In v Minister for Immigration

[2015] FCCA 1377

FEDERAL CIRCUIT COURT OF AUSTRALIA

IN v MINISTER FOR IMMIGRATION [2015] FCCA 1377

Catchwords:
MIGRATION – Cancellation of Subclass 601 (Electronic Travel Authority) visa–– whether the delegates decision to cancel visa pursuant to s.116(1)(g) miscarried – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474(2), 116(1)(g)

Migrations Regulations 1994 (Cth) reg.2.43(1)(ea)

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

SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1

Applicant: CHANSIK IN

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: BRG 805 of 2014

Judgment of: Judge Vasta

Hearing dates: 30 April 2015 and 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Brisbane

Delivered on: 28 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Laidley

Solicitors for the Applicant: Fischer Migration Lawyers

Counsel for the Respondent: Mr McGlade

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The Application filed on 18 March 2015 be dismissed.

2. That the Applicant pay the Respondent’s costs of and incidental to the Application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 805 of 2014

CHANSIK IN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision made by the delegate of the Minister for Immigration and Border Protection who cancelled a tourist Visa issued to the Applicant on the 7 August 2014.

2. A decision by the delegate is a “privative clause decision” within the meaning of s.474(2) of the Migration Act 1958 (Cth). This means that an order to quash this decision can only be made if the decision was affected by jurisdictional error.

Background

1. The Applicant, who is a citizen of the Republic of South Korea, had previously been to Australia. He had worked at Sweet Strawberry Runners in Stanthorpe. This work was permitted under the visa that he had at that time.

2. Once back in South Korea, the Applicant applied online for a temporary tourist Visa. The Visa was a Subclass 601 (Electronic Travel Authority) Visa. Pursuant to Subclass 601.6, the conditions upon which such of these are issued are the following:-

   a)8115 – the holder must not work in Australia other than by engaging in a business visitor activity

   b)8201 – while in Australia, the holder must not engage, for more than 3 months, in any studies or training

   c)8527 – the holder must be free from tuberculosis at the time of travel to, and entry into, Australia

   d)8528 – the holder must not have one or more criminal convictions, for which the sentence all sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia

3. Significantly, the Applicant’s Visa was not subject to condition 8503 which states “that the holder will not, after entering Australia, be entitled to be granted a substantive Visa, other than a protection Visa, while the holder remains in Australia”.

Arrival of the Applicant in Australia

1. The Applicant flew to Australia on a Singapore Airlines flight that arrived in Brisbane on 7 August 2014. He filled out a passenger card where he ticked that he was a visitor temporary entrant, intending to stay in Australia for 2 months. In the section marked “your main reason for coming to Australia” he has signified by a X that he was here for a holiday.

2. Upon disembarkation, the Applicant went to the line for passport control. There he was asked some questions at the primary line by an officer of the Australian Customs and Border Protection Services. According to the Immigration Inspector’s report, the Applicant gave that officer the following information:-

   a)he has returned to Australia to study and travel;

   b)he wants to travel to Cairns;

   c)he is a Christian so he likes to be here;

   d)he previously worked in a car wash in Brisbane and at a strawberry farm in Stanthorpe;

   e)he will return to Stanthorpe today; his friend Hwang Soo Hyan will drive from Stanthorpe to pick him up or he will catch a shuttle bus;

   f)he pays $100.00 per week to an old guy for rent;

   g)he has $40,000.00 in his bank account;

   h)he will try to find a language school;

   i)he has a car, TV, furnishings, books and clothes in Stanthorpe;

   j)he has no return ticket;

   k)maybe he will meet family friends, Erica and her mother, in Chermside Brisbane for lunch before leaving for Stanthorpe;

   l)he is not in a relationship with anyone onshore.

3. The baggage of the Applicant was searched. Found in that baggage was a business card for Erica Choi and messages and contact log for UNC onshore. The Applicant further deposes that the Immigration Inspector found receipts in his bag and said words to the effect “what are these receipts… Isn’t this proof that you come here in order to get a job?”

Information Gathered by the Delegate

1. The Applicant was detained and friends of the Applicant were contacted.  This aspect was the subject of much discussion by Counsel for the Applicant. Counsel took issue with a number of the statements recorded by the delegate and called, as witnesses in the hearing, Mr Rigden and Mr Green. It is important for me to lay out what I consider to be the state of the evidence before the delegate.

