Kaur v Minister for Immigration Citizenship and Multicultural Affairs

[2023] FedCFamC2G 117

Federal Circuit and Family Court of Australia

(DIVISION 2)

Kaur v Minister for Immigration Citizenship and Multicultural Affairs [2023] FedCFamC2G 117

File number(s):

MLG 159 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

8 February 2023

Catchwords:

MIGRATION – unrepresented applicant raising un-particularised grounds of review – duty of Minister to take substantive and practical approach to applications – applicant can particularise grounds at hearing – whether information contained in delegate’s decision comes within s 359A(4) exception by reason of having been attached to Tribunal application

Legislation:

Migration Act 1958 (Cth) ss 116, 357A, 359A, 368D, 476

Cases cited:

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 103

SZELX v Minister for Immigration and Citizenship v the Minister [2007] FMCA 209

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

60

Date of hearing:

8 February 2023

Place:

Sydney

The Applicant: 

In person via Microsoft Teams

Counsel for the Respondents:  

Ms K McInnes

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 159 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RAJANDEEP KAUR
Applicant

AND:

MINISTER FOR IMMIGRATION CITIZENSHIP & MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	8 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application filed on 22 January 2018 is dismissed.

2.The applicant pay the first respondent’s costs and disbursements of, and incidental to the application fixed in the amount of $5,000.

3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), orders 1 and 2 above not be entered until the date of publication of written reasons for judgment revised from transcript, which for the avoidance of doubt and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth) will also be taken to be the date upon which the judgment was pronounced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Revised from transcript)

JUDGE GIVEN:

1. By an application to show cause filed with this Court on 22 January 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made orally on 8 January 2018 which affirmed a decision of a delegate of the first respondent (delegate) to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa (visa).

   Background

2. The background to the matter, together with the summary of the Tribunal’s decision, is derived from the written submissions of the first respondent, but does not appear to be in dispute. 

3. The applicant is a 27-year-old female Indian citizen (CB 4 to 5).  On 25 June 2014, the applicant was granted the visa (CB 49).  She arrived in Australia on 29 June 2014 to study a Bachelor of Business (Management) (CB 18 and 49).

4. On 9 November 2016, the Department of the first respondent issued the applicant with a Notice of Intention to Consider Cancellation of the visa (NOICC) (CB 6 to 11).  The NOICC stated that it appeared the applicant did not meet condition 8202(a) which required the applicant to be enrolled in a registered course (CB 8).  The NOICC stated that according to the Provider Registration and International Student Management System (PRISMS), it appeared that the applicant was not enrolled in a registered course of study between 21 September 2015 and 8 August 2016 (the relevant period).

5. The NOICC stated that the visa may be cancelled under s 116(1)(b) of the Migration Act 1958 (Cth) (Act) if the applicant has not complied with condition 8202 (the ground for cancellation) (CB 8). Section 116(1)(b) of the Act relevantly provided that the Minister may cancel a visa if he is satisfied that its holder has not complied with a condition of the visa.

6. The applicant was invited to comment on the ground for cancellation and give reasons why the visa should not be cancelled (CB 9).

7. On 22 November 2016, the applicant responded to the NOICC by providing a submission (CB 18 to 19) and attaching various documents (CB 17 to 41).  This included confirmation of enrolment (COE) certificates for the following courses:

   (a)Diploma of Business – 2 March 2015 to 22 November 2015 (CB 23);

   (b)Certificate III in Retail Baking – 8 August 2016 to 11 August 2017 (retail baking COE) (CB 22);

   (c)Certificate IV in Advanced Baking – 25 September 2017 to 20 April 2018 (CB 21); and

   (d)Bachelor of Business – 16 July 2018 to 16 June 2021 (CB 20).

8. On 28 November 2016, the delegate cancelled the visa under s 116(1)(b) of the Act (CB 42 to 55).

   The Tribunal’s decision

9. On 1 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision. The applicant attached a copy of the delegate’s decision to the review application (CB 56 to 57).

