Fonseka v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1367
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fonseka v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1367
File number: MLG 1172 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 12 December 2024 Catchwords: MIGRATION – student (subclass 500) – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (Cth) – decision of the (then) Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal failed to give the applicant a fair hearing – whether Tribunal misapplied the law – whether Tribunal failed to consider extenuating circumstances – whether Tribunal failed to consider compelling circumstances – whether Tribunal failed to consider relevant facts – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) pt 5, div 5, ss 116(1)(b), 359AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) item 3, pt 2, div 1, sch 2
Migration Regulations 1994 (Cth) sch 8, conditions 8202, 8202(2)(a)
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1
East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229
Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of last submission/s: 18 November 2024 Date of hearing: 3 December 2024 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Gardner Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1172 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HEWAFONSEKAGE SAHAN PRABUDDHA FONSEKA
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 18 April 2019 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $6,400.00.
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 Gostencnik
BACKGROUND
The applicant is a citizen of Sri Lanka who was granted a Student (Temporary) (Class TU) (Subclass 500) visa on 6 March 2017: Court Book (CB) 8. The applicant arrived in Australia on 9 March 2017: CB74 to study a Master of Professional Accounting (MPA) course at the University of Southern Queensland with the expected course end date being 30 November 2018: CB27.
On 28 June 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (Notice) of the applicant’s visa by a delegate of the (then) Minister for Immigration and Border Protection for purported non-compliance with condition 8202(2)(a) of Sch 8 to the Migration Regulations 1994 (Cth) (Regulations): CB7-CB12. The Notice informed the applicant, relevantly, that the Minister may, pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (Act), subject to not presently relevant exceptions, cancel a visa if the Minister is satisfied that the visa holder has not complied with a condition of the visa. The Notice:
(a)advised the applicant that:
(i)condition 8202(2)(a) of Sch 8 to the Regulations relevantly provided that the visa holder “must be enrolled in a full-time registered course”;
(ii)based on the evidence available through the ‘Provider Registration and International Student Management System’ (PRISMS), it appeared that the applicant had not been enrolled in a registered course of study since 14 September 2017; and
(b)invited the applicant to comment on the grounds for cancellation and provide any supporting evidence why the visa should not be cancelled.
On 5 July 2018, a registered migration agent responded to the Notice on behalf of the applicant and attached: an undated letter addressed to the visa officer: CB21-CB24; evidence of the applicant’s insurance claim for a chiropractic service: CB25-CB26; an overseas confirmation of enrolment (COE) to study the MPA at the University of Southern Queensland: CB27; an English test report results: CB28; a certificate of completion for a Level 5 Diploma in Management and Leadership at the London College of Engineering and Management with a statement of results: CB29-CB31; a certificate of completion for a Level 7 Diploma in Strategic Management and Leadership at the London College of Engineering and Management: CB32; a certificate in Master of Business Administration (MBA) at Anglia Ruskin University: CB33; a statement of results of the General Certificate of Education (Advanced Level) Examination, Sri Lanka: CB34-CB35; a statement of results from the MBA from Glyndwr University: CB36-CB37; a medical certificate dated 23 October 2017: CB38; multiple invoices from a chiropractic clinic: CB39-CB45, CB47-CB48, CB50; a referral letter to a radiology clinic: CB46, CB49; an email from the applicant to the education provider sent on 8 August 2017 stating that he was aware his enrolment was cancelled due to outstanding payment, yet said that he was unable to inform the university due to his sickness: CB51; and screenshots of 2 emails to the education provider dated 25 September 2017 and 6 October 2017 with the subject line “Important eCOE cancellation notification due to non-payment of fees …”: CB52-CB55.
The undated letter addressed to the visa officer states that the applicant concedes he is not enrolled in a full-time registered course as required by condition 8202(2)(a), but requests the delegate to exercise discretion not to cancel the visa. The Tribunal summarised the content of the letter as follows: CB142:
•he [the applicant] found it really hard to study the Masters in Professional Accounting as he did not have a background in accounting;
•he got really sick after coming to Australia and visited the doctor several times as well as consulting his home doctor over the phone in his home country. He informed his provider university about this;
•he was researching a suitable course to enrol in. He was still interested in doing a Masters Degree in Australia, but in a different field;
•he did not breach any other conditions of his visa;
•the purpose of his travel and stay in Australia was to study;
•he would be subject to detention and removal and his options would be limited to a Bridging E visa, allowing him time only to depart Australia; and
•his breach of condition 8202 was never intentional. He has been in constant contact with an education counsellor in his migration agent’s firm.
