission referring to the 10-month period of non-enrolment, the applicant submitted that this was not referred to in the Tribunal’s reasons at [34] or [38], where the Tribunal uses the word ‘serious’, and seeks to give the reasons more content than what the text on a fair reading permits.
In his reply submissions, Counsel for the applicant submitted that the Minister’s submission that the Tribunal weighed the extent of the non-compliance, which it used as a short form for the seriousness of the breach, cannot be reconciled with the plain text of the Tribunal’s reasons at [34]. Counsel for the applicant submitted that the Tribunal’s reasons must be read as a coherent whole and you cannot give the term ‘serious’ a different meaning in different places in the Tribunal’s reasons.
The Minister’s submissions
The Minister submitted that although the ground alleges that the Tribunal asked itself the wrong question, the applicant did not, in his amended application or written submissions, identify what wrong question the Tribunal asked itself. Rather, the applicant attacks the Tribunal’s mode of reasoning by submitting that the Tribunal assessed and weighed the severity of the breach in isolation from the reason for it and thereby fundamentally misunderstood its task. The Minister submitted that these submissions are contradictory and ought to be rejected.
The Minister submitted that the Tribunal asked itself the correct question, noting that:
(a)condition 8202 in Sch 8 to the Migration Regulations requires that the applicant, amongst other things, be enrolled in a registered course or, in a limited number of cases, a full time course of study or training;
(b)there is no dispute that the applicant had not been enrolled in a registered course from 23 August 2017 to 14 June 2018 and, accordingly, had not complied with condition 8202(2)(a) for 10 months;
(c)the Tribunal asked itself, after having found that the applicant had not complied with a condition of the visa, whether it ought to exercise its discretion to cancel the visa.
The Minister addressed whether the Tribunal acted unreasonably in the exercise of its discretion in circumstances where he considered the gravamen of the applicant’s submission to be that the Tribunal failed to place sufficient weight on the applicant’s financial circumstances by splitting the financial circumstances so as to divine an underlying non-compliance that can be considered to be ‘serious’. The Minister submitted that the applicant’s submissions seek to cast aside the Tribunal’s individual and cumulative assessment of the applicant’s circumstances by taking a conclusory statement about its description of the extent of non-compliance with condition 8202(2)(a).
The Minister submitted that the Tribunal considered the 10-month duration of not being enrolled in a course was a ‘serious’ breach of condition 8202(a) and that justification was open, evident and intelligible in the written reasons. The Minister submitted that the overall conclusion not to exercise the discretion was a decision made only after an individual and cumulative assessment of the issues put forward by the applicant and was a decision that cannot be described as one that no reasonable decision-maker could arrive at.
The Minister submitted that the Tribunal’s individual and cumulative assessment was comprehensive and included consideration of the following matters, which show that the Tribunal did not ask itself the wrong question in weighing various considerations in the exercise of its discretion:
(a)the duration of non-compliance, noting that the applicant’s evidence was that he was enrolled in the course in 2015, completed seven subjects between 2015 and 2016 and had four subjects remaining, meaning that the applicant was therefore enrolled in the course for a year and was not enrolled for almost 10 months;
(b)the applicant’s financial position at the time, being that he could not afford the fees as he was earning $450 per week and his family could not assist him, and it was only after the applicant’s visa was cancelled that his family was willing to assist him with paying for the course;
(c)the purpose of the applicant’s travel and stay, including that the education would set the applicant up for a better life and how the course would impact his future;
(d)that the applicant had complied with his visa conditions aside from condition 8202(a);
(e)the applicant’s submissions in relation to the emotional toll and hardship on him and his family were the visa to be cancelled;
(f)the applicant’s positive behaviour towards the department; and
(g)the legal consequences of cancellation, the applicant’s submissions of regret, that the applicant is now in a position to be assisted by his brothers and that the effect of the Tribunal’s decision would be to raise a three-year exclusion period.