10. On 23 November 2017, the Tribunal invited the applicant to attend a hearing (CB 62 to 65).  On 30 December 2017, the applicant provided various supporting documents to the Tribunal (CB 80).  These included the COE certificates previously provided to the Department (see [7] above).

11. On 8 January 2018, the applicant appeared before the Tribunal to give evidence and present arguments (CB 87 to 89).  The Tribunal made an oral decision affirming the delegate’s decision to cancel the visa (CB 91).  On 9 February 2018, the Tribunal provided the applicant with a written statement of the reasons for decision given orally at hearing (CB 105 to 111).

12. The Tribunal observed that the NOICC had been issued on the basis that applicant was not enrolled in a relevant course between 27 September 2015 and 8 August 2016 (CB 108 at [3]). The Tribunal noted the applicant’s acceptance that she did not comply with condition 8202 and had that she not been enrolled in a registered course of study during the period detailed (CB 109 at [8]).  Accordingly, the Tribunal was satisfied that the ground for cancellation in

    
    

    s 116(1)(b) of the Act was made out (CB 109 at [8]).

13. The Tribunal then proceeded to consider whether to exercise its discretion to cancel the visa (CB 109 at [9]).  The Tribunal had regard to relevant circumstances including the matters identified in the Department’s Procedures and Advice Manual (PAM3) (CB 109 at [9]).

14. The Tribunal found there was nothing before it to indicate the applicant breached any other visa conditions.  The Tribunal said that because it expected all visa holders to comply with visa conditions, this attracted little weight (CB 109 to [12]).

15. The Tribunal accepted the cancellation would cause some degree of psychological impact on the applicant and her family, and that the applicant developed migraines when stressed. However, the Tribunal gave this consideration little weight in comparison to the seriousness and length of time of the breach (CB 109 at [13]).

16. The Tribunal noted the applicant’s evidence that the University cancelled the original course in which she was enrolled and that she had received confusing advice from a migration agent in relation to which other course to take, but found these circumstances did not prevent the applicant from being enrolled in another course (CB 109 at [14]).

17. The Tribunal accepted the applicant’s evidence that she suffers migraines, had taken medication for a lengthy period of time, is deficient in iron and had some thyroid problems. However, it found that the evidence did not suggest that she was so debilitated to the degree that she was unable to enrol in a course for nearly 12 months (CB 110 to [15]).  The Tribunal did not accept that the applicant’s migraines prevented her from study or being enrolled in a course, and therefore it also gave this factor little weight (CB 109 to [16]).

18. The Tribunal found the applicant had been courteous and responsive in her dealings with the Department and the Tribunal, which weighed somewhat in her favour (CB 110 at [17]).

19. The Tribunal found that cancellation of the visa would result in the applicant being unlawful and at risk of being detained if she remained in Australia.  However, the Tribunal noted the applicant stated she would return to India and she had a migration agent who can provide her with advice pertaining to her remaining lawful until she returned to India.  The Tribunal found the applicant would face a ban from applying for another visa for several years, but noted the applicant said she would return to India to study.  The Tribunal found that while these were serious consequences, they did not outweigh the reasons for cancelling the visa (CB 110 [18] to [19]).

20. The Tribunal noted that the applicant wanted to continue studying but found there was nothing preventing her from doing this in India and gave this aspect limited weight (CB 110 to [21]).

21. Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled and affirmed the delegate’s decision (CB 110 to 111 [22]).

    Application to this Court

22. Upon commencement of these proceedings, they were initially docketed to another Judge of this Court.  On 31 October 2018, a Registrar of the Court made orders which provided, inter alia, for the applicant to file and serve any amended application and evidence 28 days before any hearing fixture which (at that stage), was to be later advised.  The matter was subsequently transferred to the central migration docket.  On 4 September 2019, the applicant filed a Notice of Address for Service which had the effect of changing her postal address but confirming that her email address, being a particular iCloud address, remained the same.  On 22 June 2022, the applicant appeared by Microsoft Teams at a callover before another Judge of this Court (other than the Judge to whom the matter was initially docketed) and on that occasion, the matter was listed for a hearing on 4 November 2022.  Due to the judicial unavailability of her Honour, the matter was re-docketed to me and, on 21 November 2022, I listed it for hearing before me today.

