Geldenhuys v Minister for Immigration - [2010] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GELDENHUYS v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 473

MIGRATION – Migration Review Tribunal – subclass 457 Business Long Stay visa – cancellation – whether relevant matters considered – whether decision so unreasonable, no reasonable decision maker could have made it.

Migration Act 1958 (Cth), ss.116(1), 116(3), 425

Applicant:

FRANCOIS GELDENHUYS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 78 of 2010

Judgment of:

Riley FM

Hearing date:

27 April 2010

Date of Last Submission:

27 April 2010

Delivered at:

Melbourne

Delivered on:

8 July 2010

REPRESENTATION

Counsel for the Applicant:

Anthony Krohn

Solicitors for the Applicant:

Pinto Law Pty Ltd

Counsel for the Respondents:

Sharon Burchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The decision of the Migration Review Tribunal handed down on 22 December 2009 is set aside.
The matter is remitted to the Migration Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 78 of 2010

FRANCOIS GELDENHUYS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s subclass 457 (Business (Long Stay)) visa.
Section 116(1) of the Migration Act 1958 permits the first respondent to cancel a visa where, relevantly, any circumstances which permitted the grant of the visa no longer exist. In this case, the circumstances which permitted the grant of the applicant’s visa included the circumstance that the applicant was employed by his sponsor, Venture Ceramics. That employment was terminated on 28 April 2009.
The applicant accepted that the circumstances which permitted the grant of his visa no longer existed. The Tribunal accepted that this was not a case in which prescribed circumstances under s.116(3) of the Act made cancellation mandatory. That being so, the question before the Tribunal was whether, as a matter of discretion, the applicant’s visa should be cancelled. The Tribunal concluded that the visa should be cancelled and affirmed the decision under review.

Background

The applicant is a national of South Africa. He works as a dental technician. He arrived in Australia in April 2008 as the holder of a Subclass 456 Business (Short Stay) visa. The applicant had pre-arranged work here, but it did not suit him. Instead, he began to work for Venture Ceramics which sponsored him for a Business (Long Stay) visa. The applicant was granted such a visa on 3 September 2008. His wife, who had remained in South Africa, sold their house there in September 2008. She came to Australia with the couple’s children at the end of September 2008. The children are seven and four years old.
By letter dated 27 April 2009, Venture Ceramics terminated the applicant’s employment with two weeks notice: CB50. The reason for the termination was the effects of the global financial crisis, and not any issue about the applicant’s work. Venture Ceramics notified the department of the termination on about 30 April 2009.
By unsigned letter dated 6 April 2009, Pearl Healthcare Limited offered the applicant another position: CB 40. The offer proposed a starting date of 18 May 2009: CB48. However, the applicant told the Tribunal in oral evidence that he found employment with Pearl in the first few days of June 2009.
The applicant also told the Tribunal that he telephoned the department after his employment was terminated. He said he was told that he had 60 days to find new employment. The applicant said that, in that time, he moved house, but forgot to tell the department his new address. Consequently, he did not receive a notice of intention to cancel his visa dated 16 June 2009.
The department sent the applicant by email on 10 August 2009 another notice of intention to cancel his visa. The applicant said he did not check his emails often and did not receive the notice. His visa was cancelled on 24 August 2009.
The applicant’s migration agent submitted a document to the Tribunal which indicated that on 20 June 2009 the applicant had signed a new visa application with his new employer, Pearl, as his sponsor. Ms Nicola Earl, the Human Resources manager of Pearl, gave evidence that she had expected Pearl’s then migration agent to lodge the application in June 2009. However, the then migration agent failed to do so. Ms Earl said Pearl felt partly responsible for the applicant’s visa being cancelled, because Pearl’s migration agent had not lodged the application in time.
Ms Earl said that Pearl was very keen to keep the applicant in its employment. Ms Earl said that it was very difficult to find a dental technician of the applicant’s calibre. She said she had placed 26 advertisements in seek.com in the previous six months and had applications from only two Australian-based people.[1] Ms Earl said that if she had 20 more people like the applicant, she could give them work.[2] She said that, if the applicant had to go back to South Africa to reapply for a visa:
We would then be responsible for covering him to go back to South Africa for however long he needs to stay, and we would then re-sponsor him back in. [3]
[1] Transcript of Tribunal hearing page 25 line 8
[2] Transcript of Tribunal hearing page 25 line 38
[3] Transcript of Tribunal hearing page 28 line 37