2. Ms Choi was contacted. She told the delegate that:-

   a)she and the Applicant lived in a share house at Gordon Park together;

   b)the Applicant has returned to Australia to decide if he will study or not;

   c)the Applicant will stay with her and her mother at Chermside while he studies;

   d)the Applicant will pay $100.00 per week for board at 2/56 Wallace Street, Chermside;

   e)she will meet the Applicant this afternoon in Brisbane city.

3. The Applicant contends that the proper context to look at this information is that Ms Choi was conveying to the delegate that if the Applicant decided to apply to study in Australia, then he would be able to stay with her. I think that this is the correct interpretation of her information.

4. Mr Rigden, who was a friend of the Applicant’s in Stanthorpe was contacted as well. The report of the Immigration Inspector notes that Mr Rigden said:-

   a)he knew the Applicant for 12-15 months;

   b)they met in Stanthorpe;

   c)the Applicant had been working at a strawberry farm in Stanthorpe and attended church;

   d)the Applicant told him he might return to Stanthorpe on 10 August 2014 to study English and work.

5. In the Form 1111 (Notice of Intention to Consider Cancellation), the delegate has written the following “your church friend, Glynn Rigden, was contacted on 0412 028 623 and he stated that you had told him that she would be returning to Stanthorpe to work and to continue attending church.”

6. In an affidavit sworn on 10 September 2014, Mr Rigden swore that his recollection of the conversation was different. He says that he told the delegate that “I think he wants to study” and when asked about the Applicant working, Mr Rigden replied “he could, I don’t know”. When asked would he be working at Sweet Strawberry Runners, Mr Rigden replied “that’s where he worked before”. Mr Rigden says in his affidavit “I definitely did not say that Chuck (the name used by the Applicant for his English speaking friends) told me he would be returning to Stanthorpe for work; I did say that I knew Chuck wanted to attend church here”.

7. The Applicant submits that the proper evidence before the delegate was what is contained in the notes and what is contained in the affidavit rather than the summary contained in the Form 1111 notice.

8. In light of there being no evidence to the contrary and that Mr Rigden maintained his testimony under cross-examination, I am of the view that I should regard the evidence of Mr Rigden in that manner.

9. The Applicant was then interviewed. An interpreter attended that interview via telephone and the interview was digitally recorded. The transcript of this interview, and a subsequent interview are contained in the affidavit of Alexander Charles John James filed on 24 March 2015.

The First Interview

1. Whilst it is true that the interview needs to be read in the whole so as proper context can be given to it and whilst it is true that it is necessary at times to listen to the actual interview to understand what is being said, I will reproduce the portions that I consider to be important to note in these reasons. CM is the delegate and CI is the Applicant.  I have removed the references to the interpreter which is contained in the original transcript.

   “…

   CM: Alright. So we’ll go over what exactly I’ve already covered with you outside so when I first spoke with you, you said you were coming to Australia, you would go to Stanthorpe for 2 days and then go to Brisbane and eventually travel to Cairns. Okay so you said a friend would pick you up to take you to Stanthorpe for 2 days and then you would come back to Brisbane. You then stated that you would look for a school to study at, an English school to study while you are here in Australia. But you didn’t know where exactly. And then while we were having our baggage search you said that you would travel to Stanthorpe for 2 days, come back to Brisbane to study and try to find a school and stay here in Brisbane.

   Interpreter: I didn’t get that last bit, after study and then –

   CM: I’ll study in Brisbane yeah. And then you also said then that you would go to Stanthorpe for 2 days with a friend that you would call to come pick you up from Stanthorpe, he would take you up there, you would stay for 2 days and then you would travel to Brisbane and then maybe Coffs Harbour. And lastly when I spoke to your onshore contact Glen you then changed your story again, so can you tell me what is it from the airport, once you get out of the airport today, where will you go and what will you do?

   CI: I would stay…today [inaudible] I don’t want to go to Stanthorpe there is no fixed, there isn’t really fixed schedule. I [inaudible] few people here I have to see and try [inaudible] people [inaudible] Or Coffs Harbour but not fixed schedule because I’ve got somewhere to stay with them so I can [inaudible] over there.

