KHANNA v Minister for Immigration
[2011] FMCA 658
•26 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHANNA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 658 |
| MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – visa – student visa – refusal to grant visa – failure to comply substantially with condition of prior visa – operation of condition 8202 – allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misinterpreted the applicable law or misapplied the law to the facts, failed to comply with s.360 of the Migration Act 1958 (“Act”), failed to comply with s.359A of the Act, failed to make a finding on a claim that it was required to make, made a decision in the absence of probative evidence and made a decision which was unreasonable, irrational or illogical. |
| Migration Act 1958, ss.116, 359A, 359AA, 360, 474 Migration Regulations 1994, cls.572.223, 572.235 and 572.611 of sch.2, condition 8202 of sch.8 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Feng v Minister for Immigration & Citizenship [2011] FMCA 576 Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170 Chen v Minister for Immigration & Citizenship [2011] FMCA 177 SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367 |
| Applicant: | RAHUL KHANNA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 911 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 August 2011 |
| Date of Last Submission: | 17 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Dobbie & Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 911 of 2011
| RAHUL KHANNA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Student (Temporary) (Class TU) subclass 572 visa on 23 December 2009. On 4 February 2010 a delegate of the first respondent (“Minister”) refused the application on the basis that the applicant had failed to comply with a condition of his previous visa. The applicant then sought review of that decision with the second respondent (“Tribunal”) but was unsuccessful. He has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Migration Regulations 1994 (“Regulations”). Relevantly in this case, cl.572.235 provides:
If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
Pursuant to cl.572.611, subclass 572 visa holders must satisfy condition 8202 which is found in sch.8 to the Regulations. Condition 8202 relevantly provides:
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; …
An applicant for a subclass 572 visa must also satisfy cl.572.223 of the Regulations. It relevantly provides:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of this subclause if:
(a) for an applicant who is not a person designated under regulation 2.07AO:
(i) …
(ii) the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(A) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(B) any other relevant matter; …
Background facts
The applicant first travelled to Australia in July 2007 as the holder of a subclass 572 visa. He was granted a further subclass 572 visa on 29 August 2007 which was valid until 30 December 2009.
On 23 December 2009 the applicant applied for another subclass 572 visa. That application was, as indicated earlier in these reasons, refused by a delegate of the Minister on 4 February 2010 who noted in his decision that the applicant had been reported by his previous education provider as having ceased his studies on 15 May 2009. The delegate noted that there was no evidence that the applicant had been enrolled in any registered course of study since that time. In the circumstances, the delegate found that the applicant failed to satisfy cl.572.235 of the Regulations in that he had not complied substantially with a condition of his previous student visa, by implication condition 8202.
On 17 February 2010 the applicant lodged with the Tribunal an application for review of the delegate’s decision. In submissions received on 6 April 2011 the applicant submitted, amongst other things, that:
a)he had complied substantially with the conditions of his previous student visa, having successfully completed his Diploma of Business Management in June 2009;
b)soon after completing his course, he had to spend time with his father who was gravely ill. He also started to have panic attacks because of his father’s poor health and travelled to India in September 2009 to visit him;
c)because of these factors, he was unable to concentrate on his enrolment; and
d)he did not deliberately flout the condition and, if given the opportunity, was willing to pursue his studies. To this end, he had enrolled in a course which was scheduled to run from February 2010 to February 2011.
The applicant also enclosed various documents in support of his claims, including a report dated 2 March 2010 from a Dr Dean, psychologist, stating that the applicant had been suffering from adjustment disorder associated with depressed mood. Dr Dean indicated that the applicant had not been able to control his emotions and sadness arising out of his father’s ill-health and had begun to suffer from anxiety and stress. Dr Dean indicated that, as a result, the applicant had not been able to attend classes from May 2009 to October 2009.