The delegate’s reasons for decision

The delegate appears to have cancelled the applicant’s visa because:
a)a circumstance which permitted the grant of the applicant’s visa no longer existed, namely, his employment with Venture Ceramics;
b)the notice of intention to cancel the visa dated 16 June 2009 was returned to the department unclaimed;
c)the notice of intention to cancel the visa sent by email on 10 August 2009 was apparently successfully transmitted;
d)the applicant had not lodged a further visa application or contacted the department; and
e)the delegate was unable to assess whether cancellation of the applicant’s visa would lead to any hardship to the applicant or his family, or would result in Australia breaching its obligations under any international agreements, such as the Convention on the Rights of the Child.

The Tribunal’s reasons for decision

When the matter came before the Tribunal, the applicant, through his migration agent, made extensive submissions concerning the matters that the delegate had been unable to assess, being the matters referred to in paragraph 11.e above.
The Tribunal considered that there were no matters specified in the Act or the Migration Regulations 1994 that the Tribunal was required to consider in exercising its discretion to affirm or overturn a cancellation decision. However, the Tribunal considered that it should take into account any matters raised by the applicant, any policy guidelines and any other relevant considerations.
In relation to policy guidelines, the Tribunal noted at paragraph 9 of its reasons for decision that:
The Department’s PAM3 ‘General cancellation powers’ at [32.2] lists the following matters that, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under s.116 of the Act:
a.the purpose of the visa holder’s travel to and stay in Australia
b.if cancellation is being considered because of a breach of visa condition (and cancellation is not mandatory) – the reason for, and extent of, the breach. As a rule, a visa should not be cancelled where the breach of visa condition occurred in circumstances beyond the visa holder’s control
c.the degree of hardship that may be caused to the visa holder and any family members
d.the circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
e.the visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)
f.      if cancellation is being considered because of the circumstances set out in r.2.43(1)(la) – the range of mitigating, compassionate and compelling factors outlined in PAM3: Sch2Visa457
g.whether there are persons in Australia whose visas would, or may, be cancelled under s.140
h.whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, such as:
i.if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, the best interests of the children are to be treated as a primary consideration
ii.whether the cancellation would lead to removal in breach of Australian’s non-refoulement obligations - that is, removing a person to a country where the person faces persecution, death, torture, cruel, inhuman or degrading treatment or punishment
i.     if cancellation is being considered because a Student visa holder has breached condition 8202 (that is, on the basis of circumstances set out in r.2.43(2)(b) – whether the breach was due to exceptional circumstances beyond the visa holder’s control
j.     in relation to cancellation of a permanent visa, whether the visa holder has formed strong family, business or other ties in Australia any other matters raised by the visa holder.[4]
[4] For ease of reference, paragraph numbers have been added to identify each of the considerations.
The Tribunal did not expressly consider any matters under point b above, presumably because the cancellation was not being considered as the result of a breach of a visa condition. The Tribunal did not expressly consider matters under points f, i and j above, presumably because they did not apply. The Tribunal did not expressly consider matters under point g above, presumably because it considered that those matters were adequately considered under point c above. The Tribunal set out in its reasons for decision its observations under the other points listed in the policy guidelines as set out in paragraph 14 above.
The Tribunal concluded that the cancellation decision under review should be affirmed. However, the Tribunal’s reasoning process is not easy to discern. The structure of the reasons consists of a consideration of each of the matters set out in the guidelines that the Tribunal considered to be relevant, with an express indication in some areas of the weight to be given to the various matters, and then the conclusion that the delegate’s decision was to be affirmed. There is no explanation of how the various matters were balanced. Moreover, the weight that the Tribunal has stated that it gave to various factors, and the weight that it seems it implicitly gave to other factors, do not seem to lead to its conclusion.
More particularly, the Tribunal said at paragraph 45 of its reasons for decision that the interests of an Australian business to secure skilled labour that was not available domestically was “a significant and compelling factor” in deciding whether to cancel the applicant’s visa. Against that, the Tribunal said it placed “some weight” on its concern that the applicant had not been “forthcoming” with the Tribunal about when he found his new employer, Pearl. Otherwise, the Tribunal seemed to consider that the various matters it considered warranted little weight being given to them.