The Minister submitted that the Tribunal did not cancel the applicant’s visa because it considered, in isolation from the reasons for the applicant’s financial position, that the non-enrolment for 10 months was a serious breach of condition 8202(a). The Tribunal expressly stated that it considered ‘[i]ndividually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred’ and expressly gave ‘some weight to his claim that he experienced financial difficulties and was now remorseful for his inability to study in Australia’. The Minister submitted that the Tribunal considered the reasons for the applicant’s financial circumstances and not merely the non-compliance with condition 8202(a).
In response to the specific paragraphs of the Tribunal decision relied on by the applicant, the Minister submitted that:
(a)in relation to the applicant’s reliance on [38] of the Tribunal’s reasons:
(i)the Tribunal’s conclusion at [38] that the matters it referred to, including the financial considerations, did not outweigh the extent of non-compliance reveals no error;
(ii)the applicant’s submissions place more weight on a conclusory sentence at [38] of the Tribunal’s reasons than it can reasonably bear, and that there is an evident and intellectual justification for the exercise of the discretion when the paragraph is read as a whole; and
(iii)it was consistent with the ordinary meaning of the word ‘serious’ for the Tribunal to describe a 10-month failure to comply with condition 8202(a) as serious;
(b)in relation to the applicant’s reliance on [34] of the Tribunal’s reasons:
(i)the Tribunal in that paragraph was referring to the seriousness of obtaining a visa, not the severity of non-compliance with the visa condition;
(ii)there is no evaluation of the breach in that sentence and there can be no error in the Tribunal identifying compliance with legal requirements of the visa as important or identifying obtaining a visa, which grants entry and permission to stay in Australia, as a ‘serious’ matter;
(c)in relation to the applicant’s reliance on [28] of the Tribunal’s reasons:
(i)the applicant relies on a conclusory sentence of the Tribunal’s overall assessment of the issue of the purpose of the applicant’s travel and stay in Australia and any compelling needs of the applicant;
(ii)the Tribunal considered these matters and appreciated the significance of them, but found they did not outweigh the financial considerations that went to satisfying the visa conditions; and
(iii)the Tribunal gave minimal weight to some aspects of the submissions because the applicant could reapply to study after the exclusion period; and
(d)in relation to the applicant’s reliance on [42] of the Tribunal’s reasons, there is no error in the Tribunal considering, in the exercise of its discretion, the applicant’s stated remorse at the year he spent not being able to study and the effect of the legal consequence of the three year exclusion period, but ultimately finding that these matters did not outweigh the exercise of discretion to cancel the visa.
In his oral submissions, Counsel for the Minister submitted that, in considering the substance of the ground that the Tribunal asked itself the wrong question because it concluded that the breach was in and of itself serious, it is first necessary to identify what the breach was and where it was addressed in the Tribunal’s reasons. The Tribunal identified the breach at [10] of its reasons as a breach of condition 8202(a) for approximately 10 months before the visa was cancelled.
Counsel for the Minister submitted that how the Tribunal characterises the breach is a question of fact and degree, with there being no magic in the label applied, and it is a question for the Tribunal to decide on the merits. However, the Tribunal’s characterisation of the breach as serious was not the prevailing matter the Tribunal considered in its assessment, and the Tribunal made clear that all of the issues put forward by the applicant were considered individually and cumulatively. Counsel for the Minister submitted that the Tribunal weighed the extent of the non-compliance with the condition, which it used in a short form as the seriousness of the breach, against other factors, including the reason for the breach, the financial hardship of the applicant.
Counsel for the Minister submitted that the applicant needs to show that either no reasonable decision-maker would have concluded that a 10-month breach of a 36-month course can be described as serious, or that there was no intellectual justification or some irrationality that otherwise vitiated the exercise of the discretion. Counsel for the Minister submitted that the Tribunal provided a very compelling intellectual justification for describing the breach as serious at [38] of its reasons. Counsel for the Minister further submitted that the fact that the Tribunal individually and cumulatively assessed the issues put forward by the applicant is almost a complete answer to the applicant’s submissions.
