Liyanage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 372
•21 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Liyanage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 372
File number: MLG 492 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 21 December 2021 Catchwords: MIGRATION – Cancellation of a Higher Education visa – decision of the Administrative Appeals Tribunal – whether the Tribunal took into account irrelevant material or failed to take into account relevant material – whether the Tribunal failed to consider the purpose of the first applicant’s travel to and stay in Australia – whether the Tribunal failed to give proper consideration and weight to the evidence or summarily dismissed evidence – whether the Tribunal misapplied facts, law, regulations, policy and guidelines or failed to ask itself the right question – whether the Tribunal failed to afford the applicants procedural fairness – whether the Tribunal’s decision was “unreasonable” – whether the Tribunal’s decision was affected by bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116, 127, 140, 348, 476
Migration Regulations 1994 (Cth), reg 2.45
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107
Craig v State of South Australia (1995) 184 CLR 163
Drake v Minister for Immigration & Ethic Affairs (1979) 24 ALR 577
El Ess & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2004) 142 FCR 43
Haq & Ors v Minister for Immigration & Anor [2018] FCCA 1523
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Eden [2016] FCAFC 28
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 125 Date of hearing: 14 December 2021 Place: Perth Applicants: First applicant in person Counsel for the First Respondent: Mr T Creedon Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 492 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PRASAD CHAMINDA LIYANAGE
First Applicant
KRISHANTHIMALA JOSEPH
Second Applicant
DAVIAN SULAKSHANA BY HIS LITIGATION GUARDIAN PREASAD CHAMINDA LIYANGAGE
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
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
JUDGE KENDALL:
BACKGROUND
The first applicant is a citizen of Sri Lanka (Court Book (“CB”) 47). The second applicant is his wife (CB 48). The third applicant is their son (CB 48). The first and second applicants also have a daughter. She is not a party to this proceeding (CB 54 & 115).
In 2008, the first applicant was granted a student visa that allowed him to undertake a Bachelor of Accounting course. He and his wife (the second applicant) arrived in Australia in August 2008 (CB 87). The first applicant completed his course of study in 2011.
On 17 June 2014, the first applicant was granted a Higher Education (Class TU) (Subclass 573) visa (the “visa”) (CB 112). The second and third applicants were included in that visa.
On 16 April 2016, the then Department of Immigration and Border Protection (the “Department”) sent a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) to the first applicant (CB 14-19). The NOICC referenced a breach of condition 8202(2)(a) of his visa on the basis that the first applicant had “not been enrolled in a registered course of study since 21 March 2014” (CB 15).
On 22 April 2016, the fist applicant sent an email to the Department responding to the NOICC and attaching a letter from a medical practitioner (CB 21-24).
On 5 May 2016, the Department re-issued the NOICC (CB 27-31) because the original notice (issued on 16 April 2016) contained incorrect information (CB 39). No further information or response was provided by the applicants.
On 13 May 2016, the first applicant’s visa was cancelled. He was sent a notice of cancellation (CB 32-37), attaching a copy of the delegate’s decision record (CB 38-46). The delegate determined that, because the first applicant had not been enrolled in a registered course of study since 20 January 2015, he did not meet condition 8202(2)(a) of his visa (CB 39).
On 13 May 2016, the second and third applicants’ visas were automatically cancelled as a result of effect of s 140(1) of the Migration Act 1958 (Cth) (the “Act”) (CB 111).
On 19 May 2016, the applicants applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 47-49).
On 8 November 2016, the Tribunal invited the applicants to attend a hearing before it, scheduled for 19 December 2016 (CB 56-57).
On 15 December 2016, the applicants (through their registered migration agent) sent written submissions and supporting documentation to the Tribunal (CB 70-103).
The applicants attended a hearing before the Tribunal on 19 December 2016. They did so with the assistance of their registered migration agent (CB 104-106).
On 16 February 2017, the Tribunal affirmed the delegate’s decision to cancel the first applicant’s visa (CB 110-120).
On 10 March 2017, the applicants sought judicial review of the Tribunal’s decision in this Court (CB 1-7). The application was supported by an affidavit which annexed a copy of the Tribunal’s decision (CB 8-10). The application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 11 pages long and spans 76 paragraphs.
The Tribunal began by detailing the type of decision under review (at [1]) and noted that the relevant issue before it was whether the first applicant’s visa should be cancelled pursuant to s 116(1) of the Act (at [2]).
The Tribunal explained that its jurisdiction (pursuant to s 348 of the Act) extended to the decision regarding the first applicant only, noting that, as the visas for the second and third applicants were automatically cancelled under s 140(1) of the Act (and involved no decision), the Tribunal had no jurisdiction in that regard (at [3]).
The Tribunal then explained the circumstances under which the Minister may cancel a visa pursuant to s 116 of the Act (at [7]).
