Grewal v Minister for Home Affairs

[2019] FCCA 533

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREWAL v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 533

Catchwords:
MIGRATION – Partner visa – cancellation – applicant no longer member of family unit of primary visa holder – delegate cancels applicant’s visa – Tribunal affirms delegate’s decision – application for judicial review – whether Tribunal’s decision was legally unreasonable – whether decision lacked an intelligible justification or a rational foundation – whether decision was plainly unjust or lacking in common sense – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5F, 65, 116, 140, 351, 368, 457, 474, 476

Migration Regulations 1994 (Cth), r.1.12, Sch 2 cl 457.321

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR

259

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Minister for Immigration and Multicultural Affairs v Zhang (1999) 84 FCR 258

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

(2004) 78 ALJR 992

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Singh vMinister for Immigration and Border Protection [2017] FCAFC 105
SZSSG v Minister for Immigration and Border Protection [2018] FCA 670

Applicant: RAJINDER KAUR GREWAL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1022 of 2016

Judgment of: Judge A Kelly

Hearing date: 31 January 2018

Date of Last Submission: 31 January 2018

Delivered at: Melbourne

Delivered on: 8 March 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.

2. The application filed on 17 May 2016 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $5,527.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1022 of 2016

RAJINDER KAUR GREWAL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 17 May 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 April 2016 affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant’s  Temporary Work (Subclass 457) (Skilled) visa (visa) pursuant to s 116 of the Migration Act 1958 (Cth) (Act).

2. As these reasons indicate, the applicant, who held a Partner visa, has had that visa cancelled in circumstances where her former husband has divorced her, having formed a relationship with a woman who had stayed in their home. The applicant finds herself in a position where she was considered ineligible for her visa upon the cancellation of her Partner visa. She submitted that her husband has, in effect, been rewarded for his infidelity with the grant of a s 457 visa while she has been effectively stripped of an essential qualification for her visa. The case is one which calls for Ministerial consideration under s 351.

Background

1. The applicant is an Indian national aged 40 years who, by an arranged marriage, was married to her former spouse in India in 2007. 

2. On 10 December 2012, the applicant was granted a Temporary Work Skilled (457) visa. At that time, the applicant satisfied a secondary criterion prescribed by cl 457.321 of the Migration Regulations 1994 (Cth) (Regulations) that she was a member of the family unit of the holder of a Primary Subclass 457 visa; namely, her husband: see reg 1.12(2)(a).

3. The applicant was found to meet the definition of “member of the family unit” contained within reg 1.12 of the regulations on the basis that she was the married spouse of the primary sub class 457 visa holder.

4. After a period of about seven years, the applicant’s marriage broke down.  The parties were divorced on 30 April 2016. 

5. On 25 June 2015 and again on 3 July 2015, the Department wrote to the applicant concerning its intention to consider cancellation of her visa pursuant to s 116 of the Act on the ground that circumstances which permitted the grant of her visa no longer existed: see para 116 (1)(a). By its letter, the Department stated that it had come to its attention that Ms Grewal was no longer in a spousal relationship with the primary visa holder. The applicant was given an opportunity to comment upon the ground of cancellation as stated in that letter.

6. Attached to the Department’s letter was a notice of intention to cancel the visa. Relevantly, the notice stated that there appeared to be a ground for cancellation of Ms Grewal’s visa under par 116(1)(a) by reason that a particular fact or circumstance on which the decision to grant the visa had been based was no longer the case or no longer existed. The notice stated that it appeared Ms Grewal was no longer a member of the family unit of the primary visa holder and that the applicant’s visa had been granted on the basis that the applicant met, amongst other criteria, the criterion that she was a member of the primary visa holder’s family unit. The notice set out reg 1.12 of the Regulations and s 5F of the Act which prescribed the meanings to be ascribed to the expression ‘Member of the same family unit’ and the term ‘spouse’.