The applicant appeared before the Tribunal on 7 April 2011 and gave the following additional evidence:
a)he found out about his father’s ill-health in January 2009. At the time his mother asked him to return to India but he wanted to finish his studies;
b)he did not return to India until September 2009 because, variously:
i)his father’s health was not as bad in January but in April he stopped going to work;
ii)he did not know that his father’s health was deteriorating because whenever he spoke to parents they told him that everything was okay; and
iii)he spoke to his sister-in-law in June who told him that he should come back to India;
c)he could not enrol himself in a course because he was depressed about his father’s illness, “his mind was not working” and he had to return to India;
d)he did not enrol and then defer his studies in May 2009 because he could not focus at the time;
e)he had not studied since June 2009 and could not enrol in the February 2010 course because, by that stage, he had no visa;
f)if he had known that he could study while holding a bridging visa he would have done so, although he did not seek any advice in this respect; and
g)he saw the psychologist for the first time in May 2009 and seven or nine times thereafter.
Tribunal’s findings and reasons
The Tribunal found that the applicant had not been truthful in his evidence about his father’s health because, in its view, his evidence had been evasive, confused and inconsistent. For instance:
a)the applicant claimed that he found out about his father’s illness in January 2009 when his mother asked him to return to India, however, he later said that his father’s health was not as bad in January 2009 and that it was only from April 2009 that his father stopped working. He then said that in June 2009 one of his relatives told him about his father’s poor health and asked him to go home. The applicant subsequently claimed, when asked by the Tribunal why he did not return to India at that point, that he had not been aware of the true state of his father’s health because his parents had been telling him that everything was alright;
b)he was unable to explain why, if he was concerned about his father’s health, he did not return to India earlier than September 2009. He initially stated that that he did not return because he wanted to finish his course. He then said that he had not been aware of the extent of his father’s ill-health because his parents had been assuring him that everything was alright, which was inconsistent with his earlier evidence that in January, April or June he had been told that his father’s health was deteriorating and that he should return to India; and
c)there appeared to be no reason for the applicant to become depressed and anxious if, as claimed, his parents did not inform him about his father’s illness. On the other hand, if the applicant was truly aware of his father’s condition, he could have travelled to India to be with him.
In relation to the Dr Dean’s report, the Tribunal noted, amongst other things, that it did not clearly explain how or on what basis, in March 2010, Dr Dean was able to make a determination concerning the applicant’s condition between May 2009 and October 2009. More significantly however, while the report referred to the applicant’s (in)ability to attend classes it did not address the issue of his ability to enrol, which was the relevant issue before the Tribunal. Overall, the Tribunal considered the psychological report unhelpful and decided to give it no weight.
In light of its findings, the Tribunal did not accept that the applicant suffered from an adjustment disorder, anxiety or depression. It did not accept that the applicant was affected by his father’s condition to such an extent that he was unable to enrol in a course. In the Tribunal’s view, nothing prevented the applicant from enrolling in a course and deferring his studies in order to spend time with his father.
The Tribunal found that condition 8202 was a mandatory condition of the applicant’s subclass 572 visa granted on 29 August 2007. It found that the applicant had completed his last course of study in June 2009 and had not been enrolled in any course since that time, at least until December 2009 when his student visa expired. The Tribunal found that in failing to be enrolled the applicant had breached condition 8202 of his visa. Having rejected the applicant’s claims that he was prevented from studying by his medical condition associated with his father’s ill-health, the Tribunal was of the view that the applicant had deliberately flouted condition 8202. The Tribunal was not satisfied that the applicant had complied substantially with the conditions of his previously held visa. Consequently, he did not meet the requirements of cl.572.235.
The Tribunal also found that the applicant did not satisfy cl.572.223(2)(a)(ii)(B) and cl.572.223(2) of the Regulations, that is, he was not a genuine applicant for entry and stay as a student. In this regard, the Tribunal noted that there was nothing before it to indicate that the applicant could not continue to be enrolled in a course while holding a bridging visa. While the applicant claimed not to have known that he could be, significantly for the Tribunal, he made no inquires about whether he could continue with his studies and instead did nothing for almost two years after the completion of his last course of study in June 2009. For these reasons, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student.