The Tribunal detailed an issue raised by the applicants’ representative at the Tribunal hearing regarding an alleged defect in the notification of cancellation (at [8]). The Tribunal considered s 127(1) of the Act and regulation 2.45 of the Migration Regulations 1994 (the “Regulations”) (at [9]) and found that, given the applicants had validly applied for review of the delegate’s decision, the Tribunal was satisfied that the applicants had been notified of the cancellation decision “in the prescribed way as required by s 127 of the Act” (at [10]-[11]).
The Tribunal then set out the requirements of condition 8202, which was attached to the first applicant’s visa (at [12]), and noted that the first applicant’s visa had been cancelled on the basis that he “was not enrolled in a registered course” (at [13]).
The Tribunal then considered the relevant delegate’s decision record and noted that:
(a)a visa maybe cancelled under s 116(1)(b) of the Act if the visa holder did not comply with a condition of that visa (at [14]);
(b)the first applicant was granted the visa on 17 June 2014 and the visa was due to expire on 13 May 2016. Provider Registration and International Students Management System (“PRISMS”) records indicated that the first applicant was not enrolled in a course of study from 20 January 2015 (at [15]);
(c)the first applicant had been enrolled in a Masters of Professional Accounting degree but there was no indication that he had commenced the course (at [16]);
(d)the first applicant had not been granted any other substantive visa (at [17]); and
(e)the initial NOICC was sent to the first applicant on 16 April 2016 and was re-issued on 5 May 2016 (as the original NOICC contained incorrect information) (at [18]).
The Tribunal then detailed the response to the original NOICC, as follows:
19.A response was emailed to the original NOICC on 22 April 2016; however there was no later response to the second NOICC. The response mentions that the applicant’s son had been born prematurely in 2011 and was suffering from constant respiratory problems; that his son had tonsillitis which led to a fever and hospitalising. The applicant also mentions his son has speech difficulties. The applicant then claims that his wife, who was then pregnant, had surgery in 2014; as the couple did not have any relatives the applicant spent one week doing domestic work while his wife was hospitalised. After these health and living costs, the applicant did not have any money for tuition fees.
20.The response also said that his wife is expecting a baby in May 2016 and the news of the visa cancellation has hit her hard. The applicant requests compassion for his wife and children; admits that he has not complied with this study requirements but he need a reasonable time to settle affairs in regard to the delivery of his baby.
The Tribunal explained that the Department had proceeded to cancel the first applicant’s visa on 13 May 2016, noting that the PRISMS records showed that the first applicant had not been enrolled in a registered course of study since 11 August 2014 (at [21]).
The Tribunal noted that, on the evidence before it (and as admitted to by the first applicant at the hearing and in the response to the NOICC), the first applicant was not enrolled in a registered course of study from 11 August 2014 (at [22]) and had thus not complied with condition 8202(2) of his visa (at [23]).
Having found that the first applicant had not complied with a condition of his visa, the Tribunal explained that it would need to “consider whether to exercise its discretion to cancel the visa” (at [24]).
The Tribunal noted that the Act and Regulations do not specify any required considerations when exercising this discretion but confirmed that it had had regard to government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) and the applicants’ reasons about why the visa should not be cancelled (at [25]).
The Tribunal outlined that, in the response to the NOICC, the first applicant gave an undertaking to provide evidence of a further enrolment. Despite that undertaking, however, there was no evidence of a further enrolment (at [26]).
The Tribunal noted that the applicants’ representative had provided written submissions to the Tribunal on 15 December 2016 (at [28]). The Tribunal then summarised the supporting evidence before it, as follows:
(a)the first applicant provided a personal statement outlining the reasons for his failure to enrol, including the third applicant’s health, the second applicant’s gynaecological problems and a lack of “professional advice about his enrolment and migration status”. The first applicant assumed that he would be granted a subclass 457 visa (which was not granted) and that he would not need to comply with the student visa requirements. The first applicant also claimed that he was “not working illegally” when contacted by the Department in April 2016 (at [29]);
(b)a CoE dated 1 April 2014 was provided for a Master of Accounting course at Charles Darwin University, together with emails from March and July 2014 regarding cancellation of the applicant’s enrolment due to “issues with being granted a student visa” and a request for deferral of studies for a semester due to the third applicant’s illness (at [30]);
(c)a number of medical documents regarding the third applicant’s conditions (including persistent asthma, presentation at the emergency department of a hospital in April 2014 and attendance at a speech pathology clinic from June 2015 to January 2016) had been provided. Medical certificates were also provided for the second applicant regarding an operation in February 2014 (at [31]);
(d)a doctor’s certificate was also submitted regarding a visit to a clinic on 30 May 2014 (when the second applicant was 33 weeks pregnant). That letter confirmed that the first and second applicants’ daughter was born in June 2014 (at [32]; and
(e)a psychological assessment was also submitted for the first applicant dated 7 December 2016. That assessment diagnosed the first applicant with “Adjustment Disorder with Depressed Mood” and detailed the symptoms associated with the diagnosis – noting that precipitating factors were related to the health of the second applicant and the “special needs” of the third applicant, together with expectations surrounding his studies and “financial hardships arising from medical costs and not having work rights” (at [33]).
