Hannadige v Minister for Immigration
[2019] FCCA 406
•22 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANNADIGE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 406 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of higher education sector (subclass 573) visa under s.116 of the Migration Act 1959 – whether the Tribunal asked itself the wrong question, ignored relevant material, relied on irrelevant material, misunderstood the evidence, or made an unreasonable decision. |
| Legislation: Migration Act 1958, ss.116, 140, 499 |
| Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18 |
| First Applicant: | PASINDU MAHESHAN FERNANDO BAMINA HANNADIGE |
| Second Applicant: | T DUMINI HASANGIKA FERNANDO WICRAMASURIYA GUNAWARDANA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 821 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 19 October 2018 |
| Date of last submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 February 2019 |
REPRESENTATION
| Advocate for the applicants: | Kamal Karunadasa |
| Solicitors for the applicants: | TAI Lawyers |
| Advocate for the first respondent: | Danielle Nicholson |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 24 April 2017 and amended on 7 December 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 821 of 2017
| PASINDU MAHESHAN FERNANDO BAMINA HANNADIGE |
First applicant
And
| T DUMINI HASANGIKA FERNANDO WICRAMASURIYA GUNAWARDANA |
Second applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. The first applicant is the husband of the second applicant. In its decision, the Tribunal:
a)affirmed a decision of a delegate of the Minister for Immigration and Border Protection to cancel the first applicant’s higher education sector (subclass 573) student visa; and
b)found that it had no jurisdiction in respect of the second applicant.
The second applicant
The second applicant in the present proceeding before this court was also the second applicant in the proceeding before the Tribunal. The Tribunal noted that the delegate had not mentioned the second applicant in the reasons for his or her cancellation decision and had not made any decision in relation to the second applicant. The Tribunal considered that, in consequence, the Tribunal had no jurisdiction in relation to the second applicant.
The Tribunal also noted that the second applicant’s student visa, which she had held as a dependent of the first applicant, was cancelled by operation of s.140 of the Migration Act 1959 (“the Act”), not by operation of a decision made by the Minister or his delegate.
The Minister submitted that the second applicant had no standing in this court to challenge the Tribunal’s affirmation of the delegate’s decision to cancel the first applicant’s visa. However, the Minister conceded that the second applicant had standing in this court to challenge the Tribunal’s decision that it had no jurisdiction in relation to her.
The applicants and the Minister agreed that the Tribunal made an error when it said that the delegate should have made a decision in relation to the second applicant, on the basis that she was a dependent visa holder. The applicants submitted that, because the Tribunal had made that mistake, the Minister could not now raise objections to the court’s jurisdiction. The Minister submitted that the error was an observation and had no bearing on the Tribunal’s ultimate decision that it had no jurisdiction in relation to the second applicant.
I accept the Minister’s submissions in that regard. That is, I accept that the Tribunal’s error in relation to whether the delegate should have made a decision in relation to the second applicant had no bearing on the Tribunal’s ultimate decision. The Tribunal’s error was not a jurisdictional error and did not limit the Minister’s ability to make submissions on jurisdiction.
The Minister noted that the applicants had not challenged the Tribunal’s decision on its jurisdiction in relation to the second applicant in their application and amended application filed in this court. That is correct.
However, the applicants appear to have informally challenged that determination in their written submissions filed on 16 November 2018. Obviously, the applicants should have sought leave to further amend their application to include a challenge to the Tribunal’s finding on jurisdiction in relation to the second applicant. As the matter stands, the applicants appear to have informally challenged that finding but have not set out any discernible grounds.
Ultimately, there would be nothing gained by granting leave to the applicants to further amend the application, as there was no jurisdictional error in the Tribunal’s determination that it did not have jurisdiction in relation to the second applicant. The cancellation of the second applicant’s student visa occurred by operation of law, not by reason of a reviewable decision.
Background
The Minister summarised the background to this matter in his written submissions filed on 17 January 2018 as follows:
3.On 6 February 2014, the applicant, a citizen of Sri Lanka, was granted the Visa. The Visa was granted on the basis of the applicant undertaking a Mixed English and Academic Program, a Diploma of Engineering, and a Bachelor of Engineering.
