KAUR v Minister for Immigration

[2018] FCCA 3261

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3261

Catchwords:
MIGRATION – Administrative Appeals Tribunal – student (temporary)
(class TU) higher education sector (subclass 573) visa – application for extension of time – application filed 213 days out of time – extension of time application granted – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth).

Cases cited:

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs

(2004) 205 ALR 198

DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA

489

Hunter Valley Developments v Cohen [1984] FCA 176

M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR

520

MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335

Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009]

HCATrans 262

Shrestha v Minister for Immigration and Anor [2015] FFCA 2262

SZLIH v Minister for Immigration and Citizenship [2009] FCA 108

SZOCH v Minister for Immigration & Anor [2010] FMCA 300

SZUWX v Minister for Immigration [2015] FCA 1389

Vu v Minister for Immigration [2008] FCAFC 59

WZASC v Minister for Immigration & Anor [2013] FCCA 1452

WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA

334

First Applicant: SHARANJEET KAUR

Second Applicant: KIPPSY SINGH

Third Applicant: GAVIN DHILLON

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 825 of 2016

Judgment of: Judge Mercuri

Hearing date: 25 June 2018

Date of Last Submission: 25 June 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the applicants: In person

Solicitors for the applicants: None

Advocate for the respondents: Mr Cunynghame

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The applicants’ application for an extension of time filed on

   
   

   22 April 2016 is granted.

2. The applicants’ application for judicial review filed 22 April 2016 is dismissed.

3. The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 825 OF 2016

SHARANJEET KAUR

First Applicant

KIPPSY SINGH

Second Applicant

GAVIN DHILLON

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant filed an application on 22 April 2016 under the

   
   Migration Act 1958

   (Cth) (“the Act”) seeking:

   a)an extension of time to apply for judicial review of the decision of the second respondent, made on 18 August 2015; and

   b)

   if an extension of time is granted, judicial review of the decision of the second respondent, made on 18 August 2015 by which the tribunal affirmed a decision of a delegate of the first respondent, made on 13 January 2015 cancelling the first named applicant’s student (temporary) (class TU) Higher Education Sector

   
   

   (subclass 573) visa (“the visa”).

2. The tribunal’s decision is found in the court book at pages 168 to 174.

Summary

1. For the reasons that follow and on balance, the application for an extension of time is granted, however, the applicants’ substantive application for judicial review is dismissed. The applicants are ordered to pay the first respondent’s costs in a sum to be fixed.

Background

1. The background facts in this matter are not in dispute. The following summary has been extrapolated from the Minister’s outline of submissions.

2. The first applicant applied for and, on 8 February 2014, was granted, a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa. The second applicant is the first applicant’s husband and the third applicant is the first and second applicant’s child. 

3. A criterion applicable to the grant of the first applicant’s student visa was that the first applicant was an ‘eligible higher degree student’ as defined by clause 573.111 of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”) and that she satisfied the primary criteria set out in subclause 573.223(1A) of the Regulations.  

4. On 14 November 2014, the Department sent the first applicant a Notice of Intention to Consider Cancellation of her student visa under

   
   

   section 116 of the Act (“the NOICC”), in which it put her on notice that there appeared to be grounds for the cancellation of her student visa and invited her to comment and to provide reasons why her visa ought not be cancelled.[1]  

   [1] Court book pages 3 to 7.

5. On 13 January 2015, a delegate of the Minister cancelled the first applicant’s visa on the basis that there was a ground for cancellation under section 116(1)(a) of the Act, namely that the first applicant was no longer an eligible higher degree student as defined by clause 573.111 of the Regulations and therefore did not satisfy the requirements of clause 573.223(1A) of Schedule 2 of the Regulations.

6. The delegate also weighed all the relevant factors and exercised their discretion to cancel the first applicant’s visa.[2]

   [2] Court book page 68 to 72.

7. Also on 13 January 2015, the first applicant wrote to the Department providing a response to the NOICC in which she:

   a)said she had been unwell and unable to complete her studies at Queensland University of Technology (“QUT”) and had sought a release from QUT on that basis; and

   b)provided the medical certificate she had provided to QUT together with her correspondence seeking a release.