The Tribunal also detailed the oral evidence provided at the Tribunal hearing, as follows:
34.During the scheduled hearing the applicant provided oral evidence to the reasons his visa should not remain cancelled. The applicant’s visa history was discussed, including that he completed his enrolled course for a bachelor degree in accounting when he initially arrived in Australia on 11 August 2008 and that he then applied for a temporary residency visa known as a graduate skilled visa. While the applicant was on this visa, he tried to find work as an accountant but was unable to. The applicant worked for a 7Eleven franchise near Diamond Creek and hoped his then boss would sponsor him as a holder of subclass 457 sponsored work visa. However the 457 visa was not successful and the applicant decided to apply for Masters in Accounting. The applicant reiterated the health problems his family had experienced while holding a student visa. He stated that he applied for a Masters as a Bachelor degree was not enough and he would prefer to work.
35.The applicants’ representative noted that there was a wrong date on the decision record as it recorded the cancellation date as 30 August 2016, when it was 13 May of the same year. The representative argued that the notification had been defective. He also noted that life has been difficult for the applicant as the no work rights had been granted to him while holding a bridging visa.
The Tribunal confirmed that, at the time of the decision, no further evidence had been provided and the Tribunal was satisfied that the applicants had been given a “meaningful opportunity to give evidence” in the matter (at [36]).
The Tribunal accepted that the third applicant suffered from asthma and was being treated for a speech impairment (at [37]). The Tribunal also accepted that the first and second applicants have another child (a daughter who is not a party to this proceeding) (at [38]).
The Tribunal explained that the first applicant’s written and oral evidence indicated that he was “a genuine student” who intended to complete a Master of Accounting course which would help him gain employment in Sri Lanka (claiming a Bachelor degree is not sufficient) (at [39]).
In relation to the “purpose of the visa holder’s travel to and stay in Australia”, the Tribunal found that there was considerable evidence to suggest that the first applicant’s purpose for remaining in Australia was “not to study” (at [40]). In that regard, the Tribunal determined as follows:
(a)the first applicant’s visa history indicates that he intended to remain in Australia through a sponsored work visa (which he applied for on 20 April 2016). The Tribunal noted that the timing of that visa application was “in the month before the student visa was to expire” and determined that the applicant’s “behaviour and reasons” indicate that his purpose for remaining in Australia was to work full time (at [41]);
(b)PRISMS records indicated, and the first applicant admitted, that he had not commenced any work in his enrolled course of study. The Tribunal detailed conflicting information provided to the education provider and the Department. The Tribunal referenced the first applicant’s claim that the second applicant underwent an operation which was “not routine” and that was the reason for his “non-compliance”. However, the Tribunal noted that the operation occurred some five months prior to the grant of the visa. The Tribunal determined that this undermined the first applicant’s claims that he was “overwhelmed at the time” for the reasons provided (at [42]);
(c)the first applicant had emphasised that, if he was not able to remain in Australia, he would “let down” his family in Sri Lanka. The psychological report also noted that the first applicant feared his parents would be “ashamed [of] his failures”. On the evidence, the Tribunal concluded that the first applicant’s “desire” to remain in Australia was based on his desire to be a “source of pride” for his family – rather than to study (at [43]); and
(d)the Tribunal acknowledged the first applicant’s significant “familial responsibilities” (noting that he has two young children (one of whom has special needs) and a wife with some health problems). The Tribunal considered that, given that the cost of living for a family unit would typically require the equivalent of “one full time breadwinner”, the first applicant would “feel compelled to work full time” to support his family at the expense of his studies (at [44]).
The Tribunal concluded:
45.Taken all these factors together, the Tribunal places little weight in favour of the applicant’s stated reasons for prospective study and finds that the applicant’s overall purpose for remaining in Australia is not as a full time student. Accordingly, the Tribunal places little weight on his stated desire to resume full time studies in favour of the visa not being cancelled.
The Tribunal placed significant weight on the fact that the first applicant had previously held a student visa and a graduate skilled visa and there was no evidence to suggest that he had breached any conditions relating to those previous visas (at [46]).
The Tribunal concluded that the applicant’s failure to attend any course work or progress his academic work (further breaching condition 8202) (at [47]), together with his non-enrolment period of more than fifteen months (at [48]), were “considerable factors” in favour of cancelling the visa.
In relation to the “degree of hardship which may be caused”, the Tribunal accepted that there might be some resulting financial hardship and that the first applicant’s career prospects might be limited by not completing the Master’s degree in an Australian university. However, the Tribunal noted that the first applicant had completed a Bachelor of Accounting degree, has a strong work ethic and has familial support in Sri Lanka. The Tribunal determined that there would be “little financial hardship” upon his return to Sri Lanka (at [49]).