Ground 1

At the hearing before this court, the applicant abandoned paragraph (a) of the particulars of ground 1 of the further amended application filed on 1 April 2010. Consequently, ground 1 of the further amended application is:
The Tribunal fell into jurisdictional error in that it did not comply with its obligations under the law and did not accord procedural fairness to the applicant.
Particulars
b.The Tribunal at the hearing indicated that it could not draw any adverse conclusion from the applicant’s possible delay in communicating with the Minister’s Department, but in fact did attach adverse weight to this consideration in its reasons ([43] of the Tribunal’s Reasons).
The parties seemed to be in agreement that, under s.425 of the Act, the Tribunal was required to notify the applicant of any issue on which the decision would turn, if that issue was not obvious from the circumstances of the case generally. The parties also seemed to be in agreement that if the Tribunal had actually misled the applicant about the issues on which the Tribunal’s decision would turn, that would constitute a denial of procedural fairness.
The Tribunal noted in its reasons for decision that the departmental guidelines indicated that a relevant factor was the visa holder’s past and present behaviour towards the department. The Tribunal’s consideration of this matter as set out in its reasons for decision was as follows:
42.There is no evidence of adverse behaviour by the applicant in his dealings with the Department.
43.However, I have noted that in oral evidence to the Tribunal, the applicant stated that he telephoned the Department after his employment was terminated in the letter from Venture Ceramics dated 27 April 2009. He said that he was told by the Department that he had 60 days to find another sponsor. He said that he then found his current sponsor in the first few days of June 2009. The letter of offer of employment from his current sponsor is dated 6 April 2009 and the expected commencement date in the employment agreement was hoped to be in the week commencing 18 May 2009. It is reasonable to deduce from these dates that the applicant was aware of his new offer of employment and prospective new sponsor at the time he claims to have telephoned the Department. I also indicated during the hearing that the apparent little effort he made to remain in contact with the Department regarding the critical issue of his visa status in Australia is puzzling. It was difficult to understand that he did not check his emails for at least 14 days to see the second notice of intention to cancel his visa.
…
47.I have also had regard to the applicant’s oral evidence to the Tribunal regarding his contact with the Department sometime after 27 April 2009 and that he found his new sponsor and current employer sometime in early June 2009. As noted above, the information in the letter of offer of employment and the employment agreement with the current sponsor is inconsistent with his oral evidence. This raised some concern as to whether the applicant was forthcoming in his evidence to the Tribunal. I have placed some weight on this concern.
The applicant said at paragraph 30 of his written submissions that, in view of those passages, the Tribunal had clearly placed adverse weight on the applicant’s delay in communicating with the department. However, the applicant said that at the Tribunal hearing, the Tribunal told the applicant that it could not draw any adverse conclusion from the applicant’s delay in communicating with the department.
I do not consider that the applicant’s contention coincides with the facts. The Tribunal in paragraph 47 of its reasons placed weight on an inconsistency in the applicant’s evidence. That inconsistency concerned the date on which he found employment with Pearl. Documentary evidence suggested that he found the employment on or about 6 April 2009. The applicant’s oral evidence was that he found the employment in early June 2009.
In paragraph 43 of its reasons, the Tribunal said that it found “puzzling” the applicant’s lack of effort towards remaining in contact with the department. The Tribunal also said that it found it “difficult to understand” that the applicant had not checked his email for more than 14 days in August 2009. However, the Tribunal did not say that it placed weight on these matters. On the contrary, the Tribunal said very squarely in paragraph 42 of its reasons:
42.There is no evidence of adverse behaviour by the applicant in his dealings with the Department.
In the face of that statement, it would require something very clear to persuade the court that the Tribunal had taken into account against the applicant a matter that it said in its reasons for decision that it had not taken into account. Reading the Tribunal’s reasons as a whole, I do not consider that the Tribunal did place weight on the matters that it found “puzzling” and “difficult to understand”. I consider that these statements are best understood as observations made in passing. This ground is not made out.