8. The first applicant stated that she had in fact sent her response to the NOICC prior to the delegate having made their decision. The first respondent concedes that the applicant had emailed the Department prior to the delegate’s decision but that it had not been attached to her record and recommended that the first applicant apply to the tribunal for a review of the delegate’s decision.

9. On 15 January 2015, the first applicant applied to the tribunal for a review of the delegate’s decision.[3]  

   [3] Court book page 73 to 75.

10. By letter dated 5 March 2015, the first and second applicants were invited to appear before the tribunal to provide evidence and present arguments in relation to the review.[4] The meeting was scheduled to occur on 19 May 2015. In this correspondence, the applicants were also advised that if they wished to provide any further documents or information they wanted to rely on at the hearing, it was to be provided to the tribunal by 12 May 2015.

    [4] Court book page 107 to 109.

11. On 14 May 2015, the first applicant’s psychologist provided a report as to her psychological state at that time.[5] The report, beyond setting out the applicant’s visa and study background, asserted that the applicant was experiencing an “Adjustment Disorder” with anxiety and depression. The report indicated that this was due to her experiences she faced whether academic studies, contraventions of her visa conditions, and uncertainty relating to her ability to resume and complete her studies in Australia.[6]

    [5] Court book page 138 to 140.

    [6] Court book page 138 to 140.

12. The first and second applicant attended the hearing before the tribunal on 19 May 2015 and were accompanied by a representative.[7]

    [7] Court book page 142 to 144.

13. On 18 August 2015, the tribunal handed down its decision in which it affirmed the decision of the delegate.[8]

    [8] Court book page 168 to 174.

14. The first applicant made an application for Ministerial intervention which was rejected by letter dated 6 April 2016.[9] 

    [9] Court book page 175 to 177.

15. The applicants then filed this application 22 April 2016.[10]

    [10] Court book page 178 to 186.

The tribunal’s reasons

1. The tribunal found that on 7 July 2014, the applicant had ceased to be enrolled in a principal course of study, and therefore was not an eligible higher degree student. As such, the circumstances which permitted the grant of the visa no longer existed.[11]

   [11] Court book page 171 at paragraph [14].

2. The tribunal was therefore satisfied that the ground for cancellation under section 116(1)(a) of the Act existed.[12]

   [12] Court book page 171 at paragraph [15].

3. In considering whether the power to cancel the visa should be exercised, the tribunal had regard to the Department’s procedures advice manual (“PAM3”) “general visa cancellation powers”.[13] Relevantly, the tribunal:

   a)was satisfied that the first applicant had travelled to Australia with the intention to study;[14]

   b)had regard to the first applicant’s evidence that her father had supported her financially with the payment of her course fees, and found that the visa cancellation would not cause any substantial degree of hardship on the applicant or her family[15];

   c)did not consider that the first applicant’s claims about the weather in Queensland, the fact that she had to purchase bottled water, her loneliness, her medical issues, or her move to Melbourne amounted to extenuating or compassionate circumstances;[16]

   d)did not accept the first applicant’s claims that she was not provided with appropriate support services from QUT, and found that it was the first applicant’s decision to request her course cancellation, being something that was in her control, which led to her failing to comply with condition 8516 of the visa;[17]

   e)found that the first applicant was fully aware of the need to remain enrolled in a Streamlined Visa Processing (“the SVP”) provider and did not accept that she was incorrectly advised by a migration agent with respect to this issue;[18]

   f)noted that, although the first applicant had received offers from SVP providers, she had failed to maintain enrolment in any courses provided by SVP providers;[19]

   g)did not accept that QUT had failed to provide the first applicant with a transcript of the courses that she had completed with them;[20] and

   h)accepted that the first applicant’s response to the NOICC was not considered by the delegate, however noted that it had reviewed the first applicant’s case de novo and had considered the contents of the response, but had not given any weight to the delegate’s omission to consider the response.[21]

   [13] Court book page 171 at paragraph [16].

   [14] Court book page 171 at paragraph [17].

   [15] Court book page 171 at paragraph [18].

   [16] Court book page 171 at paragraph [19]; page 172 at paragraph [20]; and page 173 at paragraph [24].