The Tribunal detailed the psychological report provided in relation to the first applicant and noted that, whilst the first applicant had been accessing counselling, the Tribunal was not satisfied that the factors outlined in the report amounted to psychological or emotional hardship. However, given the “vulnerability” of the first applicant, the Tribunal gave the factors “considerable but not overwhelming weight towards the visa not being cancelled” (at [50]-[51]).
In relation to whether there were any “extenuating circumstances beyond the visa holder’s control that led to the grounds existing”, the Tribunal accepted that there was documentary and other evidence to support the first applicant’s claims, but noted that the issue for the Tribunal was whether those factors “amount to being extenuating or exceptional or beyond the applicant’s control” (at [53]).
The Tribunal continued:
54.Firstly, the Tribunal does not accept the circumstances amount to being exceptional as bringing up children with developmental and health issues is not uncommon; nor is post natal depression; neither is the disappointment of parents and elders. It is not uncommon or exceptional to experience excessive worry about financial and other matters exceptional circumstances, experienced either individually or together over a period of time. The applicant's general circumstances are not unique or peculiar to him and his family.
55.Secondly, the circumstances do appear to be extenuating, in that the applicant genuinely has and will continue to have significant familial responsibilities. The Tribunal assesses these extenuating circumstances, cumulatively considered, do some way in explaining the applicant's non-compliance.
56.Thirdly, many of these issues do not indicate that that applicant was unable to balance his family responsibilities with part time work and full time study as required imposed on him by the conditions on his student visa. While the Tribunal accepts there were several health and developmental matters which were no fault of the applicant, but by his own admission, the applicant made little effort to re-engage with his studies through the period of time when he was enrolled between July 2014 and January 2015 or to re-enrol from January 2015 right up to the date of cancellation. Had the applicant experienced so much stress about his studies and his migration status, it would have been reasonable to expect the applicant to seeking out a migration for advice and assistance. However the applicant admits he did not and admits he did not employ migration assistance when he was applying for a subclass 457 visa in 2014. These behaviours were not beyond the applicant's control relevant to the cancellation of his visa.
57.In taking the applicant's psychological state into account as an extenuating circumstance beyond his control, the Tribunal acknowledges he has endured distress and is vulnerable to depressive moods. However, he did not take any practical measures to address his migration status, to remain compliant with the conditions on his visa or seek out medical or psychological assistance earlier which may have assisted him in overcoming these challenges such as low motivation and feelings of shame for letting down his parents for apparently under-achieving through ongoing counselling for his mental health conditions. Instead, the applicant has presented a psychological report just prior to his hearing with the Tribunal, many months after his visa was cancelled. Accordingly and in the context of other factors, the Tribunal places little weight on the applicant's psychological conditions as being beyond his control as a grounds for the cancellations of the visa
On the basis of the above, the Tribunal concluded:
58.While the Tribunal is satisfied that the applicant’s overall circumstances, cumulatively considered, amounted to extenuating circumstances, it does not accept the circumstances were exceptional or beyond the applicant’s control in remaining complaint to condition 8202 as grounds for cancellation.
The Tribunal then discussed the delegate’s findings in relation to the first applicant’s work. The Tribunal acknowledged that the first applicant was a credible person, accepted the first applicant’s evidence in that regard and found no evidence of poor conduct (past or present) (at [59]).
The Tribunal continued:
60.However it does not accept that the applicant has not been working substantial hours for his family and relied on money sent from overseas as he claimed in his NOICC response. This is only to be expected given his familial circumstances. The Tribunal notes that the psychological report states one of the precipitating factors in experiencing distress included financial hardship arising from medical expenses and he had been working despite not being permitted to by the conditions imposed on his bridging visa. In this regard, the Tribunal finds that the applicant had embellished his circumstances towards the Department but the Tribunal places little weight in the visa remaining cancelled.
While the applicants failed to respond to the second NOICC or provide evidence of further enrolment, the Tribunal placed little weight on that failure as they had responded to the original NOICC (at [61]).
The Tribunal accepted that, if the first applicant’s visa remained cancelled, he and his family would likely have to leave Australia or be detained and noted that the first applicant might be barred from returning to Australia pursuant to s 48 of the Act. As the first applicant had provided no evidence in that regard, however, the Tribunal gave this factor “only little weight towards the visa not being cancelled” (at [64]).
The Tribunal continued:
65.There would be consequential cancellation under s.140 of the Act that would affect the second named and third named applicants. The applicant stated that health and education system back in Sri Lanka would not be as good as it is in Australia. The Tribunal accepts there is a difference of quality and accessibility between each country's health care and education as claimed by the applicant. It is accepted that there would be challenges in returning to Sri Lanka; however Sri Lanka is not without publicly-funded amenities and services for which they will be eligible and the applicant's family will have access to their extended family for material and other support. Currently the applicants are not eligible for Australia's Medicare and social security system. The Tribunal accordingly places some weight on the impact in the consequential cancellation under s.140.