The applicant’s visa was cancelled by the delegate on 19 September 2018, pursuant to s 116(1)(b) of the Act for non-compliance with condition 8202 of the Regulations, and a notification of the decision was sent to the applicant by email: CB66-CB77. The delegate concluded that the grounds for cancelling the visa outweighed those against cancellation: CB77.
TRIBUNAL PROCEEDING
Subsequently, the applicant applied to the (then) Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision: CB78-CB79. On 24 September 2018, the applicant appointed a registered migration agent as an authorised recipient to receive and respond to written communication on behalf of the applicant: CB91. The Tribunal acknowledged the review application on 26 September 2018: CB93-CB95, and attached an ‘Information for migration review applicants – MR Division’ factsheet: CB98-CB101. On 4 February 2019, the Tribunal invited the applicant to attend a hearing scheduled for 7 March 2019 to give evidence and present arguments relating to the issues in his case: CB103-CB105. That correspondence also attached an ‘Information about hearings – MR Division’ factsheet: CB106-CB109, and requested the applicant to complete and return an enclosed ‘Response to hearing invitation – MR Division’ form to confirm his attendance at the hearing, and to provide the Tribunal with any additional or new information which the applicant might wish the Tribunal to consider: CB110-CB112.
In response to the Tribunal’s correspondence, the applicant’s migration agent provided the Tribunal a letter dated 28 February 2019 written on behalf of the applicant: CB118-CB121. The letter reiterates the claims raised in the earlier mentioned undated letter to the delegate as attached to the correspondence dated 5 July 2018, and raised further claims requesting the Tribunal to exercise discretion to remit the matter to the Department. The Tribunal summarised the further claims as follows: CB143:
•it is very important for the applicant to complete his masters before returning to his home country;
•he suffered illness, had issues with his back and visited a Chiropractic clinic a few times;
•the applicant has done some research and is interested in completing a Masters Degree in Australia but in a different field; and
•considerable weight should be placed on the fact that ‘the applicant is in constant touch with an Education Counsellor in (his agent’s) firm and they have been working together to get him enrolled in a registered course for the 2019 intake’.
The applicant attended the scheduled hearing before the Tribunal where he was assisted by his migration agent and an interpreter in the Sinhalese and English languages: CB128. The Tribunal informed the applicant that it had information, namely the applicant’s PRISMS record, which it considered would be the reason or part of the reason for affirming the decision under review and permitted the applicant to seek an adjournment if required before responding. The applicant sought an adjournment to procure evidence of enrolment in a master’s degree course in the areas of hospitality and tourism. The applicant was given a one-week adjournment. On 14 March 2019, the applicant’s migration agent sent the Tribunal a written submission on behalf of the applicant, advising the Tribunal that the applicant did not lodge a partner visa application and that it should consider this circumstance in exercising its discretion to remit the case to the Department: CB131-CB133. The applicant did not provide evidence of enrolment or efforts to obtain enrolment in any degree: CB141.
By its decision made on 18 March 2019, the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa: CB140-CB146. The applicant was notified of the Tribunal’s decision on 20 March 2019 by email transmission: CB134, and was provided with a copy of its Statement of Decision and Reasons (Decision) and an ‘Information about decisions – MR Division’ factsheet: CB137-CB146.
At [1]-[15] of the Decision, the Tribunal summarised the application under review and the relevant student visa criteria by reference to ss 116(1)(b), 359AA of the Act and condition 8202(2)(a) of Sch 8 to the Regulations. The Tribunal dealt with the question whether the applicant had complied with condition 8202, concluding – based on the applicant’s admission that he had not been enrolled in a course of study in Australia since September 2017 – that the applicant had not complied with condition 8202(2)(a). At [16]-[46], the Tribunal set out its consideration whether to cancel the applicant’s student visa.