   [17] Court book page 172 at paragraph [21] and page 173 at paragraph [24].

   [18] Court book page 173 at paragraph [25].

   [19] Court book page 173 at paragraph [26].

   [20] Court book page 173 at paragraph [26].

   [21] Court book page 173 at paragraph [28].

4. The tribunal did not consider that any of the circumstances mentioned above amounted to extenuating or compassionate circumstances, and considering the circumstances of the case as whole, concluded that the visa should be cancelled.[22]

   [22] Court book page 173 to 174 at paragraph [29] and page 174 at paragraph [35].

5. The tribunal otherwise found that it did not have jurisdiction with respect to the second applicant pursuant to section 348 of the Act, as the decision before the tribunal was with respect to the first applicant only. The tribunal noted that the second applicant’s visa was automatically cancelled by the operation of section 140(1) of the Act, not by a decision of the delegate.[23]

   [23] Court book page 169 at paragraph [3]; page 174 at paragraph [36]; and page 174 at paragraph [37].

Extension of time

1. It is common ground that an application for judicial review is required to be made within 35 days from the date of the decision. This application was filed 248 days after the tribunal’s decision, well outside that time frame.

2. Section 477(1) of the Act relevantly provides that the court may extend the time for filing an application for review beyond the 35 day time limit as the Court considers appropriate, if:

   a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b) the Federal Circuit Court is satisfied that it is in the interests of the administration of justice to make the order.

3. Some of the factors relevant to the question of whether it is in the interests of the administration of justice to allow the extension of time sought include, but are not limited to:

   a)the extent of the delay;

   b)the explanation for the delay;

   c)any prejudice to the respondents;

   d)the impact on the applicant;

   e)the interests of the public at large; and

   f)the merits of the substantive application.[24] 

   [24] WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7]; see also MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; Hunter Valley Developments v Cohen [1984] FCA 176; WZAVL v Minister for Immigration and Border Protection & Anor [2016] FCA 334; Plaintiff M90/2009 v Minister for Immigration and Citizenship & Anor [2009] HCATrans 262, High Court, Crennan J Transcript of proceedings 16 October 2009 in M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520 at [21]-[24]; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; MAYLJ v Minister for Immigration and Citizenship [2012] FCA 335 at [8] and DAS v Minister for Immigration and Multicultural Affairs & Anor [2004] FCA 489 at [11].

4. In this case, the first applicant has not filed an affidavit explaining the reasons for her delay as required by rule 44.05 of the
   Federal Circuit Court Rules 2001 (Cth) (“the Rules”), however, she has provided some explanation in her written submissions filed on
   19 October 2016. In essence, she points to the assertion that she was reliant on advice from her migration agent at the time who recommended that she make an application to the Minister for a review and that she understood this to be a review of the tribunal’s decision. She also points to the fact that once advised that the Minister had not agreed to reverse the tribunal’s decision she obtained further advice and then lodged her application within 16 days. 

5. It was submitted on behalf of the Minister that the explanation for the delay in this case as set out above was unsatisfactory.

6. Counsel for the first respondent referred to various cases in which it was held that an applicant’s choice to pursue Ministerial intervention under section 417 of the Act, is not a satisfactory explanation for the delay in seeking a review of the tribunal’s decision.[25] Moreover, it was submitted on behalf of the first respondent that the first applicant’s decision to seek Ministerial intervention under section 417 of the Act, is indicative of a decision by the first applicant to abandon a course that would seek to challenge the decision of the tribunal through judicial review.[26]

   [25] Vu v Minister for Immigration [2008] FCAFC 59 at [32] per Jessup J, SZUWX v Minister for Immigration [2015] FCA 1389 at [76] per Griffiths J.

   [26] M211/2003 v Refugee Review Tribunal [2004] FCAFC 293; (2004) 212 ALR 520; DAS v Minister for Immigration and Multicultural Affairs [2004] FCA 489 at [11] per Sunberg J.

7. The first respondent also argued that a lack of knowledge or failing to obtain proper legal advice is not a satisfactory nor sufficient reason for the substantial delay. It was submitted that the onus is on the first applicant to make proper inquiries or to take reasonable steps to ascertain whether he could have taken action beyond the tribunal and as to any applicable time limits.[27]

   [27] SZOCH v Minister for Immigration & Anor [2010] FMCA 300 per Nicholls FM at [43] and SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 per Cowdroy J at [33].

8. In the course of the hearing, I asked the applicant if there was anything further that she wished to say in relation to the question of the extension of time and she responded in the following terms:

   a)she confirmed that her application and the review process was undertaken on her behalf by her migration agent and that she relied on the migration agent;

   b)also at that time she had given birth to her son, the third applicant in these proceedings, and that this also impacted, in response to a question from the court, the first applicant confirmed that she gave birth on 18 March 2016; and

   c)she was all alone in Australia with her partner and,

   …there wasn’t any family member who could help me out with all that thing was going on in my personal life and I got very, very distracted just concentrating on that moment and that time. [28]

   [28] Transcript page 4 at lines 39 to 43.

9. The first respondent also submitted that the court must also have regard to the merits of the claim in determining whether or not to grant an extension of time and that in this instance, the first applicant’s proposed substantive application lacks merit both with regard to the grounds of appeal raised in the application itself and also on the basis of the applicant’s written submission.

10. On the question of merit, in MZABP, her Honour Justice Mortimer stated that in an extension of time application, the merit of the claim is to be determined at an ‘impressionistic level’ rather than by descending into the detail of the claim and the response to that claim. Her Honour noted:

    If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level… into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).[29]

    [29] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [62].

    …

    The correct approach may be expressed by the use of language such as whether a ground is ‘arguable’, ‘reasonably arguable’, sufficiently arguable’ or has ‘reasonable prospects of success’. Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right.[30]

    [30] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63].

11. In this case, to finally determine some of the grounds of review, the court must conduct an analysis of the tribunal’s decision and reasons. This is particularly so in relation to the claim that the tribunal failed to take into account relevant considerations. On that basis, on balance, I am satisfied that at an impressionistic level, the claim being pressed by the applicant may have some merit such as to warrant the granting of an extension of time.

12. This, together with the consequences to the applicant if the tribunal’s decision is in fact infected with jurisdictional error, weighed against the delay in bringing these proceedings and the explanations for that delay.

13. This is a finely balanced case, however, taking into account all relevant considerations, I conclude that it is in the interests of the administration of justice in this instance to extend the time for filing of the applicant’s application.

Substantive issues

1. Having determined that it is appropriate to allow the applicant’s application to proceed, I now turn to consider the substantive application on its merits.

2. In the interests of efficiency, the parties argued the merits of the claim at the conclusion of their submissions in respect of the extension of time application on the basis that I would consider those submissions only if I determined that an extension of time ought to be granted.

Grounds one and two

1. The first applicant’s first two grounds of review are that:

   (1)The decision made by second respondent is not natural.

   (2)Procedural fairness.[31]

   [31] First applicant’s application filed 22 April 2016.

2. Taken together these grounds allege that there has been a denial of procedural fairness. 

3. In her written submissions, the first applicant makes the following statements:

   ...none of the important issued (sic) that the Tribunal based is decision on were put to us for us to respond to or comment upon. 

   The Tribunal was under a statutory obligation to put these issues to us under s 425(1) of the Migration Act 1958 (Cth). See Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069.

   The Tribunal failed to comply with s 425(1) of the Migration Act 1958 in other regards to.

   Under s 425(1) of the Migration Act 1958 the Tribunal must invite us to present arguments relating to the issues arising in relation to the decision under review.

   The Tribunal was required to raise this with us for us to have an opportunity to address such findings by the Tribunal which were adverse to us.

   Accordingly, the Tribunal failed to accord procedural fairness as required by s 425(1) of the Migration Act 1958.[32]

   [32] First applicant’s outline of submissions filed 19 October 2016.

4. Whilst the first applicant refers to section 425 of the Act, it is accepted that the appropriate section applicable to her application is section 360 of the Act. Section 360 of the Act relevantly provides:

   1. The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

   2. Subsection (1) does not apply if:

   a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   c) subsection 359(1) or (2) applies to the applicant.

   3. If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 

5. In this instance, the first applicant was on notice of the issues relevant to the review having had the benefit of both the NOICC in November 2014 and the delegate’s decision dated 13 January 2015. The first applicant was on notice by these documents that that her visa may be cancelled under section 116 of the Act on the basis that she was no longer an eligible higher degree student and the factors that the tribunal would take into account in considering whether to exercise its discretion to cancel the visa. 

6. Moreover, the tribunal complied with its obligations under section 360 of the Act[33] and the first applicant took up the opportunity to attend the hearing before the tribunal as well as submitting further relevant documents to the tribunal for its consideration. 

   [33] Court book page 107 to 109.

7. It is also evident on the face of the tribunal’s decision that the tribunal discussed the reasons for cancellation of the visa with the first applicant and the factors that would be taken into account in determining whether to cancel the visa.[34]

   [34] Court book page 170 at paragraph [12]; page 171 at paragraphs [18] to [19]; and page 173 at paragraph [24].

8. The first applicant relies upon the decision of Manousaridis J in

   
   Shrestha v Minister for Immigration and Anor

   [2015] FFCA 2262 (“Shrestha”). Other than simply referring to this case, the first applicant does not identify the principal arising from that case on which she relies. In Shrestha’s case, the court found that the tribunal had made an incorrect finding or assumption of fact, that this finding was legally irrational and that this amounted to a jurisdictional error. However, the first applicant does not raise any similar error in this case and therefore, the reasoning in Shrestha does not assist. 

9. The applicant also relies upon Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”) in support of the proposition that the tribunal had a statutory duty to put certain issues to the first applicant under section 425 of the Act. So much is clear from the wording in section 425 of the Act itself. As stated, the relevant provision in this case is section 360 of the Act which is in the same terms as section 425 of the Act. However, the question is whether there has been a breach of that obligation.

10. The first respondent submits that SZTQS does not assist in this case.

    
    

    I agree with this submission. In that case, which was an application in respect of a protection visa, the tribunal had found that a family member would be able to provide surety for the applicant if they were to be returned to their country of origin and this impacted on the decision as to whether the applicant would be at risk on return to his country of origin. 

11. At first instance, the Federal Circuit Court held that this was a ‘crucial plank’ of the tribunal’s reasoning and, in failing to raise this issue with the applicant and giving the applicant an opportunity to respond, the tribunal had failed to discharge its obligation under section 425 of the Act. The decision of the trial judge was upheld on appeal to the

    
    

    Federal Court.  

12. SZTQS is distinguishable from the facts in the case before this court. In this case, there is no finding of the tribunal which has been identified as relevant and in respect of which the first applicant was not put on notice and given an opportunity to respond. 

13. The first applicant was on notice that the issues in this case was:

    a)whether the ground for cancellation under section 116(1)(a) of the Act existed;

    b)if so, whether the discretion to cancel ought to be exercised. 

14. Moreover, as stated above, the first applicant was on notice of the factors that were relevant to the consideration of whether to exercise the discretion to cancel the visa, as discussed in paragraph 45 above.

15. I am satisfied that the tribunal complied with its procedural fairness obligations under Part 5, Division 5 of the Act and consequently, that grounds one and two are not made out. 

Ground three

1. Ground three states:

   I tried to explain to the Tribunal that my Migration Agent misguide me about the College but Tribunal followed the decision of Immigration Department. (sic)

2. In her oral submissions to the court, the first applicant said in response to a question from the court to explain in her own words what error she thought the tribunal had made in its decision:

   …the Tribunal, like, he didn’t give any weight to my case…I was, like, enrolled in my bachelor of business…my path was different…after that I choose to do the bachelor because of when guided me to do that…[35]

   [35] Transcript page 2 at lines 45 to 46; and page 3 at lines 1 to 4.

3. In response to a question as to who guided the first applicant, she responded:

   So when I went to the migration lawyer, the migration lawyer advised me that you first do the…course in the cookery, and then go on to do the bachelor, since my intention was to go back to India and enrol myself in doing a business. So he said it would help if go through this path. So my main intention…was to do the bachelor of business because what I wanted to do later on with that degree.[36]

   [36] Transcript page 3 at lines 9 to 18.