   CM: Okay so when you head out to Coffs Harb- to Stanthorpe tonight who will you stay with? Who will you stay with in Stanthorpe?

   CI:[Translation] Say that again?

   CM: Who will you stay with in Stanthorpe if you head out there tonight or tomorrow?

   CI: I got friends in Stanthorpe so I can contact him and he’ll pick me up either stay his place or the other alternate friend as well in Coffs Harbour I’ve got girlfriend so I can stay with her.

   …

   CM: Okay. What have you done to find a school here in Australia?

   CI: In Korea I would have made enquiries about Australian school and the price looked strange so I was going to find out in Australia see the overseas student [inaudible]

   CM: So in Korea you made enquiries. Who did you make enquiries with?

   CI: Only [inaudible] in Korea.

   CM: Who did you contact?

   CI: Previous occasion I asked making enquiries asked at front desk after we searched through the internet in Korean site.

   CM: So you looked on Naver.com?

   CI: Yeah sure.

   CM: Naver? Is that in Brisbane?

   CI: Just Naver

   CM: Just Naver. Okay. So you didn’t contact any schools directly? Did you contact, did you contact any schools directly?

   CI: [inaudible] the price is much dearer and the more expense that the bigger one I was worried about I’d get conned so I just actually tried –

   CM: You’re worrying about the bigger ones what sorry?

   CI: Worried about the fraud he was worried about the [cost] for the big one sorry?

   CM: Worried about the, was it the cost? What is he worried about with the big ones?

   CI: I was worried that conning…being conned.

   CI: People saying ‘ok just come in here, my house is $100…[inaudible]

   CM: Oh okay…someone taking your money and then not giving you the school?

   CI: Just saying don’t believing in company because some people is taking [still] money so yeah.

   CM: Do you know how much as student visa is?

   CI: Oh yes, usually it’s 6 months or $300 or $500 and one year’s maybe $600, $500, 6-700 hundred dollars.

   CM: Okay. What I’m talking about is the student visa. How much is a student visa? What is it going to cost you for a student visa?

   CI: Oh yes?  I tell you the amount?

   CM: Yes how much?

   CI: $10,000.

   CM: $10,000 for a student visa.

   CI: Yeah or… are you talking about eh whole figure? I don’t really understand you.

   CM: You said you were going to apply for a student visa. How much is a student visa?

   CI: 700, or 7 to 8 million Won.

   CM: How much interpreter?

   INTERPRETER: 7 or 8 million Won.

   CM: Okay. Alright. So what type of work were you going to do while you are here in Australia? What work will you do here in Australia?

   CI: If it’s changes, it’s now it’s no work because I’m [inaudible] visa so if it change to student visa and[inaudible] 20 hours work so maybe in I going to for 20 hours in shop if that was only 20 hours.

   CM: What sort of shop would you work at?

   CI: Just in[inaudible] farm yes in [inaudible] just maybe 20 hours work.

   CM: Okay is that where you were working before you left?

   CI: Yes before work.

   CM: Okay in July? Before you left Australia.

   CI: Yes

   CM:[inaudible] So what’s it called? Strawberry runners farm. What is the name of the farm?

   CI: Sweet Strawberry Runners.

   CM: And who is your boss there?

   CI: Boss name is [inaudible] Wally.

   CM: Okay so Wally knows that you’re coming back to work?

   CI: Yes maybe he don’t know, he don’t know but I just in case ask he or but I’m and change student visa, just looking for a just a job, just only 20 hours work yeah.

   CM: So you’re going to work in Stanthorpe on the farm for 20 hours a week and where are you studying?

   CI: I’m studying school… I like to work in Stanthorpe I like to study in Stanthorpe too however no school in Brisbane so I’ll when I got to school I can go Brisbane and come back [inaudible]

   CM: So you would drive to Brisbane to come to school-

   CI: Oh yes. I just self drive (sic) yeah.

   CM: And how long is it to drive?

   CI: Usually it’s a 2 hours, or 2 hours and a half but I think that just usually just 2 hour yes, maybe 180 kilometre or 70 kilometre yes.