The proceeding in this Court
The applicant pleaded the following grounds in his further amended application:
1.The Tribunal misinterpreted the applicable law or misapplied the law to the facts.
2.The Tribunal failed to comply with s.360 of the Act.
3.The Tribunal failed to comply with s.359A of the Migration Act 1958.
4.The Tribunal failed to make a finding on a claim that it was required to make.
5.The Tribunal made the decision in the absence of probative evidence.
6.The Tribunal’s decision was unreasonable, irrational or illogical.
7.The Tribunal based its decision on circumstances that did not exist and or failed to make an inquiry that it was required to take.
At the hearing the seventh allegation was not pressed.
The Tribunal misinterpreted the applicable law or misapplied the law to the facts.
After referring to the Tribunal’s conclusion that the applicant had not satisfied cl.572.235, and after then quoting condition 8202, the applicant particularised this allegation as follows:
(iii)The student visa granted [to] the Applicant was granted on 29 August 2007 and was in effect until 30 December 2009.
(iv)The course for which the Applicant was granted the student visa was to be completed no later than October 2009, which was before the expiry of the student visa.
(v) As the student visa granted to the Applicant was for a period longer than the course in which the Applicant had enrolled, the Applicant could not comply with Condition 8202(2)(a), such that Condition 8202 is either:
(a)Invalid on the ground that the Applicant could not comply with it; or
(b)Is to be read down, such that it only required the Applicant to be enrolled in a registered course while he was undertaking study in Australia.
(vi)The Tribunal therefore committed jurisdictional error by requiring the Applicant to maintain enrolment in a registered course for the entire term of his student visa held at the time he applied for the student visa.
The applicant submitted that the finding of Barnes FM in Feng v Minister for Immigration & Citizenship [2011] FMCA 576, that condition 8202 required strict compliance, was plainly wrong. It was submitted that this was so because, as the visa in question was granted for a period longer than the course of study to be undertaken, a student would be in breach of the visa upon completion of a course unless, before completion, the student enrolled in a further course. It was submitted that such a construction meant that a student would be in breach of condition 8202 if they did not pay and enrol in a course even though they might not wish to study further or be able to afford further study. It was submitted that a purposive approach would see the condition interpreted as requiring that the student only be enrolled for the course for which the visa was granted and that at the conclusion of that course the Minister would be able to cancel the visa pursuant to s.116 of the Act if the student did not enrol in a further course.
However, I am not of the view that her Honour’s decision in Feng’s case is plainly wrong. Condition 8202 clearly says that in order to meet its requirements the holder of the visa in question must be enrolled in a registered course. Once the visa holder ceases to be enrolled in a registered course, he or she fails to meet the requirements of the condition: Liu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1170; Chen v Minister for Immigration & Citizenship [2011] FMCA 177. It is a binary situation; either the condition is satisfied or it is not.
The applicant alternatively submitted that condition 8202 was invalid because it was inconsistent with the purposes of the Act. It was said that the Act presupposes that, when a person is granted a visa subject to conditions, they can comply with those conditions. The applicant submitted that when a student visa is granted for a period longer than the course of study for which it is granted, the student cannot comply with condition 8202 unless they enrol in and pay for another course regardless of whether they wish to study after completing the course for which the visa is granted. Properly understood, this complaint is not truly with the condition but with the way it may operate from time to time depending on the duration of the visa in question. However, something more than the act of the Minister’s department granting a visa of greater duration than necessary would be required to be able to conclude that condition 8202 is inconsistent with the purposes of the Act, and thus invalid, as alleged by the applicant. The fact that the Minister’s department may grant visas for periods longer than applicants’ courses of study does not invalidate condition 8202.
The Tribunal failed to comply with s.360 of the Act
The second ground of the further amended application was particularised as follows:
The Tribunal failed to inform the Applicant that it did not consider that he was a genuine student for the purposes of subclause 572.223(2) and subclause 572.223(2)(a)(ii)(B), and failed to allow the Applicant to give argument and present evidence in relation to whether he was a genuine student.