7. The notice further stated that: (a) to be a member of the family unit as prescribed by regulation 1.12 the applicant needed to continue to be a spouse of the family head; (b) it appeared the applicant no longer met this definition as she no longer was married to the primary visa holder; (c) if the applicant was no longer a member of the family unit it was open for her visa  to be cancelled pursuant to par 116(1)(a); and (d) the applicant should be given an opportunity to comment on the grounds  for cancellation of her visa and to give reasons why her visa should not be cancelled.

8. On 17 July 2015, the applicant’s migration agent wrote to the Department confirming that the applicant’s relationship with the primary visa holder had broken down irreparably.  Attached to the migration agent’s email was a statutory declaration made by the applicant which set out the circumstances in which the applicant relied for consideration by the Department against the cancellation of her visa.  The email stated:

   . . . her husband has been cheating on her and has been living a double life.  Evidence of the same has been attached here with this email.  Her family as well as the village elders have been very upset over this matter as the marriage has lasted seven years and now has put Ms Grewal in a situation where she has very little chance or [sic] remarriage and settlement in India.

   Therefore she wants to be given an opportunity to use her skills and secure her visa on her own . . .

9. The applicant’s statutory declaration made on 2 July 2015, apparently completed in her own handwriting, stated:

   1)That I and my husband, Mr Gurjit Singh, have been legally and wilfully married since 20.5.2007.

   2)That, Ms Prabhjot Kaur, came to Australia and share the house on rent with me and my husband in September 2013.

   3)During our stay together, she has been the reason for a number of fights between myself and my husband.

   4)That I accept that my relationship with my husband now seem to be over.

   5)That I am a very skilled hairdresser and beautician and have applied for a number of jobs.

   6)That I am planning to request my employer to sponsor me based on my skills.

   7)That I request to be allowed more time to pursue my independent life.

   8)That she has been trying seduce my husband for the sake of her permanent residence.

   9)That my husband, Mr Gurjit Singh, seems to have been living a double life full of lies and deceit and being in a spousal relationship with two women at the same time, which I understand is illegal.

   10)That I have been trying hard to save my failing marriage but have been unable to do so.

   11)That I am in the process of claiming my rights, being in a long term married relationship with my ex-husband, and would need some time to pursue that matter free of lies, deceit and abuse.

10. On 27 July 2015, a delegate of the Minister made a decision to cancel the applicant’s visa with effect from that date.  The delegate acknowledged the email and statutory declaration sent by the applicant’s migration agent and stated that those matters had been taken into account in making the decision.

11. The delegate also furnished a decisional record dated 27 July 2015 which set out the information that had been considered by the delegate, the grounds for cancellation, the consideration of the delegate’s decision whether to cancel the applicant’s visa.  Relevantly, the decisional record set out the email from the applicant’s migration agent together with the applicant’s statutory declaration.  In his consideration of the decision to cancel the applicant’s visa, the delegate set out each of the factors which had been taken into account in reaching the decision to cancel the visa. 

12. The delegate gave little weight to the applicant’s submissions by reason of two factors the available information indicated that: (1) the applicant was no longer a member of the Gurjit Singh family unit; and (2) the applicant had not lodged an application for another substantive visa.  The delegate was satisfied that the grounds for cancelling the visa outweighed the grounds for not doing so.

13. On 28 July 2015, the applicant filed an application to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision. On 14 December 2015, the applicant was invited to attend a hearing before the Tribunal and did so on 20 April 2016 with the assistance of her migration agent.  The applicant was assisted at the Tribunal hearing by the provision of a Punjabi interpreter.

Tribunal’s decision

1. On 21 April 2016, the Tribunal made a decision to affirm the decision of the delegate to cancel the applicant’s visa.  The Tribunal furnished a statement of decision and reasons dated 21 April 2016 (Reasons).

2. In its consideration of the claims and evidence, the Tribunal recognised that the Minister may cancel a visa if satisfied that the decision to grant the visa had been based, wholly or partly, on a particular fact or circumstance that was no longer the case or no longer existed.  The Tribunal referred to Minister for Immigration and Multicultural Affairs v Zhang where the Full Court held[1] that the power to cancel a visa was grounded upon satisfaction of the non-existence of a fact or circumstance which permitted the grant of the visa.[2]

   [1] (1999) 84 FCR 258, [54] (French and North JJ), cf [64]-[66] (Merkel J)

   [2]             Reasons, [7].

