Dhanian v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1090
•28 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dhanian v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1090
File number: PEG 160 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 28 November 2023 Catchwords: MIGRATION – Cancellation of a Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal misunderstood the applicant’s evidence – whether the Tribunal’s decision was unreasonable – remittal futile in any event – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 48, 116, 359AA & 476
Migration Regulations 1994 (Cth), Condition 8202 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179
Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10
Patel v Minister for Immigration & Anor [2014] FCCA 2000
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 93 Date of hearing: 17 August 2023 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 160 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMAN DHANIAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
28 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 3 & 5). He was granted a Student (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) on 16 October 2015 (CB 1-4). He arrived in Australia on 26 October 2015 as the holder of that visa (which was valid to 15 March 2020) (CB 67).
The visa was granted for the purpose of studying an English course, followed by a Bachelor of Engineering (Mechanical) (Honours) (which was scheduled to be completed by 31 December 2019). The applicant did not commence the Engineering degree and, instead, studied Certificates III and IV in Commercial Cookery between 14 March 2016 and 10 March 2017 and 13 March 2017 and 1 September 2017 respectively. The applicant did not successfully complete the Certificate IV in Commercial Cookery (CB 67-68).
On 8 June 2018, Australian Border Force (“ABF”) officers attended the applicant’s home and invited the applicant to attend an interview scheduled on 12 June 2018 to discuss his visa. At that time, the applicant was not enrolled in any course of study (CB 5).
On 12 June 2018, a delegate of the first respondent (the “Minister”) issued the applicant with a Notice of Intention to Consider Cancellation (“NOICC”) pursuant to s 116 of the Migration Act 1958 (Cth) (the “Act”) (CB 5-8).
That same day (also on 12 June 2018), the applicant attended an interview with the Minister’s delegate and provided evidence that he was then enrolled in a Diploma of Hospitality Management (to be completed between 11 June 2018 and 4 January 2019) (CB 5 & 68).
Following the interview (on 12 June 2018), the Minister’s delegate cancelled the applicant’s visa (CB 9-20). The delegate determined that the applicant had failed to comply with Condition 8202 in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”) in relation to his visa. Relevantly, the applicant had not maintained enrolment in a registered course of study during the period from 1 September 2017 to 8 June 2018. Further, the applicant had not re-enrolled in a course of study until after the ABF officers had attended his house. On the basis of this information, the delegate determined that the grounds for cancelling the visa outweighed the reasons for not cancelling the applicant’s visa (CB 14-18).
The applicant was notified of the decision to cancel his visa that same day (on 12 June 2018) and advised that he could seek review of that decision by the Administrative Appeals Tribunal (the “Tribunal”) within seven working days after the day on which he received the notice (CB 9). Hence, the applicant was required to seek review of the decision to cancel his visa by 21 June 2018.
On 22 June 2018, the applicant sought review of the delegate’s decision with the Tribunal (CB 26-36).
On 25 June 2018, the Tribunal invited the applicant to comment on the validity of his review application (CB 37-38).
Later that day (also on 25 June 2018), the applicant responded to that invitation to comment (CB 39).
On 16 July 2018, the Tribunal determined that it did not have jurisdiction in this matter because the review application had been lodged outside of the requisite time period (CB 43-45).
The applicant sought review of that decision in the then Federal Circuit Court of Australia (the “FCCA”). On 12 September 2019, a Judge in the FCCA dismissed the application for judicial review and ordered that the time within which the applicant could lodge any appeal be extended “until 14 days after the publication of written reasons” (CB 46).
On 26 September 2019, the applicant again applied to the Tribunal for review of the delegate’s decision to cancel his visa (CB 47-48).