Section 360 of the Act relevantly provides:
360 Tribunal must invite applicant to appear
(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.
The applicant submitted that the genuineness of his status as a student was not presented to him as a live issue although the Tribunal had an obligation to ensure that he was aware that the question whether he was a genuine student was relevant to the visa application and also that the Tribunal was considering whether he satisfied cl.572.223. The essence of the applicant’s argument is that the Tribunal did not put him specifically on notice that cl.572.223(2) and cl.572.223(2)(a)(ii)(B) might be relevant to the determination of his application in circumstances where no reference to them had been made in the delegate’s decision to refuse him a visa.
When failure to comply with one of the Act’s procedural obligations is alleged, the practical consequences of the alleged non-compliance must be examined and evaluated: SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129. Consequently, the applicant must demonstrate that a failure to observe the Act’s procedural requirements had practical consequences for him in the sense of being denied an effective or adequate opportunity to address an issue determinative of the review. In this regard, the transcript of the Tribunal hearing discloses the following exchange:
Q:Sir, I have some, I have some concerns about whether you’re a genuine student, given that you haven’t studied for almost two years.
A: Yeah.
Q:And before that you … for several months. It seems to me that you are not a genuine student, sir. …
A: (No audible reply)
Q: Do you want to say anything about that?
A: … I want to continue my study. I have to complete my study.
Q: But you could have continued your studies if you wanted to.
A: …
Q: …
A: I don’t know. I don’t know.
Q:Well, you didn’t ask, that’s what concerns me. All you had to do is contact any immigration agent, contact any immigration agent, contact any Department of Immigration, they would have told you that you are allowed to study on the bridging visa. There’s nothing preventing you from studying in the last two years.
A:Seriously I don’t know. If I know, I, I, I, I have continued my study. I have no problem … the study.
Q: If you wanted to study –
A: Yeah, I wanted to study.
Q: If you wanted to study you could have made those inquiries.
A: I want to continue my study … I want to complete my study.
Plainly, the applicant was put on notice of the relevant issue, namely, that the Tribunal was concerned that he might not have been a genuine student. The fact that the Tribunal did not cite the particular clause of the Regulations which was the background to the issue is not significant if the issue itself, namely the genuineness of the applicant’s claim to be a student or to wish to be a student, is identified to him as the transcript of the hearing clearly shows it was. This allegation of error on the Tribunal’s part is not made out.
The Tribunal failed to comply with s.359A of the Act
Section 359A of the Act relevantly provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The applicant particularised his allegation that the Tribunal failed to comply with s.359A in the following terms:
a)In considering whether the Applicant was a genuine student, the Tribunal relied on information, not given to it by the Applicant or in relation to the student visa application, being that he held a bridging visa A that permitted him to study.
b)In considering whether the Applicant did not comply with conditions attached to his last held student visa, the Tribunal relied on information (if any), not given to it by the Applicant or in relation to the student visa application, that there was nothing to prevent the Applicant from enrolling in a course and deferring his studies to see his father.
c)The adverse information set out at subparagraphs a) and b) above was not given to the Applicant in accordance with s.359A or s.359AA of the Act.
The information which the Tribunal was said to have relied on to conclude that the applicant was not a genuine student was the fact that as the holder of a bridging visa A he could still have continued his studies. In this regard, reference was made to the following statement made by the Tribunal at its hearing:
Q:Sir, there was absolutely nothing preventing you from studying on your bridging visa, you are allowed to study on your bridging visa. It seems to me that if you wanted to study you could have studied on your bridging visa but you haven’t studied for almost two years.
A: … I don’t know that time.
The applicant submitted that at its hearing the Tribunal was of the view that his bridging visa permitted him to continue his studies but that such information had not come from him and, although the delegate’s decision had said that he held a bridging visa A, it did not say that it permitted him to study. He submitted that as the Tribunal’s finding that there was nothing before it to indicate that the applicant could not continue to be enrolled as the holder of a bridging visa was based on information which it had not notified to him pursuant to s.359A or s.359AA, it committed jurisdictional error.