   CM: Do you have friends that do that? Do you have friends that work in Stanthorpe but study in Brisbane?

   CI: No I’m just all alone. No. No [inaudible]

   …

   CM: Okay. And how much money do you have?

   CI: In now?

   CM: Yes.

   CI: In Australian dollar(sic)  and 4 4 40 000 000.

   CM: 40,000 Australian dollars.

   CI: Yes.

   CM: And do you have that from your working holiday visa?

   …

   CM:  So you, did you know when you left Australia that you would be back very quickly?

   CI: Oh because in Korea When I in Korea I got, I did the work like a lady so I camehere (sic) for the certain purpose to study English I don’t think I come back so quickly. I thought I came here to visit the people I particularly I wanted to see when I finished workinKorea (sic).

   CM: Okay, but you were only here a month ago. You spent 2 years in Australia.

   CI: Yes.

   CM: And you were only out for one month.

   CI: Yeah, yes, yes.

   …”

2. At the conclusion of the interview the delegate informed the Applicant that she was looking at issuing the Applicant with a Notice of Intention to Consider Cancelling the Visa.

Further Information Gathered by the Delegate

1. The delegate then contacted Mr Green from Sweet Strawberry Runners. In the report the delegate records her conversation with Mr Green as follows:-

   a)before the Applicant left for Korea he asked Mr Green if he could return to work;

   b)Mr Green stated that they are expecting the Applicant to return to work. He will need to work a minimum of 40-45 hours until season arrives in a few weeks and then he will need to work 55-60 hours per week. Mr Green advised that this is the same role that the Applicant was working in when the Applicant departed;

2. Mr Green has sworn an affidavit and gave evidence to the effect that he remembered the conversation as being more in keeping with the following:-

   a)the delegate asked Mr Green if the Applicant was coming back to work for Sweets Strawberry Runners;

   b)Mr Green informed the delegate when the Applicant left he didn’t say he was coming back to Stanthorpe but did mention that he was wanting to study in Australia;

   c)he also informed the delegate that he had told the Applicant that if he was able to come back to Australia with the correct work Visa that they would be happy to employ him;

   d)the delegate asked Mr Green how many hours the Applicant worked for them in a normal week. Mr Green’s response was that the Applicant worked 40 to 60 hours depending on the season. When asked about the Applicants pay rate Mr Green stated a range of pay rates that the supervisors usually receive;

   e)Mr Green did not ever state that there was a prearrangement for the Applicant to return to sweets strawberry runners.

3. There is a difference in what the delegate has noted and what Mr Green swears was the conversation. I am of the view that I should accept the evidence of Mr Green.

The Second Interview

1. The delegate then issued a Notice of Intention to Consider Cancellation. She listed a number of matters in that notice as possible grounds for cancellation. She gave that notice to the Applicant and read it out to him. An interpreter was present by telephone. At the conclusion of her reading the notice, the Applicant and the delegate both signed the notice. The delegate gave the Applicant 10 minutes to gather his thoughts so that he could then tell the delegate what he had to say in answer to that notice. She then resumed her interview. The relevant part of the second interview is reproduced below:-

   “…

   CM: Interview recommenced at 15.30 [Interpreter talking] Okay so what do you have to say?

   CI: [Translation] It’s not fair, you know I am sure this is not right you know. I definitely am here in Australia for study only not for any other purpose. Well okay when actually the plan actually start from my [inaudible] plane when I arrive in Australia but they don’t know about my circumstances, my current circumstances, and also there are Australian who they don’t even know what is the working holiday visa or tourist visa or anything else, and so they don’t know my situation.] The reason why I changed the statement was I changed my statement before because I definitely I’m not, I’m innocent, I didn’t do any wrong thing so that’s why just change my statement. This is not fair for me because I also, I have a level of tension and stress and all you do is [inaudible] because I cannot speak clearly and that’s why everything is [inaudible] stress[inaudible] saying to the officer. Well when I put down for on the passenger card I [inaudible] only for the purpose but I, my intention is I want to learn English, I want to learn English only that is my intention to do that. The reason why I first [inaudible] Naver website checking out all the English course for Australia [inaudible] because I someone was lying about the course and I don’t want to be [inaudible] [fraud?] for the course so that’s why I like to get some other initial reference and later [inaudible] after the reference that’s why my intention was [inaudible] if I stay here for work purpose only [inaudible] I brought $40000 Australian money to come here. This is required hard times for because I have [inaudible] purpose it’s very hard line for me [inaudible].