On 27 September 2019, the Tribunal invited the applicant to comment on the validity of his review application (CB 49-50). That invitation letter relevantly stated as follows (CB 50):
I am of the view that your application is not a valid application as a decision dismissed by the Federal Circuit Court of Australia is not a decision which can be reviewed by us. However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 11 October 2019. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 10 October 2019, the applicant responded to that invitation to comment (via email) and stated (without alteration) (CB 51-52):
Thanks for your email. Please see attached order from Judge Mcnab and point 3 of the court order states that
3. The time for lodging any appeal be extended until 14 days after the publication of written reason.
As my decision was done on 12 Sep 2019 and I applied for AAT on 26 Sep 2019 which was as per the orders of court. Therefore I request tribunal to please accept my application for review and give me opportunity to present my case.
The Tribunal subsequently formed the view that the applicant had not been correctly notified of the delegate’s decision (for the reasons set out in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46) and that, on that basis, the time within which he could seek review had not yet begun. As such, the Tribunal had jurisdiction to review the matter (CB 66).
On 23 June 2022, the Tribunal invited the applicant to attend a hearing before it (by video conference) on 11 July 2022 (CB 53-56).
The applicant attended the Tribunal hearing (via video link) on 11 July 2022 (CB 60-62).
On 13 July 2022, the Tribunal affirmed the decision to cancel the applicant’s visa (CB 65-73).
On 16 August 2022, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is nine pages long and spans 57 paragraphs. The final page of the decision contains extracts of relevant legislative provisions.
The Tribunal began by noting that the applicant’s visa had been cancelled on 12 June 2018 on the basis that the applicant had not complied with Condition 8202 in Schedule 8 of the Regulations. The Tribunal confirmed that it had received an application for review on 22 June 2018 and that a differently constituted Tribunal had found (on 16 July 2018) that it did not have jurisdiction because the review application had been filed outside of the requisite time period. The Tribunal noted that the applicant had sought review in the FCCA and that that review had been dismissed (at [1]-[5])
The Tribunal continued:
6.However, the Tribunal has now formed the view that for the reasons set out in Parata [2021] FCAFC 46 the consequence of the failure to correctly notify the applicant of his review rights from the cancellation of his visa is that the time within which the applicant must lodge his application to the Tribunal to review the primary decision and pay the prescribed fee had not commenced. As such, the Tribunal finds that it has jurisdiction to consider the application for review.
The Tribunal confirmed that the applicant had appeared at a hearing before it (via video link) on 12 July 2022 and identified that the issue before it was whether the applicant had breached Condition 8202 in Schedule 8 of the Regulations (noting that in the event of a breach, the applicant’s visa may be cancelled under s 116 of the Act). The Tribunal then set out the provisions of Condition 8202 in Schedule 8 of the Regulations and noted that the applicant’s visa was cancelled on the basis that he had not been enrolled in a registered course of study (at [7]-[11]).
The Tribunal noted that the NOICC documented that the applicant had not been enrolled in a course of study from 1 September 2017 until he submitted a new confirmation of enrolment to study a Diploma of Hospitality Management (commencing on 11 June 2018). The Tribunal also noted that the Provider Registration and International Student Management System record (discussed with the applicant at the hearing pursuant to s 359AA of the Act) also indicated that the applicant was not enrolled in a course of study from 1 September 2017 to 11 June 2018 (at [12]).
The Tribunal explained that the applicant had been provided with the NOICC on 12 June 2018, the applicant had provided submissions to the Department of Home Affairs (the “Department”) on 12 June 2018 and the response indicated that the applicant understood that he had breached Condition 8202 in Schedule 8 of the Regulations. The Tribunal confirmed that the delegate had considered the applicant’s submissions and had cancelled the applicant’s visa on 12 June 2018 (at [13]-[15]).
Noting the applicant’s oral evidence (at the Tribunal hearing) that he had not been enrolled in a course of study from 1 September 2017 to 11 June 2018, the Tribunal found that the applicant had failed to maintain his enrolment and, as such, had not complied with Condition 8202 in Schedule 8 of the Regulations. On that basis, the Tribunal was satisfied that the ground for cancellation (in s 116(2)(b) of the Act) existed (at [16]-[18]).
Having found that the applicant had not complied with a condition of his visa, the Tribunal identified that it was required to consider whether the applicant’s visa should be cancelled. The Tribunal noted that there were not matters outlined in the Act or the Regulations that it was required to consider in the exercise of its discretion but confirmed that it had had regard to the “circumstances of [the] case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction” (at [19]-[20]).
The Tribunal then set out the applicant’s educational history in Australia and explained that the applicant had been granted the visa for the purpose of studying an English course, followed by a Bachelor of Engineering (Mechanical) Honours course (due to finish by 31 December 2019). The Tribunal noted that the applicant had not commenced the Bachelor course and, instead, had completed a Certificate III in Commercial Cookery from 14 March 2016 to 10 March 2017. The Tribunal acknowledged that the applicant had enrolled in a Certificate IV in Commercial Cookery and Diploma of Hospitality Management (noting, however, that neither course had been completed by the applicant) (at [21]).
The Tribunal outlined the applicant’s (oral) submission to the Department in response to the NOICC, noting that the applicant had submitted that his visa should not be cancelled because he had “many outside pressures” that resulted in him being unable to concentrate on his studies, including personal issues related to his family in India and the loss of two close friends. The Tribunal explained that similar submissions were made before the Tribunal, with the applicant referencing the death of his two friends and telling the Tribunal that they “had a bad effect on his mind and he should have attended College but instead stayed at home”. The applicant told the Tribunal that there were “no other reasons” for his failure to study during the relevant period (at [22]-[23]).
The Tribunal then considered the purpose of the applicant’s travel and stay in Australia and noted that, on the applicant’s own evidence, the purpose of his travel to Australia was to study mechanical engineering and to obtain a Bachelor qualification. The Tribunal also outlined the applicant’s evidence that, “if he is given a visa, he will complete the Certificate IV in Cookery, then a Diploma of Hospitality Management course and then finish he Bachelor of Mechanical Engineering”. The Tribunal accepted that the applicant’s purpose for travelling to Australia was for study and that his preference was to study in Australia. However, the Tribunal considered that there were other study options available to him in India (at [24]-[29]).
The Tribunal also had regard to the applicant’s evidence that “there will be shame on his family if he returns without good qualifications” and that the applicant was concerned about the effect his return would have on his father. However, on the material before it, the Tribunal was not satisfied that the applicant had a compelling need to remain in Australia and gave the issue low weight in favour of the applicant (at [30]-[32]).
The Tribunal reiterated that the applicant had not complied with Condition 8202 in Schedule 8 of the Regulations because he had not been enrolled in a registered course of study for the period from 1 September 2017 to 11 June 2018. The Tribunal considered the nine-month period to be significant. The Tribunal summarised the explanation provided by the applicant for ceasing his studies and acknowledged that there was no evidence that the applicant had failed to comply with any other visa condition. Given the lengthy period that the applicant was not enrolled, the Tribunal gave that factor little weight (at [33]-[38]).
The Tribunal then considered any hardship that might be caused by the visa cancellation and outlined the applicant’s evidence that his father would endure shame if he returned without a qualification and that “his family in India would be very disappointed and upset if his visa was cancelled”. The Tribunal was nonetheless satisfied that the applicant would have study options in his home country and, while accepting there was a degree of hardship to the applicant and his family, the Tribunal gave such disappointment and shame low weight in favour of the applicant (at [39]-[41]).
The Tribunal then outlined the circumstances in which the ground of cancellation arose, as follows:
42.In his evidence the applicant has advanced several matters that impacted on his ability to study. He has said he did not have the available funds to pay for a COE, as well as he was suffering mental stress due to the death of his two friends and as a result did not attend the school rather staying at home. However, as raised with him, the Tribunal has difficulty accepting this mental stress affected his ability to study when there is no evidence he ever sought medical help. The Tribunal is of the view if he was so mentally affected, he could not study, he would have sought help as he has claimed he was in Australia to study.
43.Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by two events of personal tragedy but not to the extent claimed which led him to be unable to study for the 9-month period from 1 September 2017 to 11 June 2018. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.
The Tribunal noted that there was no evidence of the applicant being uncooperative in his past dealings with the Department and he had responded to the NOICC. The Tribunal gave no weight to any consequential cancellations (given that the applicant was single and had no dependents) (at [44]-[45]).
The Tribunal gave neutral weight to the legal consequences of cancellation, finding that the likelihood of the applicant being detained was remote (based on the applicant’s evidence that he would comply with any lawful direction to depart Australia) and that the three-year restriction imposed by s 48 of the Act had already passed. Further, the Tribunal noted that any difficulties that the applicant may have in obtaining any further Australia visa were intended and legitimate consequences of cancellation (at [46]-[49]).
The Tribunal also gave neutral weight to Australia’s international obligations and to the applicant’s lack of study since June 2018, noting that he had a “no-study condition” on his visa from that time (at [50]-[54]).
The Tribunal considered the applicant’s circumstances both individually and cumulatively and found that “the limited aspects favourable to the applicant [did] not outweigh the reasons” in favour of cancelling his visa and ultimately concluded that the applicant’s visa should be cancelled. The Tribunal affirmed the delegate’s decision cancelling the visa (at [55]-[57]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 16 August 2022 contains eight “grounds of review” as follows (without alteration):
1. I am an Indian Citizen, born on 07th of March 1995 at Haryana, India.
2. I arrived in Australia as a holder of student visa.
3. My student visa was cancelled on 22nd of June 2018.
4.I applied for a review of the application with the Migration and Refugee Division of Administrative Appeals Tribunal.
5.AAT invited me to for hearing on 12th of July 2022.
6.On the 13th of July 2022, the Administrative Appeals Tribunal (AAT) confirmed its decision to dismiss the application.
7.I believe that the decision of AAT was unreasonable, as they didn't considered circumstances which lead to non-enrolment.
8.I request Federal Circuit Court to quash the decision of AAT so that my application can be reinstated, and I can add new nomination to my visa application.
The applicant also filed an affidavit (affirmed by the applicant on 16 August 2022) in support of his review application. That affidavit annexed copies of the delegate and Tribunal decisions, set out some background and factual information (largely mirroring the information contained in grounds 1-6 and 8 above) and expanded on the claim raised in ground 7 above as follows (without alteration):
6. I had some family issues including death of my close friend.
7.I was unable to concentrate on studies, and my COE got cancelled due to non-payment of my university fee.
8.I was regular with my studies until October 2017 but couldn’t concentrated as I was suffering from stress and anxiety due to some family problem and death of my close friend.
…
13. I believe that that AAT was unreasonable in its decision.
…
On 21 October 2022, procedural orders were made by Registrar van der Westhuizen of this Court giving the applicant an opportunity to file an amended application, any additional evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicant.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 16 August 2022, a Court Book numbering 73 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 17 May 2023 and an affidavit of service of Benjamin Mayne (affirmed on 29 May 2023 and filed on 30 May 2023).
The applicant appeared before this Court on 17 August 2023 without legal representation. The Court confirmed that the applicant had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decisions in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or reinstate the applicant’s visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that he had attended a hearing before the Tribunal via video link. Further, he explained that he had been asked a lot of questions and had been “100 percent truthful” with his answers but that the Tribunal member had either “misunderstood” his meaning or was “unreasonable” in their decision.
The applicant further explained that he had told to the Tribunal that it would bring shame on his family if he returned home without a good qualification and thought that the Tribunal had either misunderstood his evidence or that they were unreasonable when accepting what he had said in that regard.
The applicant acknowledged that he had “done the wrong thing” by not attending college or university but said that he was “not mature at that time” and said that he was simply “asking for a chance to pursue his dreams” and for an “opportunity to resume his studies”.
The applicant’s comments, to the extent that they point to any jurisdictional error on the part of the Tribunal, will be addressed with the Court’s considered of the applicant’s grounds of review below.
CONSIDERATION
Grounds of review
As set out above, the applicant’s grounds of review provide as follows (without alteration):
1. I am an Indian Citizen, born on 07th of March 1995 at Haryana, India.
2. I arrived in Australia as a holder of student visa.
3. My student visa was cancelled on 22nd of June 2018.
4.I applied for a review of the application with the Migration and Refugee Division of Administrative Appeals Tribunal.
5.AAT invited me to for hearing on 12th of July 2022.
6.On the 13th of July 2022, the Administrative Appeals Tribunal (AAT) confirmed its decision to dismiss the application.
7.I believe that the decision of AAT was unreasonable, as they didn't considered circumstances which lead to non-enrolment.
8.I request Federal Circuit Court to quash the decision of AAT so that my application can be reinstated, and I can add new nomination to my visa application.
Grounds one to six and eight (above) set out the factual background to the applicant’s matter and otherwise simply seek relief from this Court. They do not otherwise point to any issue of jurisdictional error that this Court can address.
Ground seven claims that the Tribunal failed to consider the circumstances which led to the applicant not being enrolled in a registered course of study.
This ground is further “particularised” by the contents of the applicant’s affidavit (filed in support of his judicial review application) which relevantly provides as follows (without alteration):
6. I had some family issues including death of my close friend.
7.I was unable to concentrate on studies, and my COE got cancelled due to non-payment of my university fee.
8.I was regular with my studies until October 2017 but couldn’t concentrated as I was suffering from stress and anxiety due to some family problem and death of my close friend.
…
13. I believe that that AAT was unreasonable in its decision.
…
To the extent that the applicant claims that the Tribunal failed to consider the applicant’s evidence about how the ground of cancellation arose, the Court disagrees for the reasons that follow.
The Tribunal explained (in its background summary) that the applicant had given oral submissions to the Department outlining why his visa should not be cancelled and set out the applicant’s evidence before the Tribunal on the same issue. In particular, the Tribunal noted as follows:
22.The applicant provided oral submissions to the Department in relation to the matter which are outlined in the NOICC submitted with the Application for Review which where relevant are outlined below. He indicated that the visa should not be cancelled as he has had many outside pressures that have caused him not to be able to concentrate on his studies, as his family in India have many personal issues and as he has lost 2 close friends in the past few months.
23.The applicant also provided evidence at the Tribunal hearing as to why the visa should not be cancelled. He again referred to the death of 2 friends, one a friend in India who died in a car accident and another friend in Australia who died jumping from a cliff in Albany. He said this had a bad effect on his mind and he should have attended College but instead stayed at home. He confirmed that he did not study and attend courses in the relevant period because of the mental effect the death of his friends had on him. He said there were no other reasons why he did not study in the relevant period.
The Tribunal also set out information about the applicant’s “stress” and the death of his friends when discussing the applicant’s compliance with visa conditions, as follows:
34.The applicant said he stopped studying because of the mental stress the affect the death of his two friends had on him. He said he just stayed at home and did not go to College or study. He said he did not seek medical help for the mental stress and issues. As raised with the applicant, the Tribunal is of the view if the applicant came to Australia to study and was so mentally affected that he could not study it may expect he would have sought medical or other help for the mental stress. The evidence is he did not.
The Tribunal also had regard to the applicant’s evidence to the Department about having “personal issues” with his family, as follows:
36.To the Department he also referred to personal issues with his family, but no further evidence was provided at the hearing and he did not refer to this as an issue when asked if there was any other reason why he was not enrolled.
The Tribunal outlined those same issues again in its consideration of the circumstances in which the ground of cancellation arose, as follows:
42.In his evidence the applicant has advanced several matters that impacted on his ability to study. He has said he did not have the available funds to pay for a COE, as well as he was suffering mental stress due to the death of his two friends and as a result did not attend the school rather staying at home. However, as raised with him, the Tribunal has difficulty accepting this mental stress affected his ability to study when there is no evidence he ever sought medical help. The Tribunal is of the view if he was so mentally affected, he could not study, he would have sought help as he has claimed he was in Australia to study.
43.Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by two events of personal tragedy but not to the extent claimed which led him to be unable to study for the 9-month period from 1 September 2017 to 11 June 2018. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.
As evidenced above, the Tribunal considered the applicant’s evidence about his reasons for failing to maintain enrolment or complete his studies on multiple occasions throughout its written reasons. The Tribunal accepted that there were some circumstances outside of the applicant’s control but ultimately found that the factors in favour of cancellation outweighed those against cancellation.
Relevantly, the Tribunal stated:
55.The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, such as the death of his 2 friends it is not satisfied that the applicant demonstrated that his emotional and medical response to these events left him unable to study and that his failure to maintain enrolment was outside his control. The Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, it notes that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
On the basis of the information above, the Court is satisfied that the Tribunal considered the applicant’s evidence as provided by him (both to the Department and to the Tribunal).
No jurisdictional error arises in relation to ground seven.
The issue of unreasonableness will be considered below with the Court’s consideration of the applicant’s oral submissions.
Oral submissions
As set out above, the applicant told the Court (in oral submissions at the hearing of this matter) that he had explained to the Tribunal that it would bring shame on his family if he returned home without a good qualification and thought that the Tribunal had either misunderstood his evidence or that the Tribunal was unreasonable to not accept what he had said in that regard.
The applicant also told the Court that he had been truthful in his answers to questions asked by the Tribunal but that the Tribunal member may have either misunderstood what he was saying or was unreasonable in their decision.
Whether the Tribunal “misunderstood” the applicant’s evidence
To the extent that applicant suggests that the Tribunal misunderstood his evidence about the impact of the cancellation on his family members, the Court disagrees for the reasons that follow.
The applicant told the Court that he had raised concerns with the Tribunal that he would “bring shame to his family” by returning to India without good qualifications.
The Tribunal expressly considered those concerns in its written reasons, as follows:
30.He said he came to Australia when he was 22 years old and is now 27 and there will be shame on his family if he returns without good qualifications. He said his mother died at 12 and his father has taken good care of him and he is concerned at the effect his return without good qualifications would have on his father. While the Tribunal accepts his father would feel shame it has difficulty accepting that this reason amounts to a compelling need to remain in need.
…
39.At hearing the applicant referred to the shame that will have to be endured by his father if he returns without a qualification. To the delegate he said his family in India would be very disappointed and upset if his visa was cancelled and that he also sends money, and he would no longer be able to do that. When asked why he could not study in India as there are many courses available to him there, he said he could but he wants to stay and study here so he can obtain a degree from Australia so he can obtain a job in Australia and return to India for his family.
…
50.When asked by the Tribunal whether he had any fear of returning to India he said there were civil or political issues that he would face returning to India and that he did not fear return to India. He again referred to the shame his family would face if he returned without good qualifications. The applicant is not married and has no dependents.
As set out above, the Tribunal acknowledged the applicant’s evidence in this regard at three separate points in its written reasons. This indicates that the Tribunal understood the applicant’s evidence and took that evidence into consideration when making its decision.
The Tribunal then made findings on that information at two separate points in its written reasons.
First, the Tribunal made findings in relation to its consideration of the hardship that may be caused by the visa cancellation, as follows:
41.While it accepts there is a degree of hardship to the applicant and his family as to his lack of obtaining a bachelor course, finishing courses that may be caused due to the cancellation of his visa, on the evidence before it the Tribunal gives such disappointment and shame for him and his family low weight in favour of the applicant.
The Tribunal then made further findings in its consideration of whether Australia’s international obligations would be breached as a result of the cancellation, as follows:
51.The Tribunal therefore has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. While it accepts the applicant’s family may feel shame there is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.
As is evidenced above, the Tribunal accepted what the applicant had said in relation to his failure to obtain a bachelor qualification causing some shame for his family and gave that evidence some weight in the applicant’s favour.
No error arises in this regard.
Whether the Tribunal’s decision was unreasonable
To the extent that there is any suggestion that the Tribunal acted unreasonably in determining that the applicant’s visa should be cancelled, the Court again disagrees.
As this Court noted in Bhattarai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 673, legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision making: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4].
The principles concerning legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
As outlined above, the Court is satisfied that the Tribunal considered the applicant’s evidence and understood the applicant’s submissions in relation to the reason for his failure to maintain his enrolment (and, consequently, breaching his visa conditions).
The Tribunal considered that information and all of the applicant’s circumstances in some detail, affording weight in favour of or against cancellation in each instance. It is well established that, in conducting a review, the weight that the Tribunal affords information before it is a matter for the Tribunal and forms part if its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. Further, the Tribunal is entitled to accept, reject or give weight to evidence tendered as it thinks is appropriate in the circumstances of the matter before it: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
On the basis of all of the evidence before it, and having considered the applicant’s circumstances both individually and cumulatively, the Tribunal ultimately determined that the “limited aspects favourable to the applicant [did] not outweigh the reasons to cancel the visa” and, on that basis, concluded that the applicant’s visa ought to be cancelled (at [55]-[56]).
The Court considers the Tribunal’s findings in this matter to be logical and reasonable. It cannot be said that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33].
No error arises in this regard.
Discretion to refuse relief
In written submissions (filed in this Court on 17 May 2023), the Minister submitted that, “even if the applicant was able to demonstrate any jurisdictional error in the Tribunal’s decision … the Court should refuse relief in the exercise of its discretion”. The Minister made this submission on the basis that the applicant’s visa would have expired on 15 March 2020.
As explained by this Court in Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868, the Minister may extend the period in which a visa is in effect, however, none of those provisions relate to the particular circumstances before this Court. Accordingly, there appears to be no statutory power to extend the visa if the matter is remitted. That is, even if the Court remitted the matter and the Tribunal found in the applicant’s favour, it would be of no utility as the applicant’s visa has ceased and would no longer be in effect.
The Cout also notes that in Martin v Minister for Immigration & Multicultural Affairs [1999] FCA 1256, the Federal Court stated:
21.If my conclusion be wrong and a Bridging Visa E was granted, then the visa has long expired and there is no useful purpose to be achieved by making any order in relation to the decision of the Tribunal or the purported decision to refuse the grant of a bridging visa made by Mr Cain. That is only a hypothetical question, of course, because I have found on the balance of probability that, in fact, he made the decision within the two days. Even if he had not, I would consider that the relief which is sought would at this stage be futile…
The visa here has also “long expired”. It expired on 15 March 2020 (over three and a half years ago).
In Patel v Minister for Immigration & Anor [2014] FCCA 2000 and Makwasa v Minister for Home Affairs & Anor [2018] FCCA 1179, judges of this Court have found that in circumstances where the student visas under review had expired, it would be an exercise in futility to grant relief as any relief would have no practical consequence.
That reasoning applies equally here.
On the basis of the above, it would be futile to remit this matter to the Tribunal in circumstances where the applicant’s student visa would have expired in March 2020.
CONCLUSION
The application for judicial review and supporting affidavit (filed by the applicant on 16 August 2022) have failed to identify any jurisdictional error on the part of the Tribunal. The Court is otherwise satisfied that no error arises.
The application is, accordingly, dismissed.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 28 November 2023
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