Ground 2

Ground 2 of the further amended application is:
The Tribunal fell into jurisdictional error in that it failed to take account of relevant considerations or material.
Particulars
a.The Tribunal failed to take account of the negligence of the employer’s migration agent in not lodging the applicant’s application for a further visa in a timely manner.
b.The Tribunal regarded the matters set out in the Minister’s Procedures Advice Manual as relevant matters, but failed to take account of the fact that the breach of the condition on the applicant’s visa was outside the applicant’s control.
c.The Tribunal failed to take account of its reasons of the applicant’s claim that there had been homicides in the street where he lived in South Africa.
d.The Tribunal failed to take account of the material concerning the detailed progress of the applicant’s children in their education and formation in Australia.
e.The Tribunal failed to take account of the fact that the migration agent employed by the applicant’s employers was responsible for communication with the Department concerning the further application for the applicant’s visa, and the Tribunal thereby regarded it as adverse to the applicant that he had some delay in reading communications form the Department.
f.Obligations of Australia to the applicant’s children in relation to safety and education, whether under the international Convention on the Rights of the Child or generally.
g.The Tribunal failed to advert to the fact that if the applicant’s visa was cancelled, he was therefore unlawful, had no visa and would be obliged to depart Australia.
h.The Tribunal failed to advert to the fact that if the applicant’s visa was cancelled, he may suffer various disabilities under Australia’s migration law if he applied for any further visa.
At paragraph 8 of its reasons for decision, the Tribunal itself said, quite properly, that, in cancellation matters, the Tribunal has regard to any matters that the applicant raises as grounds for not cancelling the visa.
In relation to point a, concerning Pearl’s former migration agent’s negligence, the Tribunal noted in its summary of evidence at paragraphs 22 and 29 of its reasons for decision that:
22. … he completed forms for a new subclass 457 visa application and provided it to Pearl Healthcare to lodge. Ms Earl confirmed during the hearing that Pearl Healthcare had undertaken to lodge the application through a migration agent which the company uses.
29. Ms Nicola Earl gave further evidence that had the migration agent, then acting for Pearl Healthcare Limited lodged the applications as planned, the applicant would not be in the situation in which he finds himself. She said that she was advised by that migration agent at around the end of June that it would take six weeks for the applications to be processed, so on this advice, she had planned to check again in August. But she then heard from the applicant that his visa was cancelled and contacted the migration agent and learnt that the applications were not lodged. As she did not receive a satisfactory explanation, she contacted the current migration agent to act for Pearl Healthcare and proceed with the applicant’s application.