66.The applicant's daughter was born on 3 May 2016 and the visa was cancelled on 13 May 2013. Based on the applicant's daughter being born prior the date of his visa's cancellation, the Tribunal is satisfied that his applicant's second child and his only daughter held a substantive visa arising from s.78 for children born in Australia whose parents are noncitizens and hold substantive visas. According it gives this factor some weight the applicant's daughter will be affected by consequential cancellations under s.140.
The Tribunal did not accept that, if the first and second applicants’ children were returned to Sri Lanka, this would breach any international obligation or protocol (at [67]). Nor was there any evidence to suggest that, if any international obligations were breached as a result of the visa cancelation, the family would be affected (at [68]).
The Tribunal then determined:
69.The applicant has sought the Tribunal to exercise its discretion in a compassionate manner so as he and his family can move forward and so he can study again. The psychological report mentions that if the applicant were to fail in obtaining another student visa, a negative prognosis is predicated. The Tribunal realises that the cancellation of the applicant’s visa occurred at a time just after the birth of his second child. This was undoubtedly a distressing development for him and his family. The Tribunal acknowledges that the cancellation may have further undermined the psychological wellbeing of the applicant whose uncertain migration status and his considerable family responsibilities. It accepts that the applicant attempted to obtain long term residency in Australia following an orthodox pathway but was unable to find a suitable sponsor for a skilled work visa and had been an otherwise compliant temporary visa holder until the applicant breached condition 8202 of this visa under review. The Tribunal accordingly has significant sympathy for all the applicants in this review as well as the applicant’s second child based on their accepted circumstances and it places some weight on the compassionate aspects in favour of revoking the cancellation in favour of the applicants.
70.However the Tribunal is unable to overcome its significant concerns that based on the same accepted circumstances the applicant does not have the capacity to uphold the conditions on his visa. Indeed the applicant and his wife are now parents to two children as opposed to one when the applicant when he granted the student visa that is under review. The applicant’s family responsibilities strongly indicate to the Tribunal that the applicant will not have the motivation or the capacity to uphold the conditions of his student visa if it not cancelled and it is a considerable factor in not reinstating his visa.
71.While the Tribunal has some persuasive psychological evidence that the applicant should have his visa not cancelled for mental health reasons, the Tribunal notes that the applicant does not suffer from suicidal ideation or any signs of hallucinations and that his symptoms are treatable. It also notes that his family will have access to the same health and education services that other Sri Lankans are entitled to while as student visa holders they will not be able to access Medicare or social security benefits. It further notes that the applicant and his family will have the material and other support of family back in Sri Lanka. It is accepted that ‘loss of face’ back in Sri Lanka is significant cultural force, but it is not one that will engender long term significant or severe psychological, developmental, mental or material hardship on the applicant or his immediate family members.
The Tribunal explained that, whilst there were some extenuating circumstances during the first applicant’s non-compliance with his visa conditions, many were expected in the normal course of study, work, family or social life and were not beyond his control (at [72]).
The Tribunal ultimately found as follows:
73.In conclusion, in combination with the applicant’s significant non-compliance of other visa conditions, the Tribunal cannot be satisfied the applicant will be a genuine student who will uphold the conditions imposed on his visa if his student visa were not cancelled. This cumulative finding is a significant factor towards the visa being cancelled that outweighs the accepted difficulties the applicant has experienced in the past and the accepted challenges he may face in returning to his country of nationality.
On the evidence before it, the Tribunal concluded that the first applicant’s visa should be cancelled (at [74]).
The Tribunal affirmed the decision to cancel the first applicant’s visa (at [75]) and found that it had no jurisdiction in relation to the second and third applicants (at [76]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed by the applicants on 10 March 2017 contains 14 “grounds of review”, as follows (without alteration):
1.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence and come to the conclusion that the applicant is not a genuine student who will uphold the conditions imposed on his visa.
2.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law;
3.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error when it did not consider the purpose of the Applicant's travel to and stay in Australia. The Applicant was in Australia primarily for Subclass 573 (Higher Education Sector) studies in Australia and later he decided to enrol in a Masters of Professional Accounting Degree in accounting as he was struggling with the course contents and family
4.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicants;
5.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicants;
6.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicants application.
7.The Administrative Appeals Tribunal did not act in a way that was fair and just;
8.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error when it found and/or held that the evidence presented by the Applicant did not satisfy the requirements of the Migration Act 1958 and the Migration Regulations 1994 (Cth). which evidence the Tribunal failed to and/or failed to adequately and/or properly consider;
9.The Administrative Appeals Tribunal erred in law by making findings that were not open on the evidence before the Administrative Appeals Tribunal;
10.The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question(s);
11.The Administrative Appeals Tribunal fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances of the case;
12.The Administrative Appeals Tribunal fell into jurisdictional error as its decision was affected by bias;
13.The Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case;
14.Such further and/or other and/or additional grounds as the Applicant may submit in due course upon receiving full and proper legal advice and opinion in the matter;
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicants on 10 March 2017, a Court Book numbering 120 pages (Exhibit 1), written submissions filed by the applicants on 18 October 2017 and written submissions filed by the Minister on 3 November 2017.