However, contrary to the applicant’s allegation, the Tribunal’s conclusion that he was not a genuine student did not turn on whether or not his bridging visa permitted him to study. It is plain from the Tribunal’s discussion of the relevant facts at para.42 of its decision that it was unimpressed by the applicant’s failure to do anything at all in relation to his studies for almost two years after he had ceased studying in May 2009, such as by making inquiries about whether he could pursue further study. The bridging visa A was no more than a factual matter referred to by the Tribunal to highlight the fact that the applicant had done nothing to advance his studies after May 2009. But in any event, the relevant statement by the Tribunal was:
There is nothing before the Tribunal to indicate that the applicant could not continue to be enrolled as a holder of a Bridging visa. (para.42)
This is not information in the relevant sense but a gap, defect or lack of detail in the evidence before the Tribunal as discussed in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 616 [18]. Consequently, no duty under s.359A arose in relation to it.
More generally as to the significance of the bridging visa as an issue on which the Tribunal’s decision was based, the conclusion in question was an alternative basis for the Tribunal’s finding that the applicant had failed to comply substantially with the terms of his previous substantive visa. Consequently, as long as the other bases for the Tribunal’s decision were without error, the fact that this aspect of the decision might be erroneous would be of no moment: VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965.
The second element of the allegation was that the Tribunal relied on information that there was nothing to prevent the applicant from enrolling in a course and deferring his studies to see his father. Again he submitted that if the Tribunal had information that the applicant could enrol and defer his course then that should have been put to him pursuant to s.359A or s.359AA. Properly understood, this observation by the Tribunal was a reflection of the fact that the applicant had not advanced evidence to show why he was prevented from enrolling in a course and then deferring his study in order to see his father. The Tribunal had asked the applicant more than once what prevented him from enrolling in a further course and whether he had considered enrolling and deferring: Tribunal hearing transcript, questions 58, 60, 62, 126, 127, 128, 129 and 131. It was the applicant’s unsatisfactory answers to those questions, in the sense of providing no adequate answer to the Tribunal’s query, which led the Tribunal to conclude that nothing prevented the applicant from enrolling and deferring. As already observed, the absence of information is not something which attracts obligations under s.359A.
However, should I be wrong in that conclusion and the Tribunal assumed, presumably as a notorious fact, that tertiary students can enrol and defer courses, such information falls within the exception to the operation of s.359A(1) found in s.359A(4)(a) which provides:
359A Information and invitation given in writing by Tribunal
…
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or…
The Tribunal failed to make a finding on a claim that it was required to make
The applicant particularised the allegation that the Tribunal failed to make a necessary finding as follows:
(i)The Tribunal committed jurisdictional error by failing to make a finding on whether the Applicant started to see Dr Salu Dean, a psychologist, in May 2009 and several times thereafter, as claimed by the applicant.
a)The Tribunal was required to make a finding in relation to the claimed visits, as a positive finding in relation to the claimed visits was relevant to whether the Applicant substantially complied with the conditions of his previously held student visa for the purposes of clause 572.235 of the regulations.
The applicant submitted that his attendances on Dr Dean were relevant to whether he was actually affected by the health of his father which, in turn, was relevant to whether he had substantially complied with condition 8202. He submitted that the Tribunal made no finding on this issue, simply rejecting Dr Dean’s report as unhelpful because it did not address the issue of his ability to enrol in a course, dealing instead with his inability to attend a course; did not explain on what basis Dr Dean was able to make a determination in March 2010 regarding his condition between May and October 2009; and did not clearly explain what was involved in the “mental state examination” which formed the basis of Dr Dean’s assessment. The applicant submitted that a fair reading of the Tribunal’s reasons showed that it did not make a finding on his claim that Dr Dean had attended on him from as early as May 2009, despite that claim’s importance to the question whether he had substantially complied with condition 8202 of his last-held student visa.