4.On 21 October 2016, the department emailed the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(fa)(i) of the Act: CB 1-6. The letter advised that it appeared the applicant was not, or was not likely to be, a genuine student as it appeared his primary intention was not to undertake study. The letter referred to information from PRISMS that showed the applicant did not complete the Diploma of Engineering, did not commence the Bachelor of Engineering and that his enrolment in both courses had been cancelled. It also referred to department records that indicated the applicant applied for a Temporary Work Visa on 17 February 2016 which was refused on 11 July 2016; and PRISMS information that on 14 October 2016 the applicant enrolled in a Bachelor of Business Information Systems. The department said the PRISMS information indicated the applicant had not undertaken studies in a registered course since 11 October 2015, he had not been enrolled in a registered course between 9 December 2015 and 14 October 2016, and he had not completed any courses other than a short English language course.
5.On 28 October 2016, the applicant responded to the NOICC: CB 7-9.
6.On 2 November 2016, a delegate of the Minister cancelled the Visa under s 116(1)(fa)(i) of the Act: CB 10-22. The delegate found that a ground for cancellation existed as the applicant was not a genuine student on the basis that his primary intention was not, or was not likely to be, to undertake study. The delegate found the grounds for cancelling the Visa outweighed the grounds for not cancelling.
7.On 8 November 2016, the applicant and his wife (the second applicant) applied to the Tribunal for review, attaching a copy of the delegate’s decision: CB 23-25. They appointed a migration agent to assist them. They attached a Certificate of Enrolment (COE) dated 14 October 2016 for the applicant to study a Bachelor of Information Systems commencing 7 November 2016: CB 25, 31.
8.On 29 March 2017, the applicant’s migration agent provided written submissions, with various documents attached: CB 54-63.
9.On 5 April 2017, the applicants appeared before the Tribunal to give evidence and present arguments. The applicants were represented by their migration agent: CB 73.
The Tribunal’s reasons
The Minister summarised the Tribunal’s reasons for decision in his written submissions filed on 17 January 2018 as follows:
10.On 6 April 2017, the Tribunal affirmed the decision to cancel the Visa: CB 79-89.
11.The Tribunal found it had no jurisdiction in relation to the second applicant, as no decision was made by the department in relation to the second applicant and her visa was automatically cancelled by the operation of s 140(1) of the Act: [3]-[6], [44].
12.On the available evidence, the Tribunal found the applicant was not a genuine student and was satisfied that the ground for cancellation in s 116(fa)(i) existed. The Tribunal found that the applicant completed three months of English courses. It found he then commenced a Diploma of Engineering, as a precursor course to a Bachelor of Engineering, however he took a five month break and withdrew from his course. The applicant recommenced the course but stopped studying in October 2015 and his enrolment was cancelled in November 2015. The applicant gave evidence that he passed one subject in three semesters and he failed to attend lectures and could not keep up. He then applied for a Subclass 457 Temporary Work (Skilled) visa and worked fulltime. The Tribunal found that, once his Subclass 457 visa was refused, he enrolled in a course which he had no interest in just to meet his Visa conditions. The Tribunal found this was not the action of a genuine student: [28]-[32].
13.The Tribunal then considered whether to exercise its discretion to cancel the Visa. In this regard, the Tribunal made the following key findings:
13.1The Tribunal considered the applicant’s evidence that he now wanted to complete his engineering course and work as an engineer. The Tribunal found that it had “serious reservations” about this evidence, given the applicant’s past practice: [33]-[34].
13.2The Tribunal placed very limited weight on the applicant’s claim that he had responsibilities for his family, given the limited support the applicant provided to his family: [36].
13.3When asked what employment opportunities the applicant might have on return without a qualification, the applicant stated that he did not want to go back and wanted to remain in Australia. He did not provide information about what he would do on return. The Tribunal placed little weight on this consideration: [37].
13.4In relation to the applicant’s evidence that he had two siblings who were soon to come to Australia to study, the Tribunal gave this little weight as they were not in Australia yet. The Tribunal noted the applicant’s wife would be affected by cancellation under s 140 of the Act, and found that the applicant’s wife would return with the applicant to Sri Lanka. The Tribunal gave this little weight: [38].