The applicants appeared before this Court without legal representation. At the hearing, the first explained that he would speak on behalf of all of the applicants. He was assisted by an interpreter in the Sinhalese and English languages. The Court confirmed with the first applicant that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the first applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272.
Against this background, the first applicant initially stated that his solicitor had “completed the application form for him” and that he had nothing further to say. Having heard from counsel for the Minister, the first applicant stressed that he was concerned that the Tribunal had not addressed his evidence about the “the difficulties he was having with his son’s illness”.
These concerns will be addressed below when considering the applicants’ grounds of review.
CONSIDERATION
Grounds 1 and 2
Grounds 1 and 2 provide as follows:
1.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence and come to the conclusion that the applicant is not a genuine student who will uphold the conditions imposed on his visa.
2.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law;
The application for review does not include any particulars that identify the information that the applicants believe the Tribunal “did not consider” (and “should have”) or the information that “was taken into account” (but “should not have been”).
It is noted, however, that the applicants’ written submissions (filed on 18 October 2017) particularise these grounds as follows (emphasis added):
4The Administrative Appeal Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it did not take into account relevant matters and/or information and/or evidence as required by law specifically failing to consider Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder's control. In the present case the health conditions of the applicant's son Davian at the time of cancellation of his visa and the wife of the applicant was diagnosed endometrial polyp in her womb in 2014 were beyond his control and the reasons for non-enrolment in a registered course
These grounds fail on a factual level. The Tribunal here did consider the health conditions of the second and third applicants throughout its reasons.
In relation to the second applicant, the Tribunal specifically referenced her health condition and confirmed that she “underwent an operation in 21 February 2014” (at [31]). The Tribunal went on to consider the first applicant’s claim that he had not complied with his visa requirements because of the health issues suffered by his wife and son, noting:
42.Secondly the applicant has admitted and the PRISMS records state that the applicant did not commence any of the enrolled course work at any stage. Although the applicant claimed that in 2014 both his son and his wife had health issues that made work difficult. There is evidence that the applicant notified the education provider about his son’s asthma and that he requested a semester so he could take his son to Sri Lanka for the warmer weather. According to the applicant at the hearing, he and his son did not go to Sri Lanka. The PRISMS also indicates that no suspension or deferment of studies was granted. The applicant also cited that his wife had an operation that was not routine for the removal of a polyp from her reproductive system as a reason for his non-compliance. However this operation according to the documents submitted by the applicants’ representative occurred in February 2014; the grant of the visa was on 17 June 2014 – some five months later. This undermined the applicant’s claims that he was overwhelmed at the time for the claimed reasons.
The Tribunal also referenced the second applicant’s health issues at [19]-[20], [29], [31], [33], [38], [44], [51] & [53].
In relation to the third applicant, the Tribunal accepted that he suffered from “asthma” and was “being treated for a speech impairment” (at [37]). The Tribunal also referenced the third applicant’s health issues at [19], [29]-[31], [33], [42], [51], [53] and [67].
The Tribunal acknowledged that both the second applicant’s medical and psychological issues, together with the third applicant’s medical, developmental and mental challenges did amount to extenuating circumstances which were beyond the first applicant’s control. Specifically, the Tribunal explained:
53.The applicant provided written and oral evidence that the combination of his psychological and financial problems, his wife’s medical and psychological issues and his son’s medical and develop, mental challenges have amounted to extenuating circumstances beyond the visa holder’s control that led to the grounds existing for the cancellation. The Tribunal generally accepts that there is documentary and other evidence to support the individual aspects to be credible. The issue before the Tribunal is whether these factors, cumulatively considered, amount to being extenuating or exceptional or beyond the applicant’s control
However, the Tribunal ultimately found the circumstances were not exceptional, stating:
58.While the Tribunal is satisfied that the applicant’s overall circumstances, cumulatively considered, amounted to extenuating circumstances, it does not accept the circumstances were exceptional or beyond the applicant’s control in remaining complaint to condition 8202 as grounds for cancellation.
While this Court might have come to a different conclusion on the evidence, that is not the test on review. Here, despite the applicants’ claims, the Tribunal did consider the issues raised in relation to the health conditions of the second and third applicants. The Tribunal was satisfied that the first applicants’ circumstances (overall) were extenuating. It did not, however, accept that the circumstances were exceptional or that they were beyond the [first] applicant’s control in maintaining compliance with the conditions of his visa. This was a finding which was open to the Tribunal on the evidence before it and no error arises in this regard.
No error arises in relation to grounds 1 or 2.