At [16] of the Decision, the Tribunal notes that neither the Act nor Regulations specify matters that must be considered in the exercise of the discretion whether to cancel a visa once non-compliance with a condition has been established. The Tribunal records that it had regard to the circumstances of the case, addressing the applicant’s evidence; his written submissions and response to the Notice; his viva voce evidence given during the hearing; and a number of matters set out in the Department’s Procedures Advice Manual (PAM3) – ‘General visa cancellation powers’ the Tribunal considered relevant to the applicant’s application.
The Tribunal appears to have explored the applicant’s circumstances during the hearing, querying:
(a)his intentions and purpose of stay in Australia; why the applicant did not return to Sri Lanka if – as the applicant stated in the hearing – he lacked motivation for the course, did not want to complete the degree, and was suffering from a debilitating back problem: Decision at [19];
(b)why he did not find employment in his home country to put his skills into practice as he was well into his 30’s; had been on several student visas since 2009; and holds an MBA and a Diploma of Management and Leadership from the United Kingdom: Decision at [19];
(c)whether he had any labour market statistics or research reports showing that job prospects for graduates holding his qualifications are limited to support the applicant’s claim that his employment prospects in Sri Lanka are limited and so needs a more specialised qualification: Decision at [20];
(d)why the applicant did not comply with condition 8202; contact the Department regarding a possible change of course; or leave the country: Decision at [23]; and
(e)if the applicant’s purpose to stay in Australia was to obtain a master’s degree, why he had not applied himself more diligently to his course; why he had not enrolled in another course while he still held his student visa; and why he started investigating possible courses only after being advised to by his representative: Decision at [24].
The Decision records that during the hearing the applicant also gave the following evidence:
(1)he lacked motivation and aptitude for the course, decided that he did not want to complete the MPA, and was suffering from a debilitating and recurring back problem: Decision at [19];
(2)he did not return to Sri Lanka because his employment prospects are limited and he requires a more specialised qualification; however, he had no documentary evidence to corroborate this: Decision at [20];
(3)the purpose of his further stay in Australia was to obtain a Masters in Hospitality: Decision at [21];
(4)he tried to enrol in a relevant course only since being advised by his migration agent, and that he obtained the services of a migration agent only after he received the Notice. The applicant’s representative advised in the hearing that the applicant’s efforts have been unsuccessful because his Bridging E visa was cancelled: Decision at [22];
(5)he acknowledged he signed a declaration at the time of the application in which he confirmed he understood the conditions attached to his visa; he knew that it was his responsibility to remain aware of and to comply with the conditions of his visa; and he knew that he was supposed to contact the Department regarding any significant change of circumstances: Decision at [23];
(6)he did not comply with condition 8202 nor contact the Department of any change of circumstances as “he believed that there would not be any consequences for his visa and stay in Australia following the cancellation of his enrolment because there would be no actual enforcement of his compliance with his visa conditions including condition 8202” and that “he was surprised to receive his [Notice] and decided to engage a migration agent”: Decision at [23];
(7)he provided evidence that he attended a chiropractic clinic 11 times within the 3 months of August to October 2017 for his back pain; he approached his provider about his back pain and that the provider proceeded to cancel his enrolment. He acknowledged that “his enrolment cancellation was for the reason stated on his PRISMS record, the non-payment of tuition fees, rather than non-attendance through illness”: Decision at [25];
(8)he acknowledged he did not seek to defer his studies on illness or compassionate grounds; he had no evidence of a hospital stay nor any evidence of medical reports to certify that he was unfit to attend class or study; and he did not contact the Department regarding the change of circumstances as he did not think there would be any actual enforcement: Decision at [26]; and
(9)the last time he attended a class as a student in Australia was in June 2017, and that he did not attempt to enrol in another course of study until he was advised to do so by his migration agent: Decision at [27].