13.5Based on the applicant’s evidence that he was not sure if he had applied for a Bridging visa, the Tribunal found it was likely the applicant had been unlawful in Australia since his Visa was cancelled in November 2016. The Tribunal found the applicant had been clearly advised his Visa had been cancelled however noting that there could be confusion with Bridging visa applications, placed limited weight on this consideration. The Tribunal further found no other issues with migration had been identified, nor had any international obligations that were relevant in the applicant’s circumstances: [39].
14.The Tribunal found that the fact that the applicant was not a genuine student was the most significant aspect of this consideration, and when considering the circumstances as a whole, the Tribunal concluded that the Visa should be cancelled: [41].
Ground 1
The first ground of review in the application filed on 24 April 2017 and amended on 7 December 2017 (“the application”) is:
The Tribunal asked itself the wrong question in determining the Applicant’s prospects of successfully completing his present course on the basis of his past studies; thereby invalidating its decision on the grounds of jurisdiction[al] error as per the species of error laid out by the High Court of Australia in Craig v South Australia.1
1 (1995) 184 CLR 163 at 179.
Particulars
(a)The Tribunal placed emphasis at paragraphs 15, 19, and 28 of its Reasons on the Applicant’s poor academic record in his Diploma of Engineering course at the Queensland Institute of Business and Technology taking this as evidence that ‘he was not capable of completing that course’.
(b)The course that the Applicant was enrolled in at the time of the Tribunal’s decision was the Bachelor of Information Systems at Holmes Institute.
(c)The relevant question, therefore, was whether or not the Applicant was a genuine student in that course.
(d)In any event having a poor academic record does not result in the inference that the Applicant is not a genuine student: a poor student may nonetheless be a genuine student. The Tribunal was materially mistaken in making this inference.
Paragraphs 15, 19 and 28 of the Tribunal’s reasons for decision are as follows:
15.The applicant was not a successful student in his Diploma course. The applicant stated that in his first semester of studying he passed one unit and failed two. The Tribunal asked why the applicant did not pass. The applicant stated he found it difficult, he was homesick, he missed lectures, he found his exams very hard because of his failure to study.
…
19.The applicant was not successful on his return to study. He did not successfully complete any of the units he commenced, failing them all. The applicant said he had problems over here, he was missing his family. He said he had been sick, but had no medical evidence to support this contention. The Tribunal notes that the submission stated that the applicant had depression, but there is no medical evidence to support such a diagnosis. He stated that his wife arrived in July 2015 to support him. The Tribunal noted that the applicant continued to fail his subjects after his wife arrived in Australia, which perhaps contradicted his statement that missing family was causing his failure. The applicant stated that the subjects were interlinked, he would fail one so this made it harder to pass another. The Tribunal expressed its significant concern at the competency of the applicant to study an Engineering course, noting that when he was enrolled in the Diploma course he could pass only one subject in three semesters.
…
28.The Tribunal has considered the information before it. The applicant has been in Australia for 3 years, aside for two weeks in November 2014, on a student visa. In that time he completed 3 months of English courses. He then commenced a Diploma course, a precursor course to the Bachelor course in Engineering which was his principal course. He had interrupted studies starting the course, then withdrawing, then commencing again 5 months later. The applicant stated he failed to [attend] lectures and could not keep up. He blamed homesickness and being away from his family, however even when his wife was in Australia he continued to fail. He passed one subject in the 3 semesters of study, stopping studies in Engineering in October 2015, and having his enrolment cancelled in November 2015. He did not return to any enrolment in Engineering. It appears from the applicant’s results that he was not capable of completing that course, even with the support of his wife.
The applicants’ written submissions filed on 11 December 2017 did not identify the particular grounds of review to which they were directed. It is therefore difficult to know what the applicants’ written submissions in relation to ground 1 actually were.
In oral submissions, the applicants said that the Tribunal erred by asking whether the first applicant was a poor student, when it should have asked whether he was a genuine student. The applicants emphasised that a poor student can nevertheless be a genuine student. As the particulars to ground 1 make clear, the applicants argued that the Tribunal should have considered whether the first applicant was a genuine student in the Bachelor of Information Systems course, in which he was enrolled at the time of the Tribunal’s decision, not a genuine student in the engineering course, in which he had previously failed.