3. The Tribunal reviewed the circumstances relating to the applicant’s marriage, the breakdown of that marriage and that the parties’ relationship was irreconcilable.  The Tribunal recorded that divorce proceedings had been concluded on 31 March 2016 by the issue of a decree of dissolution of marriage, which would become absolute on 30 April 2016.  It stated that the applicant had confirmed she was no longer in a spousal relationship.[3]

   [3] Reasons, [8]-[10].

4. The Tribunal was satisfied that the ground for cancellation provided for by para 116(1)(a) existed and recognised, correctly, that this ground did not require mandatory cancellation pursuant to para 116(3) and, accordingly, that it was required to consider whether the discretionary power to cancel the visa should be exercised.[4]

   [4]             Reasons, [11].

5. In its consideration whether to exercise the discretion to cancel the visa, the Tribunal observed that there were no matters prescribed by the Act or Regulations that were required to be considered in relation to the exercise of a discretion to cancel a visa, and that the Tribunal had paid regard to what it considered to be relevant circumstances; including, but not limited to, matters identified by the Department’s Procedures Advice Manual (PAM3), “General Visa Cancellation Powers”.[5]

   [5] Reasons, [6], [12].

6. The Tribunal made the following findings:

   a)as to the purpose of the applicant’s travel and stay in Australia,[6] the Tribunal considered whether the applicant had a compelling need to travel to or remain in Australia. The Tribunal observed that the applicant had been granted her visa solely on the basis of her membership of the family unit of the primary visa holder and that she ceased being a member of that unit. The Tribunal had regard to the intention of the subclass s 457 visa programme and stated that:

   [6] Reasons, [14]-[17].

   The programme allows primary visa holders to include members of their family unit to their visa application and allows subsequent applications by family unit members to be made to later join a primary visa holder in Australia;

   b)the Tribunal reasoned that, in light of the applicant no longer being a family unit member, reinstatement of a s 457 visa to the applicant would be inconsistent with the overall intentions of that visa programme. The Tribunal also observed that, while the applicant was a hairdresser by trade and might qualify for nomination as a primary subclass 457 visa in her own right, the evidence before the Tribunal was that the applicant had taken no concrete steps toward achieving that objective and considered that the prospect of her doing so was only speculative;

   c)the Tribunal found[7] there was no evidence of non-compliance with visa conditions and, to the extent that the applicant did not presently hold a bridging visa, considered that this had been the product of ignorance and attached no weight to that matter;

   [7] Reasons, [18]-[20].

   d)as to the degree of hardship that may be caused[8] (financial, psychological, emotional or other), the Tribunal found that the evidence before it was that the applicant had experienced hardship of the kind raised by this PAM3 policy consideration and recognised that the applicant’s parents had commenced proceedings in an Indian court on her behalf following the marriage breakdown, which (had those proceedings been successful) might have resulted in certain benefits inuring to the applicant as the aggrieved spouse.  However, the Tribunal recognised that the applicant’s parents were elderly, frail and not wealthy, and had experienced delays in the Indian judicial system which were caused by deliberate actions taken by the family of the primary visa holder, which had, in turn, caused financial loss to the parents with the result (in company with threats from the opposing party), of the abandonment of the Indian proceedings;

   [8] Reasons, [21]-[24].

   e)the Tribunal accepted the applicant’s evidence that there remained considerable animosity toward her and her family as a consequence of the Indian litigation, and that she feared harm as a result if she were to return to India;

   f)the Tribunal also recognised that, in terms of the applicant’s culture, Indian daughters were considered a burden to their parents and to have become the responsibility of the husband’s family upon marriage.  In those circumstances, a return to India by a divorced daughter would be regarded with negativity;

   g)the Tribunal concluded:

   Whilst the Tribunal acknowledges the significant hardship of both an emotional and financial nature that may result in the visa cancellation for the applicant, the Tribunal does not consider that this matter alone outweighs other factors, which militate in favour of the visa being cancelled.