Ground 3
Ground 3 provides:
3.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error when it did not consider the purpose of the Applicant's travel to and stay in Australia. The Applicant was in Australia primarily for Subclass 573 (Higher Education Sector) studies in Australia and later he decided to enrol in a Masters of Professional Accounting Degree in accounting as he was struggling with the course contents and family
This ground also fails on a factual level. The Tribunal considered the purpose of the first applicant’s travel to and stay in Australia in some detail (at [39]-[45]).
The Tribunal reviewed the evidence before it and determined that there was “considerable evidence” to suggest that the first applicant’s “purpose to remain in Australia was not to study” (at [40]).
Specifically, the Tribunal determined that:
(a)the first applicant’s visa history indicated that he intended to remain in Australia as the holder of a “sponsored work visa” and that he had applied for that visa (which was not approved). Further, the Tribunal considered that the first applicant’s behaviour indicated that his purpose for remaining in Australia was to work full time (at [41]);
(b)discrepancies in the evidence provided by the first applicant to the Department and the Tribunal undermined the first applicant’s claims that he was “overwhelmed at the time of his non-compliance” for the reasons he claims (at [42]);
(c)the first applicant’s goal was to remain in Australia for reasons which were not related to study. Rather, the first applicant wished to maintain ongoing residency in Australia to be “a source of pride for his family back in Sri Lanka” (at [43]); and
(d)the first applicant had considerable familial responsibilities and, given how seriously he takes the wellbeing of his family, the first applicant will “feel compelled to work full time” to support his family, even at the expense of his studies (at [44]).
Upon consideration of the evidence before it, the Tribunal ultimately found as follows:
45.Taken all these factors together, the Tribunal places little weight in favour of the applicant’s stated reasons for prospective study and finds that the applicant’s overall purpose for remaining in Australia is not as a full time student. Accordingly, the Tribunal places little weight on his stated desire to resume full time studies in favour of the visa not being cancelled.
It cannot be said that the Tribunal did not consider the purpose of the first applicant’s travel to and stay in Australia. The Tribunal considered it in some detail and weighed the evidence before it. Ultimately, the Tribunal found that the first applicant’s overarching purpose for remaining in Australia was not to continue his studies.
This was a finding which was open to the Tribunal on the evidence before it and no error arises in this regard.
Grounds 4 and 5
Grounds 4 and 5 provide:
4.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicants;
5.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicants;
Unfortunately, the applicants again failed to provide any particulars or any explanation in relation to what “evidence” they are referring to.
The Tribunal is required to give ‘proper, genuine and realistic consideration’ to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
It is clear from the Tribunal’s written reasons that the Tribunal did so here.
The Tribunal forensically detailed the evidence given to it (see, for example, the Tribunal’s decision at [26]-[36]). The Tribunal then went on to consider the evidence (both oral and documentary) against the PAM3 guidelines and made findings based on that information (see, for example, the Tribunal’s decision at [37]-[71]).
There is nothing before the Court to suggest that the Tribunal did not assess all of the evidence before it.
Further, it is well accepted that the Tribunal is able to determine whether to accept or reject evidence and the weight to place on that evidence: Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“Nahi”); Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27].
Grounds 4 and 5 are, accordingly, dismissed.
Grounds 6 and 10
Grounds 6 and 10 provide:
6.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicants application.
10.The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question(s);
A visa may be cancelled in certain circumstances. Here, the Minister (and, subsequently, the Tribunal), had the power to cancel the first applicant’s visa pursuant to s 116(1)(b) of the Act as follows (emphasis added):
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa)the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
…
The applicants in this matter did not dispute the fact that the first applicant had not complied with condition 8202 of the visa. Indeed, the first applicant accepted that he had not been enrolled in a registered course and provided reasons to the Tribunal for his non-compliance with the conditions of his visa.
In relation to the factors for consideration, the Tribunal correctly identified as follows:
25.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
The PAM3 Policy is not a binding document. As explained in El Ess & Anor v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2004) 142 FCR 43:
45.… PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230; (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
The Court also notes the decision in Drake v Minister for Immigration & Ethic Affairs (1979) 24 ALR 577 at 590, where the Full Court of the Federal Court explained:
…The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament…
…It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.
The Tribunal correctly identified that s 116(1)(b) of the Act was enlivened because the first applicant had not complied with condition 8202(2)(a) of his visa. On that basis, it also identified that the issue or “question” to be decided was whether the reasons provided by the applicants amounted to being “extenuating or exceptional or beyond the [first] applicant’s control”.
The Tribunal correctly identified the law and guidelines and followed those guidelines whilst assessing the evidence provided to it. The Tribunal weighed the evidence before it and the reasons provided by the applicants and then made findings as to why the visa should remain cancelled.
There is no evidence before the Court to suggest that the Tribunal misapplied the facts, law or guidelines or asked itself the wrong question.
Grounds 6 and 10 do not identify any jurisdictional error.