In considering the applicant’s evidence and the circumstances in which the applicant ceased to be enrolled in a registered course of study, the Tribunal:
(1)acknowledged that the applicant attempted to obtain enrolment in another course of study; however, it did not accept – on the vague and general claims made during the hearing – that his employment and remuneration prospects would be enhanced if he studied a master’s degree in hospitality to warrant the time and expense involved: Decision at [28];
(2)considered that the applicant is seeking to enrol in a course of study to remain in Australia, and did not accept that he had a compelling need to remain in this country: Decision at [29];
(3)accepted that apart from condition 8202, the applicant complied with his visa conditions; however, the applicant’s period of non-enrolment – being 18 months – is significant: Decision at [32];
(4)was not satisfied that the applicant would suffer any financial detriment if he returned to his home country, to which the Tribunal notes that when the applicant returned to Sri Lanka in 2015 and 2016, he was employed in his uncle’s gem export business. The applicant did not proffer any claim that he would suffer psychological or emotional hardship if his visa was cancelled: Decision at [33]-[34];
(5)noted that the applicant’s enrolment was cancelled following non-payment of his second semester fees; the applicant did not believe there would be any enforcement action; and his representative stated that the applicant was naïve and ignorant about Australia’s migration system: Decision at [36];
(6)accepted that the applicant responded to the Notice within the specified time; however, at no time did the applicant contact the Department regarding his change of circumstances: Decision at [38];
(7)found there would be no consequential cancellations under s 140 of the Act: Decision at [40];
(8)noted that if the applicant’s visa were cancelled, he would have limited options to apply for other visas, and could be subject to a 3 year ban from being granted another temporary visa; however, the Tribunal did not consider these sanctions unreasonable as the applicant expressed no interest in applying for other visas in Australia: Decision at [41];
(9)noted that – based on the applicant’s oral evidence – he has no reason to fear returning to Sri Lanka: Decision at [43]; and
(10)noted that the applicant provided no medical evidence for his upper back and shoulder pain to certify that he was unfit to attend class or study for a period: Decision at [45].
The Tribunal ascribed minimal weight in favour of the applicant to the first six and eighth matters described above. It ascribed no weight to the seventh and ninth matters and ascribed little weight in favour of non-cancellation to the tenth matter: Decision at [30], [32], [35], [37], [39], [40], [42], [44], [46].
The Tribunal was satisfied, having regard to the totality of the considerations it identified, that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa, and concluded that the applicant’s visa should be cancelled: Decision at [48]. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s student visa: Decision at [49].
PROCEEDING IN THIS COURT
By application filed on 18 April 2019, the applicant applied to the (then) Federal Circuit Court of Australia for review of the Tribunal’s decision. The grounds of application are as follows (reproduced verbatim):
1.The Tribunal failed to act according to substantial justice and merits of the case, and/or failed to act in a way that is fair and just.
2.The Tribunal misunderstood or misapplied the law or otherwise failed to rely on the relevant facts or information before it.
3.The Tribunal Member failed to place the appropriate weight on the specific case circumstances such as the extenuating circumstances of my case such as my health issues.
4.The Tribunal failed in its decision to properly consider the compelling circumstances that exist and the hardship that would result from my removal.
5.The Tribunal Member failed to give appropriate weight to highly relevant facts and failed to consider whether the breach of the condition occurred due to the extenuating circumstances beyond my control.
6.The Tribunal Member failed to consider the specific case circumstances such as an Australian qualification which would allow me to have an edge over the competition in my home country especially as the hospitality industry is a growing industry in Sri Lanka.
7.The Tribunal Member incorrectly assessed whether any potential administrative sanctions were reasonable as opposed to assessing the legal consequences that would result if my visa is cancelled.
The applicant also filed an affidavit: Exhibit A1, in which he deposed to matters which in substance repeat or particularise some of, or add to, the applicant’s grounds above.
CONSIDERATION
For the reasons which follow, neither the review grounds raised by the applicant nor the matters to which he deposes in his affidavit establish that the Tribunal’s decision is attended by jurisdictional error.
Before turning to consider the grounds of review set out in the application and those found in the applicant’s affidavit, I should observe that during the hearing before me I took time to explain to the applicant the limits of the Court’s function in judicial review applications, noting that the Court does not undertake a merits review. I also explained that in judicial review proceedings the Court’s function is to examine the Tribunal’s decision and process for legal or jurisdictional error and I gave the applicant examples of the kinds of errors that might constitute jurisdictional error. In exploring the review grounds set out in the application, the applicant said he had not prepared the review grounds and did not understand the grounds. The applicant was also not able to articulate, beyond expressing dissatisfaction with the outcome and wanting a further chance to enrol in further study, any error the Tribunal had made.