In para.36 of its decision the Tribunal refers to the applicant’s claim that he saw Dr Dean in May 2009 and several times subsequently but observed that such attendances were not apparent from Dr Dean’s report dated 2 March 2010. In this regard, the Tribunal further observed that Dr Dean had not explained in his report “how he was able to diagnose the applicant’s condition several months before the report was prepared”. It is implicit in this comment that the Tribunal did not accept that the applicant had seen Dr Dean in May 2009 and on several subsequent occasions. But in any event, the issue of when the applicant first saw Dr Dean was not a matter of such significance that a separate finding on it was necessary. The relevant issue was whether the applicant had been psychologically disabled from pursuing his studies, as he alleged, and thus whether he had complied substantially with condition 8202, not whether individual aspects of his evidence advanced in support of that claim were accepted or, indeed, relevant to that issue.
The Tribunal made the decision in the absence of probative evidence
The applicant particularised the fifth ground of the further amended application as follows:
In the alternative to ground 3(i)(b) above, the Tribunal found that there was nothing to prevent the Applicant from enrolling in a course and deferring his studies to see his father, when there was no evidence that the Applicant could enrol in a course and then obtain a deferral in that course.
The applicant submitted that there was no evidence before the Tribunal probative of whether he could enrol in a course and then defer his studies. He submitted that either the Tribunal had made up this finding or had reached it by relying on evidence which he had failed to notify to him.
The Tribunal said that:
Nothing prevented the applicant from enrolling in a course and deferring his studies to be able to spend time with his father.
As noted earlier in these reasons, that observation did not come out of the blue. During the course of its hearing, the Tribunal asked the applicant whether he had considered enrolling and deferring. The answers which the applicant supplied plainly failed to satisfy the Tribunal and led to the conclusion expressed in the above quotation. It is a statement referring to the absence of evidence, not to the existence of evidence with the result that the fifth ground of the further amended application is not made out.
The Tribunal’s decision was unreasonable, irrational or illogical
The allegation that the Tribunal’s decision was unreasonable, irrational or illogical was particularised by reference to three matters, namely:
(i)The Tribunal’s requirement that the Applicant to [sic] enrol in a course of study and to then defer that study was unreasonable, irrational or illogical; or
(ii)The Tribunal’s decision to give no weight to the report from Dr Salu Dean, dated 2 March 2010, on the basis that it related to the Applicant’s ability to attend the course as opposed to enrolling in the course, was unreasonable, irrational or illogical; and or
(iii)The Tribunal concluded that the Applicant’s evidence in relation to his father’s health and his knowledge about it was confused and inconsistent, such that it found he was being untruthful, when the Applicant’s evidence was not confused or inconsistent.
In relation to the first particular, the applicant submitted that the Tribunal’s “requirement” that he enrol in a course only then to defer it was unreasonable, irrational or illogical because it effectively created a fraud on the visa system. He submitted that the Tribunal’s willingness to accept the possibility of enrolment and deferral and the consequent undermining of the visa system was not a decision at which a rational or logical decision-maker would arrive on the same evidence. Notwithstanding the applicant’s arguments, the possibility that the applicant might have enrolled and then deferred in order to maintain compliance with condition 8202 of his visa was not a finding in the requisite sense. The Tribunal did not find that the applicant should have enrolled and deferred, it merely observed that this was an option available to him which he failed to use. Moreover, it was no more than one of several considerations which the Tribunal took into account when determining whether the applicant had complied substantially with the conditions of his earlier visa. It was only a step toward the intermediate conclusion that the applicant had deliberately flouted condition 8202, a finding for which the other evidence before the Tribunal in any event provided an adequate foundation.