Under the heading, “Consideration of the Discretion”, the Tribunal said at paragraphs 45 and 46 of its reasons for decision:
45.The applicant and the Human Resources manager of his current employer, Ms Nicola Earl, gave evidence that he has an employment contract. Ms Earl gave oral evidence of the company’s need and desire to employ the skills of the applicant. In my view, the interests of an Australian business to secure skilled labour which is not available in the domestic labour market is a relevant factor in a matter such as the present case. I indicated to the applicant during the hearing that I consider the interests of an Australian business to be a significant and compelling factor in deciding whether to exercise the discretion to cancel the visa.
46.I have also considered the evidence by Ms Nicola Earl that the company feels partly responsible for the applicant’s circumstances which led to the cancellation of his visa. In particular Ms Earl stated that it is worthwhile and viable for the company to bear the costs which the applicant may incur if he were to apply for the visa from outside Australia. In this regard, I am not aware of conditions that would require the applicant to return to South Africa in order to apply from outside Australia.
It seems clear from paragraph 29 of its reasons for decision that the Tribunal was conscious that Pearl’s then migration agent had failed to lodge Pearl’s application to sponsor the applicant in June 2009, or, indeed, at any time before the applicant’s visa was cancelled on 24 August 2009. Although no one seems to have used the word negligence before the matter reached this court, it seems that the Tribunal was well aware of the argument that the unexpected failure of Pearl’s then migration agent to lodge the sponsorship application in a timely manner led to in the cancellation.
In its consideration of the issues at paragraph 46 of the reasons for decision, the Tribunal noted that Pearl felt partly responsible for the cancellation of the applicant’s visa. However, the Tribunal did not at that stage mention the contribution of Pearl’s former migration agent. That is presumably because the Tribunal considered that the conduct of Pearl’s then migration agent to be an insignificant matter.
However, that does not mean that the Tribunal failed to consider the negligent conduct of Pearl’s then migration agent. On the contrary, the Tribunal considered that conduct and determined that it was so insignificant that it did not need to be mentioned in its consideration of the facts. Accordingly, I am not persuaded that the Tribunal did fail to consider the issue of the negligence of Pearl’s then migration agent.
As to point b, concerning the breach of the visa condition being outside the applicant’s control, the reality is that this case did not concern the breach of a visa condition. The visa was not cancelled because of a breach of a condition, but primarily because a circumstance which had permitted the grant of the visa no longer existed.
As to point c, concerning homicides in the applicant’s own street in South Africa, the Tribunal noted in its summary of the evidence at paragraph 26 of its reasons for decision that the applicant had said that South Africa has the second highest record for homicides. In its consideration, in connection with the hardship that the applicant and his family might suffer if the visa were cancelled, the Tribunal said at paragraph 40 of its reasons for decision:
I have also had regard to the applicant’s evidence of the incidence of high crime in South Africa and that he had hoped to take his family, at least for the period of the visa, to the relatively safer environment which Australia offers. I accept his concern and desire in this regard.
The Tribunal did not specifically refer to homicides in the applicant’s own street. However, I have been unable to find any claim to that effect, in either the submission made by the applicant’s adviser (CB 32) or in the oral evidence to the Tribunal. The closest statement to that alleged appears at page 10 of the transcript of the proceedings before the Tribunal, where the applicant said:
… [South Africa] was becoming very violent, especially the area where we lived, we had a few incidences where there were people with automatic rifles firing in our streets, and I felt very unsafe …
The applicant did not say in that passage that there were homicides in his street. He said there were guns fired in his area. It seems to me that the Tribunal considered the evidence that it was given about the level of violence in South Africa.
As to point d, regarding the “detailed progress” of the applicant’s children’s “education and formation” in Australia, the Tribunal noted at paragraph 40 of its reasons for decision, in its consideration of the hardship faced by the applicant and his family if their visas were cancelled, that:
I have considered his evidence that his children are beginning to settle at school and in childcare in Australia. However given both children are very young, I have placed little weight on the submission relating to difficulties adapting to the environment in their home country after such a short time.
The children were aged seven and four years old. The older child was in prep grade and the younger one was in child care. They had been in Australia for about 15 months at the time of the Tribunal’s decision. The applicant provided a school report for the older child that showed that she was doing fractionally better than expected in all areas except reading and numbers, where she was doing a little worse.
It seems to me that the Tribunal did consider the material that was filed in relation to the children. It was an overstatement to describe that material as material concerning the children’s “detailed progress”.
In relation to point e, concerning the Tribunal failing to take into account that Pearl’s then migration agent was responsible for communicating with the department, and the Tribunal thereby regarded the applicant’s delay in communicating with the department as adverse, I have already concluded that the Tribunal did not regard the applicant’s delay in communicating with the department as adverse. Moreover, the Tribunal noted at paragraph 29 of its reasons that Pearl’s then migration agent had failed to lodge the sponsorship forms as planned. As already discussed, the Tribunal was aware of that issue and gave it the weight it considered appropriate.