23. The parties in this matter are located in Melbourne and the Court is presiding from Sydney.  As a result, the matter was heard using the Microsoft Teams platform.  Initially, there were some difficulties at the Court’s end in establishing the connection and, after changing courtrooms, the matter commenced with a slightly delayed start.  The connection thereafter was clear throughout the hearing and it appeared to me that the parties and the Court did not have any difficulty engaging with one another.  In the interests of completeness I will record the following.  Immediately prior to commencing delivery of ex tempore reasons for judgment, I informed the parties (as is my standard practice) that because the matter was being heard online, should either of the parties lose their connection, or deliberately choose to leave during delivery of reasons for judgment, the Court would not stop delivering judgment.  The parties were informed that if not all parties were present at the conclusion, a default costs order would be made in favour of the successful party, with liberty to apply should it require variation.  This practice is to ensure that the Court’s ability to conclude the proceedings is not obstructed by the departure of a party from the hearing forum, and also takes into account the possibility that any inadvertent disconnection does not result in procedural unfairness.  However, in the instant case, while in the midst of delivering the reasons for judgment the MS Teams connection failed due to (what was later discovered to be) a Court-wide outage of the MS Teams platform.  Accordingly, I adjourned briefly so that my Associate could contact the parties and reconnect using a non-network laptop.  As a result, delivery of the judgment resumed a short time later from the juncture at which it had adjourned. 

24. At hearing, the first respondent was represented by Counsel.  The applicant appeared unrepresented, but was assisted by an interpreter in the Punjabi language who was present in the courtroom throughout the hearing.  The applicant speaks English well and confirmed at the commencement of the hearing that she did not require the services of the interpreter consistently throughout the hearing, but would ask for specific matters to be interpreted should she require that assistance.  That occurred on a number of occasions and I am satisfied that the applicant has been able to understand and make submissions to the Court during this morning’s hearing.

25. The initial grant of leave to the applicant to amend her application and file evidence remained extant because it was a self-executing order and was referrable to any eventual hearing date.  Despite this, and other than her originating application and an Affidavit in support and the Notice of Address for Service to which I referred earlier, the applicant has not filed any additional documents in the proceeding. 

26. As a result, the grounds which fall for consideration are those in the originating application, and are follows:

    1. I submit that the application has been decided unfairly and my visa should not have refused and the decision was made by the tribunal member and immigration department is made contrary to natural justice.

    2. The tribunal and immigration department did not apply procedural fairness to genuine intention and personal circumstances.

    3. Tribunal did not consider my genuine reasons and did not give weightage to my evidence I have given during my hearing and to the immigration department.

    4. Immigration department also did not give me a chance to complete my baking study to gain knowledge and skills for further.

27. The first respondent filed a Court Book in accordance with the Court’s orders (which was received and marked as Exhibit “1R”) and also written submissions as ordered.

28. Each of grounds 1 and 2 make allegations that the applicant was denied procedural fairness by the first respondent’s Department and also by the Tribunal. I consider it convenient to consider those grounds together, to the extent that each ground refers to the Department of the first respondent, and that this can be interpreted as taking aim at the delegate’s decision, the grounds are misconceived. As I explained to the applicant at the commencement of the hearing, the Court does not have jurisdiction to consider a primary decision by reference to s 476(2)(a) of the Act. The applicant indicated that she understood this.

29. I informed the applicant that I would consider each of the grounds of review, including ground 4 which only refers to the “Department of Immigration”, as being directed to the Tribunal (and the Tribunal only). 

    Preliminary issue

30. The first respondent says in written submissions, that grounds 1 and 2 are not particularised, that they are meaningless and that this is a sufficient basis for the matter to be dismissed, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW).  In WZAVW, Gilmour J referred to another decision of the Federal Court (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 (WZATH) at [60]), together with the first instance decision (see WZATH v Minister for Immigration [2014] FCCA 612) from the (then) Federal Circuit Court and noted that WZATH had not been overturned on appeal.