The Minister submitted that the Tribunal did ask itself whether the first applicant was a genuine student, including whether he was a genuine student in the Bachelor of Information Systems course. The Minister submitted that it was open to the Tribunal to look at the entirety of the first applicant’s study and work history in Australia to determine whether he was a genuine student. The Minister relied particularly on paragraphs 30 and 31 of the Tribunal’s reasons for decision, which are as follows:
30.The skilled visa application was refused. Desperate to try and remain in Australia the applicant enrolled in a course in October 2016, despite, on his evidence, having no interest in the course. He enrolled to meet the student visa conditions which he realised he was breaching. The Tribunal has significant concerns regarding the applicant’s activities in this regard, that he would enrol in such a course when he had no interest in it.
31.The Tribunal has considered this information, and has determined that the applicant is not a genuine student. His studies, such as they were, were marked by his failure to attend lectures and subsequent failure to complete his subjects. He took a five month break in the middle of his engineering diploma, when instead of deferring, he withdrew from his course. He passed one subject in 3 semesters of study. Failing to progress, which meant that this student pathway of remaining in Australia was not available, the applicant abandoned his studies to work in Australia. He worked full time with no study while waiting for the 457 visa application to be approved. When it was refused, again realising that pathway of remaining in Australia had closed, the applicant sought to return to his studies and enrolled in the only course offered, despite not being interested in it. The applicant stated he enrolled in the course to maintain his visa condition. He had no interest in the course. This is not the action of a genuine student.
The Tribunal did not make the error alleged. The Tribunal expressly dealt with the question of whether the first applicant was a genuine student in the Bachelor of Information Systems course and decided he was not, primarily because he admitted to the Tribunal that he had no interest in that course. It was open to the Tribunal to conclude, as it did, that the first applicant only enrolled in the Bachelor of Information Systems course to meet his student visa conditions. Ground 1 is not made out.
Ground 2
The second ground of review in the application is:
The Tribunal ignored relevant material as to the Applicant’s intentions in studying his present course, thereby invalidating its decision on the grounds of jurisdictional error as per the species of error laid out by the High Court of Australia in Craig v South Australia.2
2 Ibid.
Particulars
(a)The Tribunal stated at paragraph 25 of its Reasons that the Applicant had enrolled in a course that on his evidence to the Tribunal he had no interest in studying which ‘led to serious concerns about the applicant being a genuine student in Australia’.
(b)The evidence the Applicant presented at the hearing was that he still wanted to study Engineering, and that he enrolled in Information Systems as he was unable to find an offer to study Engineering at the material time.
(c)It was the Tribunal that made the conclusion from this that the Applicant had only enrolled in the Bachelor of Information Systems to meet his visa criteria.
(d)The Applicant, however, had stated that the reason for his difficulty in finding an Engineering course was the long gap in his studies. It was therefore logical of him as a genuine student to enrol in a course in a similar discipline with the view to moving back towards Engineering in the future.
(e)The Tribunal failed to consider this, instead presenting the conclusion to the Applicant that being desirous of studying Engineering as opposed to Information Systems, he must have enrolled in Information Systems merely to maintain his visa status.
Paragraph 25 of the Tribunal’s reasons for decision is as follows:
The applicant stated that once he knew that he had been refused he tried to apply to enrol at various course providers. However because of the study gap he was not accepted. The applicant stated that eventually Holmes College offered him an enrolment in a Bachelor [of] Information Systems. The applicant enrolled in this, the Tribunal noting that he had done so prior to receiving the Notice of Intention to Consider Cancellation from the Department. The Tribunal asked why the applicant had enrolled in that course, as it was different to his previous studies. The applicant stated that it was the only option available to him, he did not want to be in breach of his visa conditions, so enrolled in that course. The applicant stated he wanted to study Engineering and was not interested in Information Systems studies. The Tribunal noted that the submission of the applicant’s agent, dated 29 March 2017, stated something quite different, that the applicant wants to take up the studies in Information Systems. The applicant could not explain this contradiction. The Tribunal expressed its concern that the applicant had enrolled in a course that, on his evidence to the Tribunal, he had no interest in studying, but to meet his visa criteria. This again led to serious concerns about the applicant being a genuine student in Australia.