Grounds 7 and 11
Grounds 7 and 11 provide:
7.The Administrative Appeals Tribunal did not act in a way that was fair and just;
11.The Administrative Appeals Tribunal fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances of the case;
The applicants here arguably raise concerns regarding whether the Tribunal adhered to its procedural fairness obligations.
In this regard, the Court notes as follows:
(a)the applicants were given an opportunity to provide information and evidence explaining why their visas should not be cancelled;
(b)the first applicant provided an explanation to both the Department (CB 21-24) and the Tribunal (CB 70-103) and that information was considered by the Tribunal;
(c)the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments: s 360 of the Act. The applicants appeared before the Tribunal with their registered migration agent (CB 104-106);
(d)for reasons that will be discussed below, there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment;
(e)the applicants were given opportunities to provide evidence in relation to the visa cancellation and the Tribunal made findings in relation to that evidence; and
(f)those findings were open to the Tribunal on the evidence before it (which was provided by the applicants and their registered migration agent).
Any allegation of “unfairness” in relation to the Tribunal’s conduct cannot be made out.
Grounds 7 and 11 are, accordingly, dismissed.
Ground 8
Ground 8 provides:
8.The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error when it found and/or held that the evidence presented by the Applicant did not satisfy the requirements of the Migration Act 1958 and the Migration Regulations 1994 (Cth). which evidence the Tribunal failed to and/or failed to adequately and/or properly consider;
For the reasons outlined above, the Court is satisfied that the Tribunal considered all of the evidence before it. The Tribunal weighed that evidence and made findings accordingly. As outlined above, it is a matter for the Tribunal as to whether to accept or reject evidence and the weight to place on that evidence: Nahi; Lee at [27].
The applicants may not agree with the Tribunal’s findings but disagreement, however strong, does not assist the applicants in relation to whether or not the Tribunal has fallen into jurisdictional error. The Court has no jurisdiction to review the factual merits of the Tribunal’s decision which, arguably, is what the applicants seek here: Wu Shan Liang at 272.
Ground 8 does not identify any jurisdictional error.
Grounds 9 and 13
Grounds 9 and 13 provide as follows:
9.The Administrative Appeals Tribunal erred in law by making findings that were not open on the evidence before the Administrative Appeals Tribunal;
13.The Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case;
The applicants here seek to challenge the Tribunal’s decision on the basis that it is “unreasonable”.
“Unreasonableness” can occur in circumstances where a decision is made that is so devoid of plausible justification that no reasonable person could have taken that course: Li at [28] per French CJ. It can also occur when a decision has been made that lacks an “evident and intelligible justification”: Li at [76].
As was explained by Bell and Crennan JJ in SZMDS, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it (at [133]).
The test for unreasonableness is “stringent” and only arises in rare cases: Haq & Ors v Minister for Immigration & Anor [2018] FCCA 1523 at [36].
In Minister for Immigration & Border Protection v Eden [2016] FCAFC 28 the Full Court of the Federal Court explained as follows:
65.… The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
As the Minister correctly submitted, the Tribunal’s reasons show an “evident and intelligible justification” for its decision to affirm the cancellation by the delegate.
The Tribunal correctly identified that s 116(1)(b) of the Act was enlivened because the first applicant had not complied with condition 8202(2)(a) of his visa. The Tribunal proceeded to weigh the evidence before it and, upon consideration of all of that evidence and the first applicant’s circumstances, determined that the visa should remain cancelled.
Upon review of the Tribunal’s decision, the Court is satisfied that there is a logical connection between the evidence and information before the Tribunal and the determinations made: SZMDS at [131]. Again, while this Court might have determined differently, that is not the test on judicial review. Here, it was open to the Tribunal on the evidence before it to determine that there were no “exceptional circumstances” of the sort that would allow it to assist the applicants.
No error arises in this regard.
Ground 12
Ground 12 provides as follows:
12.The Administrative Appeals Tribunal fell into jurisdictional error as its decision was affected by bias;
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicants to attend a hearing. The Tribunal hearing went for approximately one hour and the first applicant provided evidence at that hearing which, as discussed above, the Tribunal regarded comprehensively. The applicants’ registered migration agent also made submissions before the Tribunal which the Tribunal had regard to.
The Tribunal, in its weighing exercise, also found there were factors which weighed in favour of the first applicant’s visa not being cancelled. There is thus nothing on the face of the Tribunal’s reasons to suggest that the Tribunal approached its statutory task with a closed mind or was not open to persuasion.
The Court is satisfied that no issue of bias arises here.
Ground 14
Ground 14 provides:
14.Such further and/or other and/or additional grounds as the Applicant may submit in due course upon receiving full and proper legal advice and opinion in the matter;
Though given an opportunity to do so, the applicants did not file any amended application or raise any further or additional grounds which the Court can consider.
No error arises in relation to ground 14.
CONCLUSION
The application for judicial review filed by the applicants on 10 March 2017 has failed to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 December 2021
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