Ground 1
By ground 1, the applicant contends the Tribunal failed to act according to substantial justice and merits of the case and/or failed to act in a way that is fair and just. Paragraph [10] of his affidavit repeats the contention and adds that he does not believe the Tribunal gave him a fair hearing and says the decision was unreasonable.
The applicant does not explain nor particularise how the Tribunal acted in a way that was unfair or unjust. The delegate’s decision, the subject of the Tribunal’s review, was a Part 5-reviewable decision and so the Tribunal’s procedural fairness obligations were as outlined in Div 5 Part 5 of the Act (as then in force) and there is nothing in the materials suggesting the Tribunal failed to meet the obligations. As earlier noted, the Tribunal invited the applicant to attend a hearing scheduled for 7 March 2019 to give evidence and present arguments. It gave him an ‘Information about hearings – MR Division’ factsheet. The Tribunal invited the applicant to provide it with any additional or new information which he might wish the Tribunal to consider. At the scheduled hearing, the Tribunal gave the applicant particulars of the PRISMS information as required by s 359AA (as then in force) and facilitated a weeklong adjournment to enable the applicant to respond and to provide the Tribunal with evidence of his enrolment or efforts to enrol in a master’s degree course in hospitality. At the resumed hearing, the applicant gave evidence and presented arguments with the assistance of a migration agent and an interpreter. The Decision records the Tribunal asking the applicant a serious of questions and seeking clarification of matters relevant to its consideration whether to cancel the applicant’s visa and the applicant’s responses. There is no evident procedural fairness error.
As to the contention that the Tribunal’s decision was unreasonable, again the applicant does not particularise nor explain why he says the Tribunal’s decision is affected by legal unreasonableness. It may be accepted that a decision is attended by jurisdictional error if it is “illogical, irrational or unreasonable”. Judicial review has commonly relied on unreasonableness to set aside a discretionary decision because the impugned decision "is so unreasonable that no reasonable authority could ever have come to it" or where a decision "which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful": see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [123], per Crennan and Bell JJ; Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35 per Brennan J; East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission [2007] HCA 44; 233 CLR 229 at 250, [80] per Gummow and Hayne JJ; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230.
In the context of a statutory tribunal a “requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of the exercise of statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power": see Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26].
In the instant case, the Tribunal identified the various matters it considered relevant to the exercise of the discretionary decision whether to cancel a visa once the breach of a condition had been established (here by admission); considered the evidence related to those matters; made factual findings; and set out rational reasons for the findings and for the weight it ascribed to the various matters. There is nothing in the material suggesting the Decision or any aspect of it borders on legal unreasonableness.
Ground one and the attendant allegations in the applicant’s affidavit are therefore not made out.
Ground 2
By ground 2, the applicant contends that the Tribunal misapplied the law or otherwise failed to rely on the relevant facts or information before it. Again, the applicant did not particularise this ground, and it is not apparent how the Tribunal failed in this regard. The Tribunal identified the provisions of the Act and Regulations relevant to the matter under consideration. It correctly noted that the power to cancel the applicant’s visa in circumstances where he had not complied with the enrolment condition was discretionary and that the statute did not set out any mandatory considerations in the exercise of the discretion conferred. The Tribunal noted that it should consider all the relevant circumstances. It proceeded to identify those circumstances or considerations, how each was relevant and made findings in respect of each.
No jurisdictional error is disclosed by ground two.
Ground 3
By ground 3, the applicant contends that the Tribunal member failed to place appropriate weight on the applicant’s extenuating circumstances, namely his health issues. Paragraphs [16]-[17] of the applicant’s affidavit allege the Tribunal failed to consider or overlooked any claims made, or evidence given. The applicant says the Decision shows the Tribunal failed to properly consider and give appropriate weight to his claims that he was suffering from a health condition at the time. He alleges the Tribunal failed to consider whether the breach of the condition occurred due to the extenuating circumstances beyond his control and erred in assessing the evidence of his illness. The applicant says that the Tribunal recognised he produced evidence of chiropractic sessions attended at least 11 times in 3 months, but proceeded to state that there was no evidence certifying that the applicant was unfit to attend classes.
As the first respondent correctly notes, the Decision records that the Tribunal clearly had regard to the applicant’s health issues, being his upper back and shoulder pain at [25]-[26]. The Tribunal acknowledged that the applicant provided evidence that he attended a chiropractic clinic; however, the applicant provided no medical evidence that he was unfit to attend class, and the applicant acknowledged that “he did not seek deferment from his course provider on illness or compassionate grounds”: Decision at [26]. During the hearing before me, the applicant accepted that the Tribunal correctly recorded that he had not provided any medical evidence or certificate setting out that he was unfit for any particular period to attend classes.
Consequently, it was plainly open to the Tribunal to conclude that there was no medical evidence about the applicant’s capacity to attend class, and given the lack of evidence, it was plainly open to the Tribunal to ascribe little weight in favour of not cancelling the visa to the applicant’s claim that his back and shoulder pain contributed to his failure to attend his course of study, which led to the cancellation of his enrolment as it did at [45]-[46] of the Decision. In any event, as the applicant accepted before the Tribunal, his enrolment in the MPA was cancelled because he did not pay the course fees, not because he did not attend classes: Decision at [25].
Ground 3 and the associated assertions in the applicant’s affidavit does not disclose jurisdictional error and so fails.
Ground 4
By ground 4, the applicant contends that the Tribunal did not consider the compelling circumstances and hardship arising from cancellation of the visa. At paragraphs [23]-[24] of his affidavit, the applicant asserts the Tribunal wrongly assessed the hardship he would suffer as is evident by its finding that the applicant was unable to quantify any financial detriment he would suffer by not completing the degree. The applicant asserted that as he submitted to the Tribunal, he sought to obtain a qualification in a master’s in hospitality as the hospitality field has increased significantly in Sri Lanka due to an increase in tourism. He says the Tribunal failed to take these submissions into account. He says the Tribunal stated that at times when he had returned to Sri Lanka, he was employed in his uncle’s gem export business. The applicant says the Tribunal made the wrong assessment in this regard and shows that it was not listening to his submissions.
These contentions are not made out on the face of the Decision. The Tribunal noted at [20] that the applicant argued that his employment prospects in Sri Lanka are limited and that he needs a more specialised qualification. It noted that he could not produce any evidence to support his argument, such as labour market statistics or research reports showing job prospects for graduates holding an MBA and a Management Diploma from the UK are limited in Sri Lanka or that he had unsuccessfully applied for two positions in Sri Lanka. It also noted the applicant could not produce any evidence suggesting that his employment and remuneration prospects in Sri Lanka would be significantly enhanced with a master’s degree in hospitality from Australia.
The Tribunal also considered the degree of hardship that may be caused to the applicant if his visa was cancelled at [33]-[35] of the Decision, concluding the applicant was unable to quantify the financial detriment he claimed he would suffer by not obtaining a hospitality master’s degree in Australia. Though the applicant complains about this finding, he does not point to any material to establish the finding was wrong. There is nothing in the CB, nor has the applicant produced any material, showing, contrary to the Tribunal’s finding, that he quantified the financial detriment claimed. At [20] of the Decision, the Tribunal noted the applicant’s contention that obtaining a master’s in hospitality would assist the applicant’s employment prospects in Sri Lanka because the hospitality field had increased significantly due to an increase in tourism. But beyond this contention, no evidence was produced to support it – a point also noted at [20]. The applicant did not explain how the Tribunal noting that when he returned to Sri Lanka in 2015 and 2016 before travelling to Australia, that he was employed in his uncle’s gem export business was wrong or how it shows the Tribunal was not listening to his submissions. Ground 4 fails.
Ground 5
By ground 5, the applicant contends that the Tribunal failed to give appropriate weight to highly relevant facts and failed to consider whether the breach of the visa condition occurred due to extenuating circumstances beyond the applicant’s control. At paragraphs [12]-[15] of his affidavit the applicant claims the Tribunal erred because it was more focused on his cancelled enrolment instead of the evidence that he provided. He says he asked the Tribunal to consider his extenuating circumstances, but the Tribunal focused on his failure to complete the MPA. He says the Tribunal wrongly focused on his failure to obtain enrolment and should have focused on the extenuating circumstances which resulted in the breach. The applicant says he informed the Tribunal that he had been attempting to enrol in another course since his enrolment was cancelled but it had been difficult because his visa had been cancelled. He says the Tribunal did not consider the difficulty of a student trying to get enrolment when the student visa had been cancelled and he was on a bridging visa.
At [36]-[37] of the Decision, the Tribunal considered the circumstances in which the ground for cancellation of the applicant’s visa arose. It noted that the applicant’s enrolment was cancelled because he failed to pay the second semester fees. The Decision records the applicant’s acknowledgement during the hearing that the circumstances in which his course was cancelled were not beyond his control and that he knew enrolment in a course of study was a condition of his visa, but did not think there would be any enforcement action. Consequently, the Tribunal ascribed minimal weight in favour of the applicant in respect of this consideration. This seems plainly open. The applicant does not assert that these acknowledgements as recorded were not made. At [25]-[26] and later at [45] of the Decision, the Tribunal considered the applicant’s claimed illness as a contributing factor but noted the absence of medical evidence certifying his illness or that he was unfit to attend classes, and the absence of any application to the course provider of a deferral of study on illness or compassionate grounds. It is in these circumstances that the Tribunal gives little weight in favour of non-cancellation of the visa. Again, this seems plainly open. The applicant does not identify any other “extenuating circumstance” he says was not considered or to which weight or sufficient weight was not ascribed.
The first respondent also correctly observes that the applicant’s contentions at paragraphs [12]-[15] of his affidavit are contrary to the applicant’s position before the Tribunal. First, there is the applicant’s acknowledgement (which as noted is not here disputed) that “the circumstances of his course cancellation were not beyond his control”. Second, the applicant’s contention that informed the Tribunal that he had been attempting to enrol in another course since his enrolment was cancelled is contrary to that which is recorded at [22] of the Decision, namely that the applicant only tried to enrol in other courses after being advised by his migration agent, which he appointed after receiving the Notice. The applicant does not say that [22] of the Decision is wrong. The Tribunal was entitled to deal with the case put before it. It does not make a jurisdictional error by not addressing matters that, although now advanced, where not then put to the Tribunal. Therefore, ground 5 fails.
Ground 6
By ground 6, the applicant contends that the Tribunal failed to consider specific case circumstances such as an Australian qualification, which would give the applicant an edge over the competition in Sri Lanka. At paragraphs [20]-[22] of the applicant’s affidavit, he asserts in furtherance of this ground, that the Tribunal failed to take into account the fact that he wanted to complete a master’s in hospitality because there are job opportunities in that field in Sri Lanka and the hospitality field is increasing due to the expansion of tourism. He said that his experience in hotels in Australia and the UK led him into this field along with the increased demand in his home country. The applicant asserts the Tribunal wrongly assessed his intentions and failed to consider the evidence in support of his reasons for pursuing the master’s degree. The applicant asserts that the Tribunal concluded that he had provided limited evidence that his remuneration prospects in Sri Lanka would be enhanced such as to warrant the expense and time involved. He contends the Tribunal misled itself by asking whether the expense and time involved in completing the course outweighed the increased opportunities for the applicant.
Contrary to the applicant’s contention, the Tribunal plainly considered the applicant’s submissions about these matters at [20]-[21] of the Decision, but noted the absence of objective evidence to support the submissions. However, as the Tribunal explained at [28], although acknowledging:
. . . the applicant has attempted to obtain enrolment in another course of study, and that he has provided an explanation for his interest in a Masters Degree in Hospitality, namely his work in hotels and the growth of tourism in Sri Lanka . . . [it did] not accept on the evidence provided, namely the vague and general claims made at hearing, that his employment and remuneration prospects in Sri Lanka would be enhanced with a Masters Degree in Hospitality such as to warrant the expense and time involved.
This was a finding open to the Tribunal. Ultimately, the Tribunal concluded at [29] of the Decision, “that the applicant [was] seeking to enrol in a course of study in order to stay in Australia, rather than seeking to stay for the purpose of study, and does not accept on the evidence provided that he has a compelling need to remain in Australia”.
As the first respondent points out, ground 6 and paragraphs [20]-[22] of the applicant’s affidavit merely express disagreement with the Tribunal’s decision on the merits. Ground 6 does not disclose jurisdictional error and so fails.