The first applicant conceded that he had told the Tribunal that he had no interest in the Bachelor of Information Systems course. However, the first applicant submitted that this concession was made in the context of a substantial language barrier and an aggressive style of interjection and questioning by the Tribunal Member …
The applicants filed a transcript of the Tribunal proceedings. However, the transcript was not exhibited to an affidavit. In any event, the Minister did not object to it.
I have looked at the relevant parts of the transcript, such as it is. Unfortunately, there seem to be many parts of the transcript which are not typed, but replaced with ellipses. It may be that the relevant words, both as spoken by the Tribunal member and by the first applicant, were inaudible or unintelligible. However, the transcript does not say which. The court was not provided with the audio recording of the Tribunal hearing.
In any event, it does not seem to me that the discussion of the first applicant’s motivation for studying the Bachelor of Information Systems course (Tr. pp.15-17) was marred by a language barrier or an aggressive style of questioning by the Tribunal member. On the contrary, the Tribunal member put to the first applicant his understanding of what the first applicant had said and gave him an opportunity to clarify his evidence.
In all the circumstances, including the first applicant’s admission that he had no interest in the Bachelor of Information Systems in which he had recently enrolled, even if the Tribunal asked the first applicant leading questions on that issue, it was open to the Tribunal to conclude that he was not a genuine student.
By saying that it was logical for the first applicant to enrol in a related discipline, the applicants are basically saying that the Tribunal could have taken a different view of the evidence. That submission is tantamount to asking for merits review, which this court is not permitted to provide. Ground 2 is not made out.
Ground 3
The third ground of review in the application is:
The Tribunal relied on irrelevant material pertaining to the Applicant's application for a 457 visa, thereby invalidating its decision on the grounds of jurisdictional error as per the species of error laid out by the High Court of Australia in Craig v South Australia.3
3 (1995) 184 CLR 163 at 179.
Particulars
(a)The Tribunal noted at paragraphs 21 and 29 that the Applicant’s application in February 2016 for a 457 Temporary Skilled visa ‘was not the practice of a genuine student’.
(b)There exists no legal basis for the principle that a genuine student on a student visa may not apply for a different category of visa.
Paragraphs 21 and 29 of the Tribunals reasons for decision are as follows:
21.In February 2016 the applicant applied for a 457 Temporary Skilled visa. The applicant stated that a friend of his and his wife’s had a business in Melbourne, and invited the applicant to come to Melbourne to work as a contract administrator. The Tribunal questioned why the applicant, who had originally come to Australia to study, had decided to abandon his studies and pursue this migration pathway in Australia. The Tribunal noted that applying for a skilled visa, in particular when the applicant had failed as a student, caused considerable concern as to whether the applicant was a genuine student.
…
29.Having failed his course, the applicant withdrew and subsequently had his enrolment cancelled. The Tribunal notes that this meant that this opportunity for the applicant to remain in Australia had failed. The applicant tried a different migration pathway, applying for a skilled visa and working full time. As the Tribunal noted, this is not a practice of a genuine student. The Tribunal does not accept that the applicant sought to study part time, the applicant was working full time as a contract administrator. He was not studying, despite that being his stated intention when he first arrived in Australia.
In support of this ground, the applicants relied on Singh v Minister For Immigration and Border Protection [2018] FCCA 1684, where Judge Dowdy said:
36. On the other hand, I do consider that the Applicant has established that the decision of the Tribunal is affected by jurisdictional error in that it failed to consider and deal with the Applicant’s major substantive claim, which was to the effect that his father’s adverse health condition for seven years in India had negatively impacted upon and affected his studies in Australia and also provided an explanation of the gaps in his studies in Australia. I have come to this view notwithstanding that I am conscious that merely because documents have not been referred to by the Tribunal does not necessarily mean that they have been overlooked and that the Tribunal is not necessarily bound in its reasons for decision to refer to every piece of evidence and every contention made by an applicant.
…
39.However, in my view the Tribunal never engaged with and considered this claim of the Applicant’s. There is no reference at all to the medical certificate in the Decision Record of the Tribunal, including at [13] where the Tribunal referred to the materials forwarded under cover of the migration agent’s letter of 20 November 2014, and where one might have expected the Tribunal to have referred to it, or at [22] where the Tribunal referred to the Tribunal decision delay request to allow the Applicant to obtain “certificates regarding his father’s illness” and where once again it would have been natural for the Tribunal to have referred to the medical certificate as already having been given to it.