4. Towards the end of the proceedings, the first applicant added:

   …As well as the migration agent matter goes…when I went to visit him again the second time - … he refused to recognise me.  He said that he had never handled my case and that he did not know anything regarding my matter and that our correspondence was only via email.  And he refused to recognise me when I went to see him.  So I received the notice of intention on 14 November 2014 to which I replied back on 17 November 2014 to Jeffor Wang.[37]

   [37] Transcript page 11 at lines 29 to 35.

   …

   So all my enrolment, my admission and everything I had gone through this migration agent, the reason being that he was a community member and, … I relied completely … on him and he did assure me that … everything was included in this admission and at that time I did not have any other knowledge or information  … regarding this SVP.  Because I completely relied on him and he told me that everything is done and this is what you will need to do.[38]

   [38] Transcript page 11 at lines 43 to 47; and page 12 at lines 1 to 3.

5. It is submitted on behalf of the first respondent that the tribunal considered the first applicant’s assertion that her former migration agent had misguided her about her studies.

6. It is clear from paragraph 25 of the tribunal’s decision record[39] that it did considered the first applicant’s claim that she had been misadvised by her migration agent. However, the tribunal noted that she had not provided any supporting documentation in support of this claim. Moreover, the tribunal was not satisfied that she had been misguided in circumstances where the applicant was aware of the need to remain enrolled in an SVP provider, and on her own evidence sought a transfer letter from QUT to allow her to transfer her studies to another institution and this was rejected. The tribunal’s reasons in paragraph 25 must be read against the background set out in paragraphs 12 and 13[40] ; together with paragraphs 22 and 23.[41] The tribunal’s findings in this regard, were open to it on the evidence before it.

   [39] Court book page 173.

   [40] Court book page 170 to 171.

   [41] Court book page 172 to 173.

7. For these reasons, ground three is not made out.

Additional grounds

1. In the first applicant’s written submissions filed 19 October 2016, the first applicant additionally asserts that the tribunal failed to take into account the relevant considerations. 

2. In particular, the first applicant alleges that the tribunal failed to:

   a)properly assess her medical reports;

   b)consider the fact that the first applicant applied to cancel her studies in Queensland and transfer to Victoria, but was prevented by QUT as they were acting on financial grounds rather than humanitarian grounds; and

   c)consider that the first applicant did everything she could to enrol in an eligible course with an eligible institution.[42]

   [42] First applicant’s outline of submissions filed 19 October 2016.

3. The first applicant asserts that the tribunal acted on evidence not before it, and that the tribunal’s findings were unreasonable and/or irrational.

4. The first respondent submits that this ground must also fail on the basis that the tribunal did take into account the circumstances submitted by the first applicant. The tribunal considered the first applicant’s medical certificates and report from her psychologist,[43] but found that these did not constitute extenuating or compassionate circumstances that would outweigh the grounds for cancelling the visa.

   [43] Court book page 172 at paragraph [20].

5. The tribunal also considered the role of QUT in refusing the first applicant’s application for a letter of release to transfer to another institution.[44] However, the tribunal noted that QUT did not accept the first applicant’s reasons for transferring as suitable, and otherwise noted that the first applicant had not undertaken the full range of support service from QUT to assist with her academic and personal issues.[45]

   [44] Court book page 172 at paragraph [22].

   [45] Court book page 172 at paragraph [21].

6. Finally, the tribunal found that the first applicant’s decision to request the cancellation of her enrolment at QUT was something within her control, which led to her failing to comply with condition 8516 of her visa by not being enrolled with a SVP provider.[46]

   [46] Court book page 173 at paragraph [24].

7. A fair reading of the tribunal’s reasons discloses that the tribunal in fact did consider the matters raised by the first applicant. It had regard to the medical information provided and also had regard to the first applicant’s attempts to obtain a release letter from QUT and the steps she took to enrol in other courses.

8. Ultimately, having considered those matters, the tribunal was satisfied that there was a proper basis to cancel the applicant’s visa. 

9. This ground in effect seeks impermissible merits review and must fail.

Conclusion

1. As none of the applicant’s grounds have been made out, the substantive application must be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date: 16 November 2018