31. In WZATH, at first instance, the Court specifically expressed the proposition that applications which are not particularised are liable to dismissal on that basis alone, citing in turn a decision of Emmett FM (as her Honour then was) in SZELX v Minister for Immigration and Citizenship v the Minister [2007] FMCA 209 (SZELX).  While in SZELX, her Honour remarked about the lack of particulars in the application, it does not appear that the matter was dismissed on that basis alone, and I do not consider that SZELX stands for the proposition that now seems to have evolved into what was propounded by WZAVW.

32. Overall, absolute submissions which urge dismissal on technical bases do not assist the Court.  As I observed recently in Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 103 (Kaur),[1] the migration jurisdiction has evolved in past the decade.  It is incumbent upon this Court to concern itself with the substance of applications rather than taking an overly strict approach to form when applicants are unrepresented, as the applicant is today.

    [1] That applicant, whose surname is also Kaur, is unrelated to the applicant in the present matter

33. The grounds in the application are not themselves incomprehensible.  The applicant is before me in Court.  She was able to speak to the grounds and was able (or more specifically given the opportunity) to give particulars in Court.  If the first respondent’s Counsel had been taken by surprise by any particulars given by the applicant in Court, and required further time to address them, then procedural fairness would have warranted that such an opportunity would be afforded.  I see no utility in this Court, at first instance, taking so technical an approach to applications that its review function is not properly undertaken. 

34. For the reasons that in Kaur (supra) at [29] to [34], such an approach serves neither the applicant nor the interests of the administration of justice.  The Minister, who has obligations as a model litigant to avoid taking technical points, should also assist the Court and the applicant by taking a substantive and practical approach to judicial review applications.  In this matter, the Minister quite properly went on to substantively address the grounds raised.  While I note that the proposition was put to formally reserve a position, the grounds will be considered in full.

35. When asked to speak to grounds 1 and two, the applicant made submissions about the background to this matter, the circumstances in which she came to Australia to study, that she had migraine problems and had changed her college.  She said she went to school for seven to eight months and then experienced those problems again, following which she changed her course to a Certificate III in Retail Baking (retail baking course), and it was at this stage that she received the NOICC.  That chronology does not correspond with the background set out above which shows that the applicant only enrolled in the retail baking course after reviewing the NOICC. 

36. In any event, the import of this ground from the applicant’s oral submissions today was that she had been asked for medical evidence, but which she provided, the Tribunal was not satisfied that the medical evidence went far enough.  I confirmed with the applicant that this was a reference (in particular) to [7] of the Tribunal’s reasons for decision.  The applicant confirmed this, and made submissions to the effect that she wasn’t prepared to have to provide evidence in relation to her medical problems. 

37. Counsel for the first respondent submitted that, in actuality, this appeared to be a disagreement with the Tribunal’s factual findings.  I agree with that observation.  To the extent that the applicant says that she was somehow taken by surprise and was not prepared to have to provide medical evidence of her migraine issue and its impact on her failure to be enrolled (which was the basis for the cancellation), Counsel for the Minister drew the Court’s attention to the delegate’s decision (CB 52 in particular bullet point three) which says as follows:

    Ms Kaur has provided that she has suffered from medical issues due to which she was unable to maintain her enrolment. I consider, from the evidence provided, that Ms Kaur has suffered from medical issues in 2016, whereas her initial non-enrolment occurred on 21 September 2015.  I also consider the medical issues to pertain to specific dates as per the medical certificates provided. Considering Ms Kaur has remained un-enrolled in a course from 12 September 2015 till 8 August 2016, consider the evidence insufficient to justify that Ms Kaur was unable to rectify her enrolment or get a deferment of studies approved from her education provider throughout the course of that period.

1. It is also relevant to have regard to the delegate’s decision at (CB 51 at bullet point 4):

   Ms Kaur claims that it was due to her medical condition that she was unable to re-enrol with the education provider in 2015 as she suffered from migraine in ‘late 2014 and early 2016’. I note however, from the evidence provided, all medical certificates provided from Ms Kaur pertain to 2016 and none are from 2015. I do not consider Ms Kaur has provided enough evidence or the right evidence to justify her claims regarding her medical condition to have contributed to her failure to enrol in 2015.