The applicants submitted that the Tribunal in the present matter made the same type of error as was made in Singh, because the Tribunal did not factor into its consideration that the first applicant was distracted from his studies due to his father’s illness and dropped a semester to look after his sick father in Sri Lanka and then sought work to alleviate his family’s financial difficulties. The applicants conceded that the Tribunal mentioned the issue of the health of the first applicant’s father. However, the applicants submitted that the Tribunal did not consider that issue.
The present case is readily distinguishable from Singh. In Singh, there was relevant and credible evidence about the health of the first applicant’s father. In the present case, the first applicant told the Tribunal that his father had heart problems, but the medical evidence consisted of a gall bladder pathology result and a urine culture (CB62-63).
Moreover, the Tribunal considered the question of the first applicant’s need to look after his family in the following terms at paragraph 36 of its reasons for decision:
The applicant has said he is responsible for his family, as he is the eldest son and that there are cultural expectations that he will look after the family. He has stated in submissions that his return to Sri Lanka was a demonstration of this. However the applicant’s return was in fact truncated, his father was already unwell with a heart problem, however the medical matter the applicant returned to related to an appendix. He came and left within 2 weeks, to return to Australia with no study opportunity available to him, having withdrawn from his course. He states his father convinced him to return. It appears that the purpose of the applicant returning was to marry his wife, so he could sponsor her to Australia as a dependent, something he did in January 2015, soon after his return. The applicant places very limited weight on his claim that he has responsibilities for his family, given the limited support he has in fact provided to them.
There was some debate before this court about whether the statement in the last sentence pf paragraph 36 of the Tribunal’s reasons for decision that The applicant places very little weight was a typographical error, in that the Tribunal meant to say that The Tribunal places very little weight, or whether the Tribunal misapprehended the applicants’ claims.
In my view, it was a clear typographical error. The phrase in question comes at the end of the discussion of the relevant issue and is obviously the Tribunal’s conclusion on that point. The Tribunal used much the same formulation at the end of the following two paragraphs, albeit that it stated that it was the Tribunal that placed little weight on the relevant matter.
It was open to the Tribunal to conclude that the first applicant in fact had limited responsibilities for his family in Sri Lanka, and that his application for a 457 visa was unrelated to those supposed responsibilities. The Tribunal adequately considered the question of the health of the first applicant’s father. The Tribunal simply resolved that issue adversely to the applicants.
I do not accept that the first applicant’s application for a 457 visa, and his working full time, were irrelevant considerations in the Peko-Wallsend sense[1]. It was open to the Tribunal to consider that the first applicant’s application for a 457 visa, and working full-time, were not in keeping with the first applicant’s avowed intention of coming to Australia to study. Ground 3 is not made out.
[1] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40
Ground 4
The fourth ground of review in the application is:
The Tribunal made a material error of fact which caused it to fundamentally misunderstand the Applicant’s evidence as to his intention to study part-time in 2016.
Particulars
(a)The Tribunal states at paragraph 29 of its Reasons that it ‘does not accept that the Applicant sought to study part time’, further stating at paragraph 22 that ‘it was not aware of education providers that offered courses for international students only on weekends’.
(b)Furthermore, the Tribunal noted at paragraph 22 that it asked if the Applicant had any information that showed he sought to study part-time which the Applicant did not.
(c)The evidence the Applicant provided at the hearing was that he intended to study part time if/when his 457 visa application was successful.
(d)Moreover, the Applicant specifically stated that the reason he could not provide any evidence of seeking to enrol in a part-time course whilst employed full-time as a Contract Administrator was precisely because part-time courses were not open to international students on student visas and that accordingly he intended to enrol subsequent to determination of his 457 application.
(emphasis in original)
Paragraphs 22 and 29 of the Tribunal’s reasons for decision are as follows:
22.The applicant stated he had wanted to make some money to pay for his student fees. The Tribunal noted that the applicant, by applying for the skilled visa, was stating that he did not want to study in Australia but was planning to work. The applicant stated he did want to study, just part time on weekends. The Tribunal asked if the applicant had any information to show he sought to study in this way. The Tribunal noted that it was not aware of education providers that offered courses for international students only on weekends. The Tribunal expressed its concern about the applicant being a genuine student because of his application for and work while waiting for the grant of the 457 visa.