   h)as to the circumstances in which grant of cancellation arose, [9] the Tribunal accepted that the circumstances of the breakdown of the applicant’s marriage, particularly in the context of the infidelity of the primary visa holder and his fathering of a child with his new partner had been distressing to the applicant and outside of her control;

   i)concerning past and present conduct of the visa holder toward the Department,[10] the Tribunal accepted that the applicant had been “cooperative in his (sic) dealings with Australian authorities in relation to his (sic) visa affairs”;

   j)as to whether there were mandatory legal consequences attending visa cancellation,[11] the Tribunal considered that the effect of cancellation in the applicant’s case would have no immediate mandatory consequences in relation to the applicant’s lawful status or liability for immigration detention;

   k)the Tribunal observed that no consequential cancellations arose in the present case: s 140;[12] 

   l)the Tribunal found there was no information before it suggesting that any international obligations would be breached as a result of the cancellation.[13] 

   [9]             Reasons, [25].

   [10] Reasons, [26]-[27].

   [11]           Reasons, [28].

   [12]           Reasons, [29].

   [13]           Reasons, [30].

7. In affirming the decision to cancel the applicant’s visa, the Tribunal concluded at [31] as follows:

   Considering the circumstances as a whole, whilst certain matters evident on the materials may be considered either neutral or in some way supportive of a favourable exercise of the discretion, on the evidence the Tribunal considers that the pond [sic] and some factors evident on the materials indicate that the correct and preferable decision in this case is that the subclass 457 visa held by the applicant should be cancelled.

8. The Tribunal affirmed the delegate’s decision to cancel the visa.

Procedural history

1. On 17 May 2016, the applicant commenced proceedings for judicial review in this court.  The applicant also swore an affidavit, to which she annexed a copy of the Tribunal’s decision.

2. The Minister’s Response opposed the making of all orders sought in the application contending that the application raised no arguable case for the relief sought.  The second respondent filed a submitting notice.

3. By orders made on 26 October 2016, the application was set down for hearing.  By those orders, the applicant was afforded an opportunity to file any amended application, with proper grounds of the grounds of the application upon which relief was sought, a supplementary court book and written submissions.

4. In responding to those orders, the applicant made a further affidavit affirmed on 14 November 2016, to which she exhibited certain documents, all of which, save one, were before the Tribunal.  The document which was not before the Tribunal was a letter dated 14 November 2016 addressed by the applicant to the court.  Counsel for the Minister accepted, quite properly, that I should accept that letter as being the applicant’s submission.  Relevantly, the letter stated:

   . . . . before moving to Australia with my husband, Mr Gurjit Singh, to pursue further studies, I accompanied him there.  I have over seven years of my relationship with him before he decided to move with a younger girl.  The Department decided to cancel my visa and did not provide me with any option to pursue my life here, despite the fact that I had few employment offers.  However, without work rights, the employers were not ready to take chances with my sponsorship.

   I believe that it was within the case officer’s power to allow me more time to convince my employer to sponsor me, however, the case officer, preferred to cancel my visa and be party to the ongoing abuse and harassment that I have received from my husband and society in general.

   I request you to consider my case and direct the Immigration Department to allow me to pursue my career here.  I’ll be very grateful for your kindness.

1. Before me, the applicant submitted that she and her husband had agreed to assist a young woman from her village to stay with them and that her husband had then had an affair with her before leaving the applicant.

Judicial Review

1. Being a privative clause decision[14], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[15]  Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[16] 

   [14] Section 474(2).

   [15]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [16]           Sub-s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[17] and where appropriate, to order that the matter be remitted and reconsidered according to law.

   [17]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[18] Minister for Immigration and Citizenship v SZMDS.[19] 

   [18](2004) 78 ALJR 992, [37]-[38].

   [19](2010) 240 CLR 611, [40], [102].

4. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[20]  Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[21]  

   [20]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

   [21] Section 65(1)(a).

Consideration

1. As the applicant was self-represented before me I have examined the materials comprising the court book and the Tribunal’s Reasons.

2. The applicant’s application for judicial review contains two grounds.

Ground 1 – legal unreasonableness

1. Ground 1 reads:

   The member did not give weight to the fact the decision put me in a very difficult situation, that he himself mentioned that he would consider.

2. By his Response, the Minister contended that Ground 1 sought a merits review of the application which was accordingly impermissible.  While I accept that it is not open for this court to conduct a merits review of the application, the generality of that proposition tends to conceal the true nature of the process of judicial review.  In particular, consideration of whether there is substantive merit in an application for judicial review requires that the Tribunal’s Reasons be examined.  The close analysis of the factual evaluation and approach taken by the Tribunal is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection.[22]  To that end, I have undertaken that analysis of the Reasons particularly in light of the applicant being self-represented.

   [22] [2018] FCA 670 at [6]-[7] (Allsop CJ).

3. The Minister further submitted that Ground 1 raised no arguable case of jurisdictional error by reason that the weight to be attributed to evidence was a matter for the Tribunal and that it was entitled to give greater or lesser weight to the evidence before it:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd;[23]  Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[24]  The Minister further submitted that, insofar as this Ground may be understood as contending that, before deciding to affirm the delegate’s decision, the Tribunal had failed to consider the situation the applicant would be in as a result of the cancellation of her visa,  this was unsustainable.  The Minister so submitted in circumstances where the Tribunal had acknowledged that whether the applicant may suffer significant hardship of both an emotional and financial nature was relevant to the exercise of power to cancel the applicant’s visa.

   [23] (1986) 162 CLR 24, 41 (Mason J).

   [24] (1996) 185 CLR 259, 280-282.

4. The Minister correctly submitted that in consideration of the power to cancel a visa under par 116(1)(a), the Tribunal had identified the relevant Departmental Procedures Advice Manual PAM3 – “General Visa Cancellation Powers”.  It was said that by reference to the Manual, the Tribunal had considered the matters which it addressed.

5. Those matters notwithstanding, the applicant’s submission may be understood as raising a contention that the Tribunal’s decision was legally unreasonable and I have considered whether the decision may be impugned on that basis. 

6. In substance, the applicant points to the injustice of a situation in which the applicant’s 457 visa has been cancelled by reason of the breakdown of her marriage, in circumstances where the primary holder of the 457 visa (the applicant’s former husband) has, as the applicant’s statutory declaration deposed, been in a spousal relationship with both the applicant and the younger Indian woman who moved in to the matrimonial home. The applicant points out that, while her visa has been cancelled on the basis that she is no longer a member of the family unit of the primary 457 visa holder, this stands in contrast to the circumstance that the person who was, in a practical sense, the catalyst for the failure of the parties’ marriage, has now, herself, secured a visa on the basis that she now is a member of the family unit of the primary s 457 visa holder.

7. While the Tribunal was obliged to act reasonably in deciding the application, the test of legal unreasonableness is a stringent one.[25] 

   [25]           Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [113] (Gageler J).

8. The Tribunal expressly acknowledged the degree of hardship that may be caused to the applicant.  It stated, at [24]:

   Whilst the Tribunal acknowledges the significant hardship of both an emotional and financial nature that may result in the visa cancellation for the applicant, the Tribunal does not consider that this matter alone outweighs other factors which militate in favour of the visa being cancelled.

9. The Tribunal did not expressly identify what were the “other factors which militate in favour of the visa being cancelled.”  The Reasons traverse 32 paragraphs.  An examination of the record indicates that the hearing occupied about 90 minutes.  It may be inferred that the other factors which were considered to militate in favour of cancellation of the visa were the other matters addressed in the Reasons.[26]

   [26] See s 368(1)(c).

10. The Tribunal had regard to the intention of the subclass 457 visa programme and the view which it formed that reinstatement of a 457 visa to the applicant, in the circumstances of the failure of her marriage, would be inconsistent with the overall intentions of the visa programme.  Why it held that view was not explained in the Reasons.