Ground 7
By ground 7, the applicant contends the Tribunal incorrectly assessed whether any administrative sanctions were reasonable as opposed to assessing the legal consequences if the visa was cancelled. And by paragraph [25] of the applicant’s affidavit, he asserts that his representative made submissions on the consequences if the visa was cancelled, but the Tribunal merely said that it did not consider these administrative sanctions unreasonable. The applicant says the Tribunal should have considered the cumulative impact of his circumstances and relevant facts instead of assessing whether the administrative sanctions were unreasonable.
I agree with the first respondent’s contention that ground 7 is misconceived. The Tribunal considered the mandatory legal consequences at [41] of the Decision. The Tribunal’s assessment that the consequences that follow cancellation of a visa were not unreasonable was open and explains why the Tribunal ascribed the consideration minimal weight in favour of the applicant. Moreover, contrary to the applicant’s assertion, the Tribunal considered the cumulative effect of all of the circumstances identified as is clear from [47]-[48] of the Decision.
For completeness, at paragraph [11] of the applicant’s affidavit, the applicant says the Tribunal failed to understand, thereby failed to genuinely, properly and realistically consider his evidence. Apart from paragraphs [18]-[19] of the affidavit, the particulars of any evidence said to have been, misunderstood, overlooked or not considered is not identified. At paragraphs [18]-[19] the applicant deposes as follows (reproduced verbatim):
18. I believe the Member erred by stating that I was in my thirties had already completed two courses a Master of Business Administration and a Diploma of Management and Leadership from the UK and had not yet returned to my country and put into practice my skills.
19. Had the Tribunal Member listened to the oral evidence she would be aware that I had made attempts to obtain employment in my home country. The very fact that I have been unable to is evident that I need the specialised qualification. Further, the reasoning of the Member shows the failure to consider the evidence presented in my case as I had submitted to the Member that obtaining enrolment was increasingly difficult for me following the cancellation of my visa and being placed on a bridging visa.
These paragraphs mischaracterise that which is set out in the Decision at [19]-[20]. Relevantly at [19], the Tribunal records an inquiry it made of the applicant during the hearing as follows:
The Tribunal put to the applicant that he already had a Masters Degree, namely a Masters of Business Administration (MBA) as well as a Diploma of Management and Leadership from the United Kingdom (UK), was in his thirties and had been outside of his home country on Student visas since 2009. The Tribunal asked the applicant why he did not return to the support of his family, find employment and put into practice the skills and qualification he already had, (sic)
At [20], the Tribunal records the applicant’s response “that his employment prospects in Sri Lanka are limited; that he needs a more specialised qualification”. As earlier noted, the Tribunal did not accept this contention because of the absence of objective evidence or data to support it. Similarly, the applicant’s assertion that he had applied unsuccessfully for two positions in Sri Lanka was not supported by objective evidence. Thus, the Tribunal considered this evidence, which amounted to assertions made by the applicant, but did not accept the assertions because of a lack of objective evidence supporting them. This was plainly open to the Tribunal.
Finally, dealing with the applicant’s assertion at paragraph [26] of his affidavit that the Tribunal erred in apportioning weight to the considerations and failed to consider his extenuating circumstances altogether, the weight ascribed by the Tribunal to the considerations it identified is generally a matter for the Tribunal. In any event, in reviewing those matters it seems to me that the weight ascribed is rationally explained. As to the Tribunal’s consideration of any extenuating circumstances, as earlier explained, those raised by the applicant were identified and considered by the Tribunal. It explained in a rational and logical way, why it did not accept the circumstances raised and why it ascribed the weight to each the Tribunal identified. As already noted, the Tribunal considered the applicant’s “circumstances as a whole” and determined that the visa should be cancelled for the reasons that it gave. No jurisdictional error is disclosed.
As the applicant was unrepresented before the Court, I have reviewed the Tribunal's decision and the material in the CB filed by the first respondent, with an eye to identifying jurisdictional error beyond merely dealing with the grounds of review the applicant advanced. I have not identified any arguable case of jurisdictional error.
The judicial review application should be dismissed.
The first respondent sought an order for costs in the sum of $6,400.00 in the event the applicant’s judicial review application was unsuccessful. The applicant did not advance any cogent reason why in that event a costs order in the amount sought should not be made. Considering the history of this matter, the result, the work involved as disclosed from the filings and that the amount sought is less than the amount fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the applicant should pay the first respondent’s costs fixed in the amount of $6,400.00.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 12 December 2024
0
4
3