…
29.Having failed his course, the applicant withdrew and subsequently had his enrolment cancelled. The Tribunal notes that this meant that this opportunity for the applicant to remain in Australia had failed. The applicant tried a different migration pathway, applying for a skilled visa and working full time. As the Tribunal noted, this is not a practice of a genuine student. The Tribunal does not accept that the applicant sought to study part time, the applicant was working full time as a contract administrator. He was not studying, despite that being his stated intention when he first arrived in Australia.
The court repeatedly asked the advocate for the applicants what the Tribunal had misunderstood. The advocate eventually said that it was a complete misunderstanding that the fact that the first applicant applied for a 457 visa meant that he did not want to study in Australia.
That is not a misunderstanding of the evidence. It was the Tribunal’s construction of the evidence. It was open to the Tribunal to conclude that, because the first applicant had applied for a 457 visa, he did not genuinely wish to study in Australia. This ground is no more than an attempt at impermissible merits review. Ground 4 is not made out.
Ground 5
The fifth ground of review in the application is:
The Tribunal further relied on irrelevant material with regards to the Applicant’s temporary return to Sri Lanka and subsequent break from studies thereby invalidating its decision on the grounds of jurisdictional error as per the species of error laid out by the High Court of Australia in Craig v South Australia.4
Particulars
4 (1995) 184 CLR 163 at 179.
(a)The Tribunal noted at paragraph 31 of its Reasons that the Applicant ‘took a five month break in the middle of his engineering diploma, when instead of deferring, he withdrew from his course’.
(b)The Applicant had provided evidence at the hearing that he withdrew his enrolment in October 2014, planning to return to Sri Lanka for two months to be with his family whilst his father underwent medical treatment and recovery. The Applicant further stated that his course provider had advised him that he must withdraw to take such a break from study. The Tribunal expressed concern at this as noted at paragraph 17 of its Reasons, but did not dispute or reject the Applicant’s evidence on this point.
(c)The Applicant then re-enrolled in his Diploma course and commenced studies on the 2nd March 2015, as noted at paragraph 18 of the Tribunal’s reasons with the Tribunal noting ‘some concern as this break in his studies, especially as his status as a genuine student has been questioned’.
(d)Regardless of whether the Applicant had deferred or withdrawn, given his planned trip duration at the onset was to be for two months, and that in any event he did not return to Australia until the 15th November, it was not possible for him to re-enrol in the same semester he withdrew.
(e)The next full semester commenced in March 2018.
(f)There was therefore no deliberate ‘break’ in his studies.
(g)The Applicant stated as much to the Tribunal, and the Tribunal noted it and seemingly accepted it at paragraph 18 of its Reasons but nonetheless went on to refer to this five month ‘break’ at paragraph 31 of its Reasons as part of its determination that the Applicant was not a genuine student.
Paragraphs 17, 18 and 31 of the Tribunal’s reasons for decision are as follows:
17.The Tribunal questioned why the applicant had withdrawn from his course, instead of seeking a deferment on compassionate grounds. The applicant stated his course provider would not permit this. The Tribunal expressed its concern that an education provider would require students to withdraw when there may be reasons why they needed a short break from studies, and that there are systems in place to permit this.
18.The applicant returned to Australia but did not study for some months. He was re-enrolled in his Diploma course and commenced this on 2 March 2015. The applicant stated he was not permitted to return to his studies before then, he had to wait for the next semester. The Tribunal expressed some concern at this break in his studies, especially as the applicant as a genuine student has been questioned.
…
31.The Tribunal has considered this information, and has determined that the applicant is not a genuine student. His studies, such as they were, were marked by his failure to attend lectures and subsequent failure to complete his subjects. He took a five month break in the middle of his engineering diploma, when instead of deferring, he withdrew from his course. He passed one subject in 3 semesters of study. Failing to progress, which meant that this student pathway of remaining in Australia was not available, the applicant abandoned his studies to work in Australia. He worked full time with no study while waiting for the 457 visa application to be approved. When it was refused, again realising that pathway of remaining in Australia had closed, the applicant sought to return to his studies and enrolled in the only course offered, despite not being interested in it. The applicant stated he enrolled in the course to maintain his visa condition. He had no interest in the course. This is not the action of a genuine student.