11. The Tribunal also referred to the circumstance that no concrete steps had been taken by the applicant to qualify for nomination as a primary subclass 457 visa holder in her own right.  Yet it correctly accepted that this was attributable to the applicant’s ignorance.

12. On a fair reading of the Reasons, it appears that with the exception of the stated intention of the s 457 visa programme, the Tribunal considered all other factors to be either neutral or in favour of the exercise of power not to cancel the visa. It follows that the only factor which militated in favour of cancellation was that the applicant was no longer a member of the primary visa holder’s family unit and that it was not consistent with the intention of the s 457 visa programme that a secondary visa holder should retain the benefit of such visa where they were no longer a member of that family unit.

13. It is essential to recognise that the court’s role in reviewing a decision on the ground of legal unreasonableness is strictly supervisory.  Upon that principle, it is not sufficient that the court should disagree with the decision even where it does so emphatically.   In Minister for Immigration and Border Protection v Stretton,[27] Wigney J stated:

    The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision[28] or if the decision is within the “area of decisional freedom” of the decision-maker,[29] it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. 

    His Honour’s observations are no less applicable where the consideration of legal unreasonableness is outcome focussed.[30]

    [27] (2016) 237 FCR 1, [92].

    [28]Citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, [44]-[45].

    [29]           Citing Li, supra, [28], [66], [105]; Singh, supra [44].

    [30]           Stretton, supra (2016) 237 FCR 1, [91].

14. Once those principles are recognised and applied in the present case, it must be accepted that the Tribunal expressly acknowledged the degree of hardship that may be caused to the applicant was real.  It cannot be said that in those circumstances that the Tribunal had put this issue to one side.[31]  And on a fair reading of the Reasons, nor can it be said that the Tribunal failed to consider the other factors in evaluating the matters relevant to a decision whether to exercise power not to cancel the visa.[32]  Further, I conclude that the Tribunal’s decision was one about which reasonable minds might differ.[33]  It would be an erroneous process of reasoning on judicial review to proceed from a conclusion that, because cancellation should be regarded as being a disproportionate response, it must follow that the decision was tainted by legal unreasonableness.[34]

    [31]           Cf Stretton, supra (2016) 237 FCR 1, [99].

    [32]           Cf Stretton, supra (2016) 237 FCR 1, [101].

    [33]           Cf Stretton, supra (2016) 237 FCR 1, [102].

    [34]           Cf Stretton, supra (2016) 237 FCR 1, [103].

15. Upon those principles, I conclude that the Tribunal’s Reasons in deciding to affirm the delegate’s decision to cancel the visa do not demonstrate that it acted in a way which should be characterised as legally unreasonable.[35]  Having regard to the power which was being exercised, its decision did not lack an intelligible justification or a rational foundation.  Nor was it plainly unjust or lacking in common sense.[36]   The Tribunal’s conduct in proceeding to complete its review cannot be described as legally unreasonable, in the sense of being without any legal justification.[37]  It is not to the point that I might disagree emphatically with that decision.  The decision so reached was within the area of the Tribunal’s decisional freedom which must be respected.

    [35]See also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [57], [59]-[60] (Gageler J), [79]-[87] (Nettle and Gordon JJ), [135] (Edelman J).

    [36]Stretton, supra (2016) 237 FCR 1, [41] (Allsop CJ).

    [37]Singh vMinister for Immigration and Border Protection [2017] FCAFC 105, [80] (Mortimer J, Jagot and Bromberg JJ agreeing).

16. Ground 1 is rejected.

Ground 2 – jurisdictional error

1. Ground 2 reads:

   He made a number of jurisdictional errors in deciding the application, particularly with regards to the reasons for cancellation as well as providing a just and fair opportunity to me.

2. The Minister correctly submitted that Ground 2 did not, in terms, raise any ground of jurisdictional error.  Contrary to the complaint raised by the suggestion of a failure to provide a fair and just hearing, I note that the applicant was invited to attend, and that she did attend a hearing where she was afforded an opportunity to present evidence and make arguments in relation to the issues arising on the decision under review.

3. Ground 2 is rejected.

Conclusion

1. For the reasons above, the application must be dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 8 March 2019