Resolution
In addressing this ground, it is convenient to start by considering the power that the Tribunal was exercising and then setting out the paragraphs of the Tribunal reasons that the parties rely on in their submissions.
Section 116(1)(b) of the Migration Act relevantly provides that the ‘Minister may cancel a visa if he or she is satisfied that … its holder has not complied with a condition of the visa’. Once it is found that a visa holder has not complied with a condition of the visa, the discretion to cancel the visa is broad: see Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486; [2017] FCAFC 172 at [54]. There are no prescribed matters that the Tribunal is required to take into account, although it will often have regard to the factors identified in the PAM 3 guidelines where relevant.
The Tribunal identified the applicant’s non-compliance with a condition on his visa at [10] of its reasons, where it said (emphasis added):
The applicant provided the Tribunal with a copy of the delegate’s decision which outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant had not been enrolled in a registered course from the 23rd August 2017 to 14th June 2018. The delegate cancelled the visa on the 27th July 2018. The Tribunal discussed this with the applicant and he confirmed this to be correct. On the evidence before the Tribunal and by his own admission, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a) for nearly 10 months before the visa was cancelled.
It can be seen that the Tribunal identified the non-compliance with a visa condition as not being enrolled in a registered course, and therefore not complying with condition 8202(a), for a period of 10 months.
In considering whether it should exercise its discretion to cancel the applicant’s visa, there are two places in its reasons where the Tribunal expressly referred to ‘seriousness’.
The first is at [34], under the heading ‘Degree of hardship that may be caused (financial, psychological, emotional or other hardship’. In this paragraph, the Tribunal said (emphasis added):
The Tribunal accepts that a cancellation may contribute to the emotional pressure and stress that the applicant may already be facing. However, the Tribunal is also mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as no-enrolment. Whilst appreciating the hardship the applicant, his brothers and their families and the applicant’s Sri Lankan parents may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its consideration.
The second reference to ‘seriousness’ is at [38], where the Tribunal said (emphasis added):
The Tribunal acknowledges that the applicant has stated he wishes to study in Australia. Whilst the Tribunal have given some weight to his claim that he experienced financial difficulties and is now remorseful for his inability to study in Australia. The fact is that the applicant’s brothers are now able to financially assist him after the visa has been cancelled despite saying they previously were not able to do so. The Tribunal appreciates there would have been financial pressure and stress for the applicant, however student visas are granted for the purposes of studying and achieving a qualification. Individually and cumulatively the issues put forward by the applicant pertaining to the circumstances in which the breach occurred are given some weight but not sufficient weight to outweigh the reasons for cancelling the visa because of the seriousness of the breach.
The Tribunal has not expressly stated in these paragraphs what factors it has taken into account in deciding to characterise as serious ‘the obtaining of a student visa and then remaining in Australia and breaching a condition such as non-enrolment’ and the ‘breach’ of the condition.
There are also two further paragraphs relied on by the applicant in which the Tribunal does not use the term ‘serious’, but which the applicant relies on to suggest that the Tribunal considered the reason for the non-compliance as separate from the non-compliance itself. The first is [28], where the Tribunal said:
The Tribunal appreciates the significance of obtaining a student visa for the applicant and his family, but it does not operate to ameliorate the applicant for a lack of prioritising his studies because of his lack of monetary funds.
The second is [42], where the Tribunal said:
The applicant told the Tribunal that he had felt he had wasted the past year as was not able to study. He stated to the Tribunal that he just wanted to be able to have one more chance to get his life back and complete his studies. Whilst the Tribunal appreciates the applicant is now remorseful for inability to study in Australia and the fact that his brothers are able to assist him now, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.
These paragraphs disclose the Tribunal adopting a weighing of different considerations in the exercise of its discretion.