   CM: What’s a hard line for you sorry?

   INTERPRETER: He had a first [inaudible] the interview with the officer and the situation it was [inaudible] very hard.

   CI: Further reconsideration for my visa because if I switch from a tourist visa to student visa I would not apply again for more than 20 hours of work or anything I already [inaudible] visa [inaudible] for my visa Australian. I just came to Australia [inaudible] I arrived in Australian and [inaudible] I love Australia very much and I did attend here for you know to do any wrong thing. Please trust me. For me [inaudible] it’s study hard for English so I get a lot more fluent English that is my intention, that is my hope so please don’t [inaudible] my hope, please. Yes this is my only one entire life, my hope, so please reconsider for my application, please.

   CM: Okay

   CI: Thank you.

   CM: Thank you. So why did you talk to Mr Green before you left and organise that you’d be coming back to work?

   CI: Ah yes. I was just checking with him because Mr Green don’t know that, he don’t know whether I can if they’ve approved the visa so that’s why he was talking like that but he was checking with Mr Green again please. Also Mr Green should know the visa, the student visa we cannot work for more than 20 hours per week so they should know because on the previous occasions I was working more hours because it’s a very [inaudible] time but the reason for checking with Mr Green because they didn’t know my situation, a lot of people have got this time. Because of the [inaudible] Mr Green is not actually a [inaudible] person he is actually working as a manager but there are some [inaudible] working there I was working about 2 months and after break had a holiday and after the holiday I came to [inaudible] and started working there that’s why he probably thinks if I come today he probably thinks I am working like that you know. This is not fair because this is not right [inaudible] of me so I had another person who can check it out [inaudible] and a condition because I [inaudible]

   CM: You say it’s not fair yet you have come here, you say first you are a tourist then you say all you want to do is study English but yet you were going right back to where you were working and you don’t even know about an English course. You can’t tell me one school or even know how much to get you the visa.

   CI: Well I [inaudible] there is one or two classes a week but I did have one class a week for [inaudible] I [inaudible] difference. I actually [inaudible] referred to last I [inaudible] but I have a right to [inaudible] first before I made a decision, you know that’s why [inaudible]. Because I go back when I should have come here with student visa from the beginning I should not be [inaudible] because it is not my intention to do that you know [inaudible]. That is only reason why I get the visa to Australia, for the study of English. [inaudible] the only intention I am thinking of in my mind when I come I have to get back on student visa [inaudible] but when I can’t I have to [inaudible] the student visa [inaudible] rather than the [inaudible] visa.

   …”

The Decision of the Delegate

1. The delegate then decided to cancel the Visa of the Applicant. She completed the Form 1111 and detailed the evidence and findings about whether she was satisfied the grounds the cancellation existed.

2. In those sections she wrote the following:-

   “I have weighed up the evidence before me and I’m satisfied that grounds exist to cancel your subclass 601 (Electronic Travel Authority) for the following reasons:

   -You stated on your incoming passenger card your occupation as a student and that you intended a 2 month holiday in Australia.

   -You initially stated that you would travel to Stanthorpe for 2 days, Brisbane for 3 weeks and then Cairns, Sydney and Melbourne. When questioned what you will do in Cairns, Sydney or Melbourne on this visit, you were unable to provide the names of any tourist attractions or activities or provide any further details.

   -You initially stated that you are here for a holiday but later admitted that you would look for a school in Australia and return to work at ‘Sweets Strawberry Runners’ in Stanthorpe.

   -When further questioned about your intention to work, you stated would obtain a student visa. At interview today you stated that you wanted to study English at a language school however you have no knowledge of the cost of a student visa or what is required to lodge the application. You have not contacted any education providers or know the cost of any courses. You stated the only research you have conducted to find an education provider is via the Korean website ‘Naver’.