2. It is clear from each of the passages set out above, the applicant was on notice that the medical evidence she had provided as at that time was not sufficient to justify why she had been unable to rectify enrolment, or seek a deferment in relation to her studies.  The delegate specifically said that the evidence provided (including medical certificates) pertained to 2016 and that no material from 2015 had been submitted.

3. Accordingly, to the extent that the applicant says that she was not aware that she had to provide such evidence, or that there were deficiencies in the evidence which she had submitted, this fails at a factual level.  The applicant was on notice that one of the issues which may be dispositive of the review was the dearth of medical evidence.  She had an opportunity to rectify this when the matter came before the Tribunal for review.  It appears she did not do so and, based on the material before it, I find that the Tribunal’s reasons (particularly at [7]) were open to it.  Otherwise, the applicant did not have any additional particulars in relation to how it is she says that she was denied procedural fairness by the Tribunal. 

4. Relevant to this ground, is s 357A of the Act, which provides the following:

   357A Exhaustive statement of natural justice hearing rule

   (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3) In applying this Division, the Tribunal must act in a way that is fair and just.

5. The requirements of Part 5, Division 5, constitute an exhaustive statement of natural justice in relation to the matters with which that Division deals. There is nothing before me to indicate that the Tribunal did not comply with the requirements of the Act. The applicant was duly invited to a hearing of the Tribunal, which opportunity she took up and she appeared before the Tribunal on 8 January 2018 to give evidence and present arguments. It is true that at the conclusion of the hearing, the Tribunal proceeded to give its decision orally, which is a mechanism provided for by the Act (see s 368D). There is no error in proceeding in that manner, in and of itself.

6. As the first respondent submitted, the issue identified by the Tribunal was the same as considered by the delegate, such that it could not be said in a broad sense (or more specifically in relation to the medical evidence that just discussed) that the applicant was not aware of the issues dispositive of the review. 

7. In that regard also, the first respondent says that to the extent that Tribunal relied upon information emanating from the PRISMS’ records, this information was in the delegate’s decision, which was advanced by the applicant for the purposes of the review by it having been annexed or attached to the electronic review application which the applicant lodged with the Tribunal.

8. In the present case, the Tribunal specifically relied upon the PRISMS’ records “as supplied by the applicant in the delegate’s decision”. Accordingly, in the limited circumstances of this case, I am prepared to accept the first respondent’s submission that the PRISMS record information came within the s 359A(4)(b) exception of the Act. If, for example, the Tribunal had instead considered the PRISMS’ records themselves and/or taken additional information from those records (beyond what the delegate referenced) and which became the reason, or part of the reason, for affirming the decision under review, then the mere fact that the PRISMS’ records were referred to or summarised in the delegate’s decision, and that that decision was then attached to the Tribunal application, might not have been a sufficient salve a potential error.

9. It is not always the case that simply because something is referred to by the delegate’s decision, it can be taken as having been given by the applicant for the purposes of review by attaching the decision to their application.  Each case must be examined on its own facts and circumstances.

10. In the present case, I am satisfied that the Tribunal having relied on the PRISMS’ information which emanated from the delegate’s decision and relying only on that limited information, did not engage the s 359A obligation. Otherwise, I agree with the characterisation given to the applicant’s submissions by Counsel for the Minister at the hearing. It does appear that the applicant disagrees with the Tribunal’s decision which, while entirely understandable, is not a basis upon which this Court would remit the matter as it is impermissible merits review. As I explained to the applicant at the outset of today’s hearing, this Court does not have power to grant her a visa or otherwise, effect the cancellation of her visa, unless there exists a jurisdictional error. In relation to grounds 1 and 2, the applicant has not demonstrated such an error as alleged, or at all. Accordingly, grounds 1 and two are not made out.

    Ground 3

11. By ground 3, which will again be taken to refer only to the Tribunal, the applicant says that the Tribunal did not consider her genuine reasons and did not give sufficient weight to the evidence that she gave at the hearing.  When asked to discuss this ground, the applicant confirmed that the particulars to this ground are those given in respect of grounds 1 and 2, namely, that the applicant is dissatisfied with the weight given by the Tribunal to the limited medical evidence she submitted.