This ground seeks impermissible merits review. It was open to the Tribunal to take into account the five month break in the first applicant’s studies. That was not an irrelevant consideration. Combined with the other circumstances of the case, it was open to the Tribunal to conclude that the first applicant was not a genuine student. This ground is not made out.
Ground 6
The sixth ground of review in the application is:
Alternatively the Tribunal’s exercise of its discretion to cancel the Applicant’s visa was invalidated by ‘legal unreasonableness’ following the reasoning of Hayne Kiefel, and Bell JJ in Minister for Immigration and Citizenship v Li.5
Particulars
5 [2013] HCA 18; 249 CLR 332.
(a)Hayne, Kiefel and Bell JJ quoting Mason J from Minister for Aboriginal Affairs v PekoWallsend Ltd6 stated that an ‘administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance’ may be set aside on the grounds of ‘manifest unreasonableness’.7
(b)The Tribunal, in exercising its powers of review under s.349 of the Migration Act 1958 (Cth), must exercise its discretion reasonably and with regard to the purpose to which its discretion are directed.8
(c)The Tribunal’s discretion here was not specifically tied to any statutory purpose, as noted at paragraph [33] of its decision record; however the general requirements of reasonableness apply, as outlined in Li.
(d)In discussing the Tribunal’s consideration of its discretion, the Tribunal made reference to ‘serious reservations’ as to the Applicant’s capacity to get back on track in his course attaching great weight to his ‘past practice’9 circumstances which clearly played a substantial role in the Tribunal's exercise of discretion.
(e)Ground [2] of the present application and its associated particulars comprise an instance of failing to give weight to a relevant factor of great importance.
(f)Ground [3] of the present application, and its associated particulars comprise an instance of giving excessive weight to an irrelevant factor of no importance.
(g)Both grounds materially and substantially contributed to the Tribunal’s dim view of the ‘past practice’ of the Applicant.
6 [1986] HCA 40; (1986) 162 CLR 24 at 41.
7 [2013] HCA 18 at [72].
8 Ibid at [79].
9 AAT Decision Record case no. 1618646, at [35].
(h)This resulted in the decision being coloured by manifest unreasonableness.
(i)Accordingly ‘The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction’.10
10 [2013] HCA 18 at [85].
Paragraph 33 of the Tribunal’s reasons for decision is as follows:
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
I accept that Tribunal decisions may be set aside on the grounds of unreasonableness, as explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18.
However, the Tribunal’s decision and reasoning process in the present case does not strike me as unreasonable in the necessary sense. This ground is not made out.
Other matters
The parties were given the opportunity to provide post-hearing written submissions on issues that arose at the hearing. The first was described as the language barrier and the second as Ministerial Direction No.69.
a. Language barrier
The applicants argued that the first applicant was unable to understand all of what the Tribunal said to him and was unable to convey all he wished to say.
The first applicant elected not to have an interpreter at the Tribunal hearing, which is consistent with him attempting to study mainstream tertiary courses in Australia.
The applicants referred in their written submissions to various parts of the transcript of the Tribunal hearing. I have looked at those parts of the transcript and others. I have been unable to discern anything that suggests that the first applicant did not understand what was said to him by the Tribunal or was unable to convey to the Tribunal what he wished to say.
b. Ministerial Direction No. 69
Ministerial Direction No. 69 was made under s.499 of the Act. Subsection 499(2A) of the Act provides that decision makers must comply with it. The Tribunal in the present case did not mention Ministerial Direction No. 69 in its reasons for decision and does not appear to have complied with it.
However, Ministerial Direction No. 69 is expressed to apply to decisions under s.65 of the Act concerning student visa applications. The decision in the present case was not made under s.65 of the Act. It was made under s.116 of the Act. Therefore, Ministerial Direction No. 69 had no application to the present case.
Conclusion
As none of the grounds of review in the application has been made out, and as there is no substance in the additional matters raised, the application must be dismissed with costs. As work was done in this matter beyond the usual, I will hear the parties on the question of costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 22 February 2019
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