The applicant submitted in respect of the second particular of the allegation that the Tribunal’s decision to give no weight to Dr Dean’s report because it dealt with the applicant’s ability to attend a course rather than with his ability to enrol in a course was unreasonable, irrational or illogical. That decision was said to be defective in this way on the basis that if a person’s mental condition prevents them from studying, it is a reasonable inference that they would not enrol in a course. The burden of the submission was that by dealing with the applicant’s capacity to study, Dr Dean’s report was, implicitly, directly relevant to the question of the applicant’s enrolment and should have been considered in that light. However, as noted above at [36], the Tribunal had a number of reasons for according no weight to Dr Dean’s report and the report’s failure to address the issue of the applicant’s ability to enrol in a course was only one of them. For that reason alone, the Tribunal’s decision to accord Dr Dean’s report no weight was not unreasonable, irrational or illogical. Moreover, it was not unreasonable, irrational or illogical for the Tribunal to draw a distinction between study and enrolment given that the latter is merely a comparatively simple administrative step whereas the former involves considerably more mental application and effort. It was reasonable for the Tribunal to conclude, as it implicitly did, that a person might be disabled from the work of academic study but yet be capable of completing an enrolment the latter being, after all, the relevant consideration.
As to the third particular, the applicant submitted that a fair reading of the transcript of the Tribunal hearing demonstrates that his evidence was not inconsistent or confused as the Tribunal concluded.
In the applicant’s agents’ written submissions in support of his application to the Tribunal it was said that his father fell ill and was bedridden from February 2009. Supporting that submission were several attached pathology results concerning the applicant’s father, a number of which dated from January 2009. At the Tribunal hearing the applicant did not disagree with the proposition which the Tribunal put to him, that he knew in January 2009 that his father’s health was very poor. However, he went on to say that his mother had told him that everything was alright and that he was not to worry. He explained that in January 2009 his father’s ill-health was only just starting and that it was still alright at that time and was not a very bad condition; it was not until the end of April that he could not go to work. He appeared to say in his evidence that when he rang his parents in April 2009, intending to say that he was returning to India, his father said that he was alright and that the applicant should do his study and not worry about him. The applicant then said that in a telephone conversation in May his father told him that he should return and the applicant said that he would return “soon”. The applicant then said to the Tribunal that when he spoke to his father in May the latter had said “[n]o worries, everything O.K.” but then in June “they call me” and his father told him to come home as soon as possible. When queried by the Tribunal why he did not travel until September, the applicant said that he had been told “[n]o worry, no worry” and when it was put to him that in June he had been asked to return as soon as possible he replied:
I don’t know. That’s why I’m angry with my parents, then when I go, went to –
Later in his evidence the applicant appeared to indicate that his father had gone to work in May or June 2009 and when it was put to him that he had said earlier that his father had stopped working in April, he replied:
He, maybe April, maybe May, but sometime … sometime he took … three days, sometimes fifteen days … rested at home, because my father is a diabetes.
Additionally, when he was subsequently asked once more why he had travelled in September rather than in June, when he said he had been very worried about his parents, he explained that at that time his mind was “not working properly”.
This summary indicates that it was open to the Tribunal to conclude that the applicant was evasive, confused and untruthful. While a differently constituted Tribunal might have found otherwise, that is not the test.
Dealing more generally with the sixth allegation of the further amended application, a Tribunal’s decision will not be set aside for illogicality, irrationality or unreasonableness if it was open to the Tribunal to engage in the process of reasoning in which it did engage and if it was open to it on the material before it to make the findings which it did make:
While 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. (Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367 at 397 [135] per Crennan and Bell JJ)
Their Honours’ statement concerning illogicality and irrationality is to be understood in the context of what they had said earlier in SZMDS:
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. (at 396 [130])
In this case, the Tribunal’s decision was open to it on the evidence before it. The fact that a differently constituted Tribunal might have reached a different decision does not mean that the decision under review was relevantly unreasonable, illogical or irrational. Consequently, although reasonable minds might arrive at views different from those of the Tribunal, for the reasons explained by their Honours in SZMDS, that does not support a conclusion that the Tribunal’s findings were unreasonable, irrational or illogical.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 26 August 2011