   -When we contacted ‘Sweets Strawberry Runners’ today on 07 4683 6209, Andrew Green, HR Manager, confirmed he discussed with you prior to your departure from Australia, the expectation for you to return to Stanthorpe to continue work in your supervisory role, working 40 – 60 hours per week and will be paid $23.50 per hour. Given the above information. I find a student visa would not be appropriate for a minimum of 40 hours work per week as stated by Mr Green.

   -When questioned about your travel and accommodation plans, you changed your statements despite being cautioned to provide honest and truthful answers. You initially stated that you would stay in Stanthorpe for 2 days with your friend Hwang, Soo Hyun and then stay with your friend Choi, Erica in Brisbane while you studied. You then changed your statement again and advised that you planned to live and work in Stanthorpe. I am satisfied that despite the grant of visa, the visa holder did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism of business purposes for which the visa was granted or ceases to have that intention.”

The Power to cancel a Visa

1. The decision by the delegate was based on the power under s.116(1)(g) of the Migration Act 1958 (Cth)which reads:-

   “116 Power to Cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (g) a prescribed ground for cancelling the visa applies to the holder.

   …”

2. The “prescribed ground” upon which the cancellation was affected was the grounds specified in reg.2.43(1)(ea) which reads:-

   “2.43 Grounds for cancellation of visa (Act, s 116)

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   …

   (ea) in the case of a Subclass 601 (Electronic Travel Authority) visa –that despite the grant of the visa, the Minister is satisfied that the visa holder:

   (i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or

   (ii) has ceased to have that intention;

   …”

Jurisdictional fact

1. The jurisdictional fact upon which an error must be demonstrated is the satisfaction of the delegate of the Minister that the Visa holder did not have an intention only to stay in, or visit, Australia temporarily for the tourism purposes for which the Visa was granted.  In other words, it must be shown that it was not open for the delegate to be satisfied of that matter.

This Application

1. The original application was filed on 11 September 2014 before being amended on 18 March 2015.  The grounds of this application are as follows:-

   “Ground 1

   1. The delegate erred in concluding that the jurisdictional fact in prescribed ground (ea) existed such that power to cancel the Applicant’s Subclass 601 (Electronic Travel Authority) was enlivened.

   Particulars

   (a) The relevant jurisdictional fact in prescribed ground (ea) is the Applicant’s intention.

   (b) The delegated concluded that the relevant jurisdictional fact in prescribed ground (ea) existed because the delegate found:

   (i) the Applicant was dishonest and untruthful and deliberately sought to deceive the Department of Immigration and Border Protection (DIBP);

   (ii) the Applicant’s dishonesty and untruthfulness and deliberate deception meant the Applicant’s statements and representations should be given “little weight”.

   (c) A finding that the Applicant was dishonest and untruthful and deliberately sought to deceive the DIBP was not reasonably open on the evidence.

   (d) Giving appropriate weight to the Applicant’s statements and representations supported a conclusion that the relevant jurisdictional fact in prescribed grounds (ea) did not exist.

   (e) A finding that a jurisdictional fact exists, when it does not, is a jurisdictional error.

   (f) Paragraphs 38 to 41 of the Applicant’s outline of submissions (Amended) provide further particulars.

   Ground 2

   2. The delegate erred in concluding that the jurisdictional fact in prescribed ground (ea) existed such that power to cancel the Applicant’s Subclass 601 (Electronic Travel Authority) was enlivened.

   Particulars

   (a) The relevant jurisdictional fact in prescribed ground (ea) is the Applicant’s intention.

   (b) The delegate concluded that the relevant jurisdictional fact in prescribed ground (ea) existed because the Applicant intended to work 40 to 50 hours per week while in Australia.

   (c) A finding that the Applicant intended to work 40 to 50 hours per week while in Australia was not reasonably open on the evidence.

   (d) A finding that the Applicant did not intend to work 40 to 50 hours per week while in Australia supported a conclusion that the jurisdictional fact in prescribed ground (ea) did not exist.

   (g)(sic) A finding that a jurisdictional fat exists, when it does not, is a jurisdictional error.

   (e) Paragraphs 42 to 50 of the Applicant’s outline of submissions (Amended) provide further particulars.

   Ground 3

   3. The delegate took account of an irrelevant consideration in deciding to cancel the Applicant’s Subclass 601 visa, namely, whether the Applicant would comply with the conditions of a student.

   Particulars

   (a) The delegate found that a student visa would not be appropriate for a minimum of 40 hours work per week. That finding was a material consideration in the delegate deciding to cancel the Applicant’s Subclass 601 visa.

   (b) A Subclass 601 visa is not a student visa.

   (c) The Applicant intended to only undertake the following activities while in Australia under his Subclass 601 visa:

   (i) tourism activities, namely visiting friends in various parts of Australia and seeing various parts of Australia;

   (ii) evaluation of the availability and suitability of English language courses in Stanthorpe and Brisbane, including potentially attending some trial classes.

   (d) The activities in (c) are allowable activities under a Subclass 601 visa.

   (e) If the Applicant found an English course he wished to attend in Australia, the Applicant intended to apply for a student visa. The Applicant could apply for a student visa while in Australia under Subclass 601 visa.

   (f) The degree of compliance with a visa the Applicant may or may not have applied in the future was not a relevant consideration in respect of whether grounds existed to enliven the power to cancel the Applicant’s Subclass 601 visa.

2. The problem that I have with these grounds is that they assumed that findings made by the delegate constitute jurisdictional facts. They do not. They are findings made which explain why the delegate found in the way that she did. But this is not a merits review. To impugn the decision of the delegate based upon these grounds would, in my view, constitute a review based on the merits.

3. There are many conclusions that the delegate has made that might be questioned in a merits review. I have already found that the actual state of the evidence was different to what the delegate has referred to in justifying her reasons.

4. The Applicant has urged me to find that the evidence is in keeping with a set of facts that has the Applicant coming to Australia to look at schools to study English.  If he found the one that suited him best then he would apply for a student visa and work for not more than 20 hours a week.

5. If I had been hearing the matter as an application de novo, I may well have come to a different decision that of the delegate. But that is not my role, nor is it for me to find a jurisdictional error simply to substitute a decision that I would see as being open on my view of the evidence.

6. As the grounds for this application are all predicated upon an incorrect assumption that it is the Applicant’s intention that is the jurisdictional fact, the grounds must fail. 

Jurisdictional Error

1. Notwithstanding that I reject the Applicant’s contention that the jurisdictional fact in this matter is the Applicant’s intention, I must still be convinced that there is no jurisdictional error that has been made. That is, I must be convinced that it was open for the delegate to be satisfied that the Applicant lacked the requisite intention.

2. Questions of reasonableness do not enter into this equation. Reasonableness is only a factor when one is looking at the exercise of the discretion. There is no discretion being exercised by the delegate; the delegate is either satisfied or is not satisfied. (Discretion may enter the equation but only after the question of satisfaction has been answered, but this fact is not relevant to the issue at hand.) Whilst the Applicant has submitted that the decision of the delegate is “illogical” or “irrational”, to my mind, this argument only goes to the point of whether it was open for the delegate to be so satisfied. It follows that if it was not open for the delegate to be so satisfied, the decision would be affected by jurisdictional error, whether it was illogical and irrational or not.

3. In this view, I am comforted by the reasoning of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at paragraphs 128 to 135:

   128. If, despite the undeniable semantic overlap between "irrationality", "illogicality" and "unreasonableness", "Wednesbury unreasonableness" is confined to the exercise of a discretion in circumstances where no reasons are required, then the approach articulated in SGLB emphasised above can be seen as occupying somewhat different ground. On the other hand, to the extent that a standard of reasonableness, of wide application to decision-making, has emerged from Wednesbury, there will be inevitable overlap with that standard and a standard of rationality.

   129.It can be acknowledged that the contemporary invocation of "illogicality" or "irrationality" as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of "Wednesbury unreasonableness" in immigration law. Equally it may be that the development of "irrationality" as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of "illogicality" or "irrationality" must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do "illogicality" and "irrationality" fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is "clearly unjust”, "arbitrary", "capricious" or "Wednesbury unreasonable"”?

   130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   Was the Tribunal's fact finding "illogical" or "irrational"?

   132. Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.

   133. However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. There was evidence that the first respondent was married with four children and that he regularly visited Pakistan to see his family after the time at which he said he commenced, as he put it, "the practice of homosexuality" in the UAE. In particular, he visited his family for three weeks before coming to Australia. During the time when he said he engaged in the "practice of homosexuality" in the UAE, and when he visited the United Kingdom, the evidence was that under both civil law and Shari'a in the UAE homosexual activity was criminalised. The first respondent also gave comprehensive evidence of homosexual activity in the UAE which was uncorroborated. The Tribunal saw the first respondent give evidence and sought answers and explanations from him. Such was the evidentiary context in which the Tribunal determined that the first respondent's conduct, first in returning to Pakistan and secondly in failing to seek asylum in the United Kingdom, was conduct which was inconsistent with his claimed fears of persecution as a result of homosexuality.

   134. The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows: the Tribunal appeared to accept that homosexuals as a social group in Pakistan were the subject of persecution. It also appeared to assume that a person with a genuine fear of persecution as a homosexual in Pakistan would not go back to Pakistan and that a person with such a fear would seek asylum at the first available opportunity. The Tribunal then examined the first respondent's conduct in the United Kingdom in 2006 and in returning to Pakistan for three weeks in 2007. The Tribunal asked whether that conduct was consistent with a fear of persecution based on the practice of homosexuality said to have occurred in the UAE. The Tribunal then concluded that the conduct was not consistent with the claims of homosexual conduct said to form the basis for the fear of persecution. The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed. It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no-one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality. The Federal Court differed from the Tribunal in finding that the first respondent's fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable.

   135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

4. In SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1, Rares J at paragraph 3, interpreting what was said, commented that Their Honours Crennan and Bell JJ,

   “held that illogicality or irrationality sufficient to give rise to jurisdictional error meant that, where the question was whether a decision-maker had been satisfied of a matter, the decision to which he or she came was one at which no reasonable decision-maker could arrive on the same evidence.”

1. The issue for me is not to decide whether the delegate was correct in the findings that she made, but rather whether, on the state of the evidence that was properly before her, the decision that she made, that she was satisfied of the intention of the Applicant, was a decision upon which a reasonable decision-maker could arrive. I use the word “reasonable” to follow what was said in SZOOR (Supra), but it is clear that the word “reasonable” pertains to the decision-maker and not to the decision itself for the reasons previously expressed.

Was it open for the Delegate to be so satisfied?

1. On the evidence before the delegate, there were a number of inconsistencies in what the Applicant had said. These are:-

   a)The incoming passenger card was marked that the Applicant arrived in Australia for a holiday but in explaining what he was going to do in Australia, the Applicant put the emphasis on study. In fact, the last “plea” he made to the delegate was an admission that he had only come here to study.

   b)The Applicant spoke of going to Cairns, Sydney and Melbourne however gave no details as to what he was proposing to do in relation to travelling to those cities.

   c)The versions that the Applicant gave as to what he would be doing in Australia were inconsistent. Whilst I understand that there was a language barrier, this does not explain the lack of detail and certainty as to what his plans in this country were. The Applicant admitted that he had changed his story.

2. In regulation 1.03, the definition of tourism excludes work and study (other than the study of an “informal study course”).

3. The Applicant had been in Australia for approximately 2 years before returning to South Korea about a month before 7 August 2014. A reasonable decision-maker could look at that circumstance as well as the inconsistencies in the Applicant’s versions. It is difficult to reconcile that a person who had been in Australia for such a lengthy period could return within a month for a 2 month holiday and have no plan as to what they would be doing.

4. None of the onshore contacts of the Applicant knew that he would be arriving on 7 August 2014. There was no one at the airport to greet the Applicant. The address on his passenger card was an address in Stanthorpe, which was a town where he had previously worked. If the main purpose of the entry into Australia was travel and study, Stanthorpe is a very unusual town for the Applicant to base himself.

5. Whilst it may not be the conclusion that I would draw, I am of the view that it was clearly open to the delegate upon the evidence that she had before her to be satisfied that the Applicant did not have the intention to only stay in Australia temporarily for the tourism purposes for which the Visa is granted.

Conclusion

1. I can find no jurisdictional error. I dismiss the application and order the Applicant to pay the first respondent’s costs fixed in accordance with the scale in the sum of $6,825.00.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 28 May 2015