In relation to point f, concerning Australia’s obligations in relation to the safety and education of the applicant’s children under the Convention on the Rights of the Child or generally, the applicant did not state to the Tribunal or this court which particular obligations under that Convention or generally might apply in the present case. In any event, the Tribunal noted that the departmental guidelines required the best interests of the children to be treated as a primary consideration. The Tribunal noted at paragraphs 26, 38, 39, 40 and 44 of its reasons for decision that:
26.In relation to the hardship which would be suffered by the applicant and his family, the applicant said that in coming to Australia, they spent more money than they had expected. If he were to sell everything he has in Australia, it would provide funds only to return to South Africa. Furthermore, the unemployment rate in South Africa is around 25% with an additional disadvantage to the applicant of the country’s ‘affirmative action’ policy which favours other ethnic groups. The applicant added that South Africa has the second highest record of homicide.
38.I have had regard to the submission in writing and oral evidence of the hardship which may be caused to the applicant and his family members. The financial hardship is said to be in part because the applicant sold the family property in South Africa, that it would also be difficult to re-establish a livelihood in his home country due to the applicant’s financial circumstances having been further adversely affected because his employment was terminated some seven months after he commenced. The applicant also stated that unemployment in South Africa is around 25% with a policy of affirmative action which would further disadvantage his employment prospects.
39.The applicant also indicated that he was fully cognisant of the temporariness of the visa and that a contract is capable of being terminated within the life of the contract. Indeed the current employment agreement he presented to the Tribunal contains terms enabling either party to terminate the agreement by a four week notice. While I am sympathetic to the applicant having suffered financial difficulty, and I have placed some weight on this claim, having regard to the short time he was in Australia when his first job was made redundant, I am not satisfied that the financial difficulty is a strong factor.
40.I have also had regard to the applicant’s evidence of the incidence of high crime in South Africa and that he had hoped to take his family, at least for the period of the visa, to the relatively safer environment which Australia offers. I accept his concern and desire in this regard. I have considered his evidence that his children are beginning to settle at school and in childcare in Australia. However given both children are very young, I have placed little weight on the submission relating to difficulties adapting to the environment in their home country after such a short time.
…
44.In relation to the above, I have considered the result of cancellation of the applicant’s visa may have on his wife and two small children. The central relevant international agreement relating to the best interests of the children is the Convention on the Rights of the Child. In this context, the best interests of the children would be to remain with their parents. The cancellation of the applicant’s visa would not result in separating the children from their parents. In relation to Australia’s non-refoulment obligation, the central international agreement is the Refugees Convention. The applicant confirmed during the Tribunal hearing that he is not seeking to make a claim which would engage Australia’s obligation.
In view of these passages, it seems to me that the Tribunal did consider Australia’s obligations in relation to the children, at least to the extent that the applicant actually raised those matters.
As to point g above, regarding the applicant being obliged to depart Australia if his visa were cancelled, it seems to me that the Tribunal was thoroughly aware of this matter and gave it the consideration it thought the point warranted. The Tribunal said at paragraph 46 of its reasons for decision that:
46.… In particular Ms Earl stated that it is worthwhile and viable for the company to bear the costs which the applicant may incur if he were to apply for the visa from outside Australia. In this regard, I am not aware of conditions that would require the applicant to return to South Africa in order to apply from outside Australia.
It seems clear from that passage that the Tribunal and the parties proceeded on the basis that, if the applicant’s visa were cancelled, he could only re-apply from outside Australia. It was that very consequence that the Tribunal had in mind in considering the exercise of the discretion.
The applicant before this court made much of the Tribunal’s statement that it was “not aware of conditions that would require the applicant to return to South Africa in order to apply from outside Australia”. The applicant argued that this meant that the Tribunal did not appreciate that the applicant would have to leave Australia if his visa were cancelled. However, the Tribunal simply said that the applicant would not necessarily have to return to South Africa. That is, the applicant could re-apply from anywhere outside Australia.
As to point h above, concerning the applicant suffering various disabilities under Australian migration law if his visa were cancelled, the applicant did not specify what the disabilities would be, apart from the need to re-apply outside Australia. However, I can see no reason to conclude that the Tribunal was not aware of and did not consider the relevant legal consequences of its decision. Ground 2 is not made out.