There does not appear to be any dispute between the parties it was appropriate for the Tribunal to consider the financial circumstances of the applicant and the role that his financial circumstances played in the non-compliance with condition 8202. This is directly acknowledged in parts of the oral submissions advanced by Counsel for the applicant, such as that the factual reasons for the no-compliance are directly relevant to whether to exercise the discretion to cancel the visa. The Tribunal considered the applicant’s evidence in relation to his financial difficulties and his inability to pay the course fees, including in its consideration of the circumstances in which the ground of cancellation arose.
The key dispute between the parties, as I read the different emphasis in their submissions, is that, on the applicant’s case, the Tribunal was required to consider the role the applicant’s financial circumstances played in the breach of condition 8202(a) in characterising the breach as ‘serious’, whereas, on the Minister’s case, it was sufficient for the Tribunal to consider the applicant’s financial circumstances when it exercised the discretion to cancel the applicant’s visa.
Both parties have cited authority directed to the consideration of the ordinary meaning of ‘serious’ in advancing their submissions in relation to this ground.
The applicant relies on:
(a)Australian Securities and Investments Commission (ASIC) v Hochtief Aktiengesellschaft (2016) 117 ACSR 589; [2016] FCA 1489 at [97]-[99], in which the Federal Court considered that the ordinary meaning of the word ‘serious’ would include ‘grave’, ‘not trifling’, ‘weighty’ or ‘important’, and that whether a contravention of a provision is serious is a question of fact. The Court rejected a submission that all contraventions of the relevant provision would be serious, noting that the provision only allows for the imposition of a pecuniary penalty if the contravention is serious and there would be little point in imposing such a condition if all contraventions of the section were necessarily regarded as serious; and
(b)R v Hallcroft (2016) 126 SASR 415; [2016] SASCFC 137 at [42] and [48], which addressed concepts of objective seriousness and subjective factors in sentencing for a criminal offence.
The Minister relies on:
(a)Arquita v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 465; [2000] FCA 1889 where the Federal Court said at [57] that the meaning to be attributed to the word ‘serious’ depends on the context in which it is used; and
(b)Fleming v Hutchinson (1991) 66 ALJR 211 for the proposition that the evaluation of ‘seriousness’ is a question of degree.
None of these authorities directly support the proposition that in characterising non-compliance with a condition as ‘serious’ in exercising the discretion in s 116 of the Migration Act, the Tribunal was required to expressly consider the reasons for the non-compliance. Each of the cases addresses the concept of ‘seriousness’ in particular statutory contexts that are not directly applicable in the current situation. Nevertheless, it can be accepted that the characterisation of something as serious is a finding of fact, that it can involve a question of degree and that the meaning of seriousness can depend on the context in which the term is used.
I accept the Minister’s submission that there is no magic to the term ‘seriousness’ as used in the Tribunal’s reasons and that the characterisation of the non-compliance as serious was not the prevailing matter that the Tribunal considered in its assessment. I do not consider that it is a fair reading of the Tribunal’s reasons to suggest that the Tribunal considered that all failures to comply with condition 8202 are the same. The non-compliance identified by the Tribunal at [10] of its reasons was the applicant not being enrolled in a registered course, and therefore not complying with condition 8202(a), for a period of 10 months. It was open to the Tribunal, and was not illogical or irrational, to treat the applicant’s lack of enrolment for a period of 10 months as amounting to a serious non-compliance, including in the context of the observation at [38] of its reasons that ‘student visas are granted for the purposes of studying and achieving a qualification’. The finding that the non-compliance was serious was not a finding that no reasonable decision-maker could have reached on the evidence before the Tribunal. I do not identify jurisdictional error in the Tribunal’s characterisation of the non-compliance with condition 8202 as serious.
The question for the Tribunal, once it found that the applicant had failed to comply with condition 8202(a), was whether it should exercise its discretion to cancel the applicant’s visa. The Tribunal correctly identified this question. In considering this question, the Tribunal had regard to the applicant’s circumstances, including the reason for the non-compliance. Considering all the matters it identified as relevant, individually and cumulatively, and balancing and weighing those matters, the Tribunal exercised its discretion to cancel the applicant’s visa. What is important in this matter is that the Tribunal correctly identified and understood the matters relevant to the exercise of its discretion, including the reasons for the non-compliance, and had regard to them. It was the consideration of all these factors that led to the Tribunal exercising the discretion in the way it did, rather than the characterisation of the non-compliance as serious. The Tribunal has not asked itself the wrong question by characterising the non-compliance as serious without expressly addressing, in making that finding, the reasons for the non-compliance.
Ground 1 is not established.
GROUND 2
By this ground, the applicant asserts that the Tribunal constructively failed to consider his evidence and submission that a discretionary reason not to cancel his visa was that he had only four more subjects to complete. The applicant alternatively characterised the asserted jurisdictional error as a denial or procedural fairness or a failure to exercise jurisdiction, having regard to the reasoning of the Federal Court in Kaur v Minister for Immigration and Border Protection (2014) 144 ALD 292; [2014] FCA 1046 at [46]-[49].
The applicant’s submissions
In his written submissions, the applicant submitted that his plea for his visa not to be cancelled included an appeal to the Tribunal that he only had four more subjects to go to complete the course for which he was initially granted his visa and that the same point was made, albeit without reference to the precise number of subjects, in a brief written submission provided to the delegate. The applicant submitted that the power to cancel his visa under s 116 of the Migration Act was an unconstrained discretionary power and the fact that there were only four more subjects to go was relevant to whether the discretion should be exercised. The fact that the applicant had only four more subjects to go, together with him relying on it as part of his case for why his visa should not be cancelled, was referred to at [19] of the Tribunal’s reasons as ‘background’ evidence but was not brought to bear in any part of the Tribunal’s reasoning. The applicant submitted that the fact is not self-evidently relevant to any of the policy factors which the Tribunal applied, except to the catchall ‘any other relevant matters’, and the Tribunal stated that that consideration was not relevant.
The applicant submitted that the proper inference to be drawn is that the Tribunal either did not consider the fact that he only had four more subjects to go or that it considered the fact was immaterial to his case. In either case, submitted the applicant, the inference reveals a jurisdictional error. The applicant submitted that on no view could his discretionary appeal to give him another chance to undertake the only four subjects required to complete his degree not be regarded as an ‘other relevant matter’ and the Tribunal therefore erred in failing to consider this claim.
In his oral submissions, Counsel for the applicant responded to the Minister’s written submissions (summarised below) and acknowledged that Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) means the Tribunal does need to address every single piece of evidence going towards a claim. However, that case does not mean that the Tribunal could just overlook the claim or argument that the applicant has four more subjects to go. Counsel for the applicant submitted that those parts of the Tribunal’s reasons relied on by the Minister relating to the applicant’s wish to complete his studies is not the same as the applicant’s submission that he only has four more subjects to go and therefore the finish line is in sight. Counsel for the applicant submitted that the description completing studies is just as apt to cover somebody who has just started the course and has 90% to go. Therefore, the reference to completing studies is not sufficiently precise to capture the argument that was made and which the Tribunal itself appreciated had been made.
In his reply submissions, responding directly to the oral submissions advanced on behalf of the Minister, outlined below, Counsel for the applicant submitted it is relevant to consider what was the entire point of the applicant being asked questions and giving answers about the number of subjects to go. The Tribunal was not simply gathering facts for no purpose. The Tribunal considered the fact that there were four subjects to go to be material to its decision, which is why it is recorded at [11] of its reasons, noting that the requirement in s 368 of the Migration Act for the Tribunal to give reasons setting out the findings on any material questions of fact and referring to evidence or other material on which those findings were based. Therefore, the matters referred to in the Tribunal’s reasons are the very facts and the very matters the Tribunal itself thought were material.
The Minister’s submissions
The Minister submitted that it is not necessary for every item of evidence or contention to be addressed by the Tribunal in its reasons, citing Applicant WAEE at [46]. Here there is ample indication that the contention was considered. The applicant’s submissions to the Tribunal was that with the financial assistance of his brothers, he is now in a position to complete his studies. The Tribunal considered this claim but rejected it. The Minister further submitted that the Tribunal gave minimal weight to the applicant’s submission that if he is prevented from studying in Australia (in other words, prevented from completing the four subjects because of the cancellation of his visa) his future would be ruined. The Minister also noted that the Tribunal considered the applicant’s submission that he wished for one more chance to get his life back and complete his studies but gave this submission limited weight. The Minister submitted that the Tribunal therefore considered but rejected the claim.
In his oral submissions, Counsel for the Minister submitted that the contention that was required to be considered was not the fact that only four subjects remained in the course, but rather that the applicant wished to complete his studies. One reason for wishing to complete his studies is that was it was incomplete, that is, there were four subjects left. That is one of the reasons that go to the overall claim of wishing to complete the studies, which was addressed a number of times by the Tribunal. The Minister referred to evidence before the Court including in a submission to the delegate where it was said that the applicant has only three semesters of his studies to complete, as he already completed most of his Bachelor degree, and submitted that self-evidently there was no claim there that there is only four subjects to go, instead it is a claim that there are three semesters to go.
Counsel for the Minister referred to the transcript of the hearing before the Tribunal, which the applicant referred to in his submissions without extracting or specifically taking the Court to them in oral submissions, and submitted that the first reference on page 11 of the transcript is or does not contain any plea based on there being only four subjects left. Rather there is simply a statement that he has got four subjects to complete and that he has completed seven subjects. Counsel for the Minister submitted that at this point the Tribunal was simply gathering facts about what the course was, how many subjects have been completed and how many were to go.
In relation to the applicant’s reference to the transcript at page 29, Counsel for the Minister submitted that this reference is again talking about the facts of how many subjects had been completed, how many there are to go and what is the cost. There is no express plea there.
Counsel for the Minister submitted that the alleged plea that the applicant now relies on was not really put in the terms said by the applicant. What was clear from the context is that the applicant has an uncompleted course, he wished to complete that course and indicated that he wanted an opportunity to complete his course in his evidence to the Tribunal. The Tribunal considered those matters but ultimately decided it would not exercise that discretion. There is no error in failing to consider expressly how many subjects were left, in the context of the way the discussion and the submissions were put at the Tribunal hearing, when read properly and fairly in context.
Resolution
The resolution of this ground turns on whether the applicant’s evidence that he has four units to complete is properly characterised as a separate assertion to the effect that the advanced stage the applicant reached in his studies was a reason why the discretion should be exercised in his favour, or as an aspect of the evidence relating to his assertion that he wished to finish his degree. The assessment of the characterisation of the applicant’s evidence must be based on how that evidence was advanced before the Tribunal rather than how it is emphasised in the submissions advanced by Counsel for the applicant before the Court.
In his response to the NOICC, the applicant, via his representative, submitted:
He has only three semesters of his studies as he has already completed most of his bachelor degree.
At the hearing before the Tribunal, the following exchange took place between the applicant and the member, recorded at pages 10-11 of the transcript, in the course of the applicant giving evidence about his study history in Australia:
Mr. Delpachitra: Then after I enroll, uh, to the, uh, Homestay to do the Bachelor of Hospitality.
Judge Pierson: A Bachelor of Hospitality?
Mr. Delpachitra: Yeah.
Judge Pierson: Okay, Enroll in [inaudible 00:20:34] And did you complete that course?
Mr.Delpachitra: No, I got like four subjects to complete.
[silence]
Judge Pierson: In [inaudible 00:21:00] and you have four subjects to complete?
Mr. Delpachitra: Yeah.
Judge Pierson: And you’ve completed seven subjects?
Mr Delpachitra: Yeah.
Later in the hearing, a further exchange took place, recorded at pages 28-29 of the transcript:
Judge Pierson: You have a certificate of enrollment-
Mr.Delpachira: Yeah.
Judge Pierson: -of enrollment for the bachelor period. So that’s-- you said that before.
Mr.Delpachitra: Yeah, yeah, yeah, yeah.
Judge Pierson: With the four subjects to go.
Mr.Delpachitra: Yeah, yeah.
Judge Pierson: With the four subjects to go.
In summarising the applicant’s evidence given at the hearing, the Tribunal said at [19] of its reasons:
The applicant further told the Tribunal that he subsequently enrolled in the Bachelor of Hospitality Management in 2015 at the Holmesglen Institute whereby he completed seven subjects. The last subject that the applicant completed was “Customer Relationship Management” in 2016. The applicant claimed he still has four subjects to complete before being awarded the Bachelor of Hospitality Management.
I am satisfied that this is an accurate summary of the applicant’s evidence about that course. I accept the Minister’s submission that the Tribunal, in those parts of the hearing referred to in the extracts of the transcript above, was gathering evidence in relation to the applicant’s course.
The applicant gave evidence to the Tribunal that he wished to complete his studies in Australia. It is clear from the extracts above that he gave evidence that he had completed seven subjects of his Bachelor of Hospitality Course and had four subjects to go and it is clear from [19] of the Tribunal’s reasons that the Tribunal clearly understood this evidence. There is nothing in the manner in which the applicant advanced his evidence or submissions about the number of subjects to complete to suggest that any contention was being made, expressly or impliedly, that the specific number of subjects to complete was a reason not to cancel the visa. I do not accept the applicant’s submission that his evidence to the Tribunal amounted to a contention that he only has four more subjects to go and therefore the finish line is in sight, this being a reason not to cancel the visa.
The Tribunal considered the applicant’s evidence that he wished to complete his degree in Australia in considering the exercise of its discretion to cancel his visa. Specifically:
(a)in considering the purpose of the applicant’s stay in Australia and whether he has a compelling need to stay in Australia, the Tribunal expressly considered the applicant’s expressed need to remain in Australia to complete his studies, including his expressed intention to complete the Bachelor or Tourism and Hospitality Management and then study a two year Gastronomy and Food Science course at the William Angliss Institute, as well as the disappointment for the applicant and his family if he is unable to complete his studies in Australia, but gave these matters little weight as the applicant could reapply to study in Australia after the exclusion period;
(b)in considering the degree of hardship if the visa is cancelled, the Tribunal considered the applicant’s submission that his future would be ruined if he is not able to study in Australia as he will have no qualifications to advance his career or financial income, but considered this (and other factors relating to hardship) did not outweigh the breach; and
(c)in considering the circumstances in which the ground of cancellation arose, the Tribunal referred to the applicant’s claim that he now wants to have one more chance to complete his studies in Australia as his brothers could now financially assist him and acknowledged his wish to study in Australia.
In weighing the various factors in the exercise of its discretion, taking into account the manner in which the applicant advanced his evidence and submissions, it was sufficient for the Tribunal to consider the applicant’s desire to complete his unfinished degree (and his expressed desire to complete a further course after that) without referring to the specific number of subjects still to be completed in relation to that degree. It is apparent that the Tribunal understood the applicant’s evidence that he had four units to complete on that degree because it summarised that evidence at [19] of its reasons.
I am satisfied that the Tribunal in this case was not required to specifically address any submission that a discretionary reason not to cancel the applicant’s visa was that he had only four more subjects to complete, because the applicant’s evidence, properly construed, does not disclose that any such submission or claim was advanced. Rather, based on the applicant’s evidence and assertions to the Tribunal, the Tribunal was required to, and did, consider in the exercise of its discretion the applicant’s wish to complete his studies.
Ground 2 is not established.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal decision is affected by jurisdictional error, the judicial review application is dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 April 2025
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