12. The Minister’s written submissions relating to this ground raise an issue in relation to this ground, having interpreted it potentially as going towards a misunderstanding on the part of the Tribunal in relation to documentary evidence which was before it, namely a COE.  At [5] of the reasons for decision, the Tribunal said that there was no COE for the period of November 2015 to 24 September 2017.  However, that was not correct.

13. A COE, which can be found at CB 27, clearly shows that on 8 August 2016, the applicant enrolled in a Certificate III in Retail Baking.  The delegate’s decision records this also (CB 49) observing that the applicant had enrolled in the retail baking course after having received the NOICC.  The statement by the Tribunal at [5] of its reasons is plainly incorrect.  The first respondent concedes that, as a result, the Tribunal might be thought to have overlooked the retail baking COE. 

14. The relevant period to the grounds for cancellation is set out initially in the NOICC (CB 8), and ultimately, in the decision to cancel.  The relevant date range was whether the applicant was enrolled in registered course of study between 21 September 2015 and 8 August 2016, the latter being the date of her enrolment in the retail baking COE.  Accordingly, the retail baking COE was not an aspect of the ground for cancellation.

15. At [8] of its written reasons for decision, the Tribunal recorded that the applicant “had not been enrolled in a registered course of study for the time period which we indicated before”,  and noted that “the applicant has accepted that she was not enrolled in a registered course of study during the period detailed”, before finding that the ground of cancellation (which must be read together with the NOICC itself) was made out by reference to the PRISMS’ records as detailed in the delegate’s decision.

16. Overall, I am satisfied that the time period referred to at [8] of the Tribunal’s written reasons for decision corresponds with the period referred to in [3] of its decision.  This in turn corresponds with the ground of cancellation.  The incorrect date range specified in [5] of the Tribunal’s decision appears to be an infelicitous recording of those documents which were before the Tribunal, but does not indicate to me that the Tribunal failed to consider the retail baking COE.  This is further reinforced when regard is had to the balance of the decision in which the Tribunal refers to the applicant as having not been enrolled for a period of nearly 12 months. 

17. In any event, I agree with the first respondent that the error did not materially affect the Tribunal’s finding, and that the incorrect date range in paragraph 5, had it not been made, could not realistically have resulted in a different decision.  To the extent that the applicant again has taken issue with the weight given to evidence, that is a matter which is exclusively within the jurisdiction of the Tribunal, and for that reason ground 3 is not made out.

    Ground 4

18. As I noted earlier, the final ground appears to be aimed only at the delegate’s decision but, applying a beneficial construction to the ground, I have assumed that the applicant sought to make the same complaint about the Tribunal’s decision.  When asked to speak to that ground, the applicant said that after her migraine problems, she decided to undertake the retail baking course.  The applicant said that she was quite interested in her studies and she did her assignments, but was denied the chance to finish her retail baking course.

19. As the first respondent submits, the Tribunal accepted the applicant’s evidence that she wanted to complete her studies but found that there was nothing preventing her from doing so in India.  The Tribunal placed limited weight on the applicant’s desire to complete her studies in considering whether or not to exercise its discretion to cancel the visa (CB 110 at [21]).

20. In considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled (CB 110 at [22]).  I agree with the first respondent that that this finding was open to the Tribunal based on the material before it, ground 4 is not made out.  

    Conclusion

21. I am, therefore, satisfied that there are no errors in the decision as alleged by the applicant, or at all.  Accordingly, the decision is not affected by jurisdictional error.  Absent a jurisdictional error, it is a privative clause decision, and it should be dismissed, and I will so order.

    Costs

22. Consequent upon the dismissal, the Minister seeks an order that the applicant pay costs fixed in the sum of $5,000.  Having regard to the nature of the matter, I am satisfied that costs should follow the event. 

23. I am further satisfied that the amount of $5,000 is reasonable, having regard to the nature, the duration of the matter and to the Court’s scale.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       23 February 2023