Ground 3

Ground 3 in the further amended application is as follows:
The Tribunal fell into jurisdictional error in basing its decision in part on conclusions not open to it on the evidence before it.
Particulars
The Tribunal had no evidence for its view that the applicant could remain in Australia and would not have to leave to apply for a further visa off shore if the Tribunal affirmed its decision to cancel the visa.
This matter was addressed in paragraphs 42, 43 and 44 above. The Tribunal did not have a view that the applicant could remain in Australia to re-apply if his visa were cancelled. Ground 3 is not made out.

Ground 4

Ground 4 of the further amended application is as follows:
The Tribunal fell into jurisdictional error in that its decision was so unreasonable that no reasonable Tribunal could so have decided.
Particulars
The decision of the Tribunal was unreasonable having regard to the following:
a.     The Tribunal said it was “not satisfied that financial hardship was a strong factor” ([39] of the Tribunal’s Reasons).
b.     The Tribunal said it was not aware of conditions which that would require the applicant to return to South Africa but with a cancelled visa he had no basis to remain in Australia ([46] of the Tribunal’s Reasons).
c.     The Tribunal accepted that the applicant was blameless in losing the employment which was the basis of the grant of the visa. The Tribunal accepted that the applicant and his family would have no money if they had to return to South Africa and accepted the strong weight to be accorded to the financial interests of an Australian employer. The Tribunal therefore accepted strong matters in favour of setting aside the decision to cancel the applicant’s visa but made the opposite decision.
d.The applicant refers to and repeats the particulars to the other grounds of his application herein.
I consider that there is substantial merit in this ground, except point b above, which is misguided for reasons explained above. In general, the Tribunal may give such weight to the various matters it considers as it sees fit. However, where there is a challenge to a decision on the grounds that it is so unreasonable that no reasonable decision maker could have made it, the court may look at the weight given by the Tribunal to the various factors it considered, and decide for itself whether that weighting is reasonable. Having said that, it is quite exceptional to conclude that a decision is so unreasonable that no reasonable decision maker could have made it.
As set out in paragraphs 16 and 17 above, the Tribunal’s reasoning process is not easy to discern. The Tribunal said that it considered that the interests of an Australian business, namely, Pearl, were “a significant and compelling factor”. Against this, the only point the Tribunal mentioned was that it had “some concern” about whether the applicant had been “forthcoming” with the Tribunal. This comment was a long way short of a finding that the applicant had lied to the Tribunal or behaved dishonestly towards the Tribunal. At most, the comment rises to the level of unresolved discomfort about an apparent discrepancy in a fairly peripheral aspect of the evidence. The much more significant point was that the applicant had a new sponsor who was extremely keen to keep him on.
The Tribunal also said that it gave “some weight” to the financial difficulty experienced by the applicant and his family, but said it was not a “strong factor”. Even assuming that only modest weight should be attributed to the financial difficulty faced by the applicant and his family, it needed to be added to the “significant and compelling” factor of Pearl’s interests. However, I consider that a reasonable decision maker would have given considerable weight to the financial difficulties faced by the applicant and his family.
Moreover, in considering hardship, the Tribunal gave “little weight” to the difficulties the applicant’s children could be expected to face in relocating away from Australia. It is well documented that children benefit from stability, particularly in relation to their education. I consider that a reasonable decision maker would have given more than a “little” weight to this matter.
The Tribunal said that it accepted the applicant’s concerns and desires about providing his children with a safer environment than South Africa. This matter also should have gone into the balance against a cancellation.
The Tribunal accepted that the applicant lost his job with Venture Ceramics for reasons that concerned global economic forces, but did not say one way or another whether it regarded this matter as an extenuating circumstance. I consider that this matter was another factor that a reasonable decision maker would have put into the balance against cancellation.
The Tribunal said expressly that there was no evidence of adverse behaviour by the applicant towards the department. This fact, and the fact that the Tribunal regarded certain conduct of the applicant as “puzzling” and “difficult to understand” can only be regarded as neutral factors in the Tribunal’s consideration of the discretion.
The Tribunal took a very narrow view of the best interests of the applicant’s children, confining it to their need to remain with their parents. A reasonable decision maker would have given weight also to the children’s need for stability and continuity, particularly in their education.
The Tribunal apparently accepted that the applicant’s visa was cancelled as a result of Pearl’s then migration agent failing to lodge a fresh sponsorship application in June 2009, contrary to expectations and instructions. The Tribunal apparently gave no weight at all to this factor. A reasonable decision maker would have given considerable weight to this matter.
All in all, there are many matters that a reasonable decision maker would have put into the balance against cancellation. On any reasonable view, those matters far outweigh the one matter that the Tribunal identified as being positively in favour of cancellation, namely, its concern about whether the applicant had been forthcoming to the Tribunal.
In all of the circumstances, I consider that the decision of the Tribunal in this case was so unreasonable that no reasonable decision maker could have made it.
The decision of the Tribunal must be set aside with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: