Maskey v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 59
•23 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maskey v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 59
File number(s): MLG 3892 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 January 2025 Catchwords: MIGRATION – Student (Subclass 572) visa – decision of Administrative Appeals Tribunal – where the applicant failed to maintain enrolment in a registered course for a period in excess of 12 months – where delegate determined that applicant breached condition 8202 and cancelled the visa pursuant to s 116 of the Migration Act 1958 (Cth) – where cancellation decision was affirmed on review – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 116, 359AA, 359A, 360, 360A, 379A, 476
Migration Regulations 1994 (Cth) regs 1.03, 2.05, 4.21; cll 572.611, 8202
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Randhawa v Minister forImmigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
SZVLE v Minister for Immigration and Border Protection [2017] FCA 90
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872
Webb v R (1994) 181 CLR 4
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submission/s: 2 December 2024 Date of hearing: 19 November 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms K. Petrovski Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3892 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANIL MASKEY
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 JANUARY 2025
THE COURT ORDERS THAT:
1.The applicant’s application for judicial review filed on 20 December 2018 is 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 CUTHBERTSON
INTRODUCTION
The applicant, who is a citizen of Nepal, was granted a Student (Temporary) (Class TU) (Subclass 572) visa on 30 April 2015. The period of the visa was due to expire on 15 March 2018. On 9 February 2017, a delegate of the first respondent (the Minister) cancelled the applicant’s visa on the basis he had breached a condition of it as he was not enrolled in a registered course. The applicant applied to the Administrative Appeals Tribunal for review of the delegate’s cancellation decision on 15 February 2017. Following a hearing held on 25 October 2018, the Tribunal decided to affirm the delegate’s decision. It found the applicant was not enrolled in a registered course and therefore had not complied with a visa condition. It further determined it was appropriate to exercise the discretion to cancel the visa.
The applicant filed an application on 20 December 2018 seeking judicial review of the Tribunal’s decision. The Minister opposes the application. The issues raised by the application are whether the Tribunal:
·undertook its task in a manner that afforded the applicant natural justice and was free of apprehended or actual bias; or
·failed to take into account relevant matters
For the reasons set out below, the application is dismissed.
BACKGROUND
The visa granted to the applicant was subject to condition 8202. That condition required the holder of a 572 visa to meet the requirements under subclauses (2) and (3) of the condition. Subclause (2) stated that the visa holder meets the requirements of the subclause if the visa holder is enrolled in a registered course.
On 25 January 2017, the delegate of the Minister for Immigration and Border Protection issued the applicant with the Notice of Intention to Consider Cancellation (NOICC), advising there appeared to be a ground for cancellation of his visa under s 116(1)(b) of the Migration Act 1958 (Cth). The delegate advised that based on the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 8 February 2016. The registered course of study the applicant was previously enrolled in but had not completed was an Advanced Diploma of Management. The NOICC invited the applicant to comment on the identified ground of cancellation and provide reasons why his visa should not be cancelled.
On 31 January 2017, the applicant emailed the delegate as follows:
Dear Sir
Thank you for your email, I am very shocked about the email form you and i am really in deep stressed, I was enrolled to the college which was very flexible and i was studying from home and teacher attends very rarely saying us that i can do my research and submit my assignment in a way of flexible time, and the college was very flexible where i don't have to attend all the time, i never noticed and realized that my coe got cancelled, i never ever had any email and phone calls form the college and i never took serious about it, it i was my 100% mistake, at the mean time i was in Sydney to meet my childhood friend, and i lost my eye glass, i got eye problem and i can not see at all without eyeglass, i didn't wanted to take risk my life travelling without sighting the road, and i missed my flight to Melbourne because i lost my vision to get to airport, also i was working 20 hours of job just to keep my experiences in Australia but my boss scold and kick me out, i was much stressed, i had to wait to get my new eye glass, that took me 3 weeks, on the other hand, i was in always in stressed since the earth quake has happened back to me country in 2015 that took my relatives and close friend from life, also my father had a small business to support which was demolished and the income was stopped, that was my another stressed which made me not to concentrate my study and I am still in medication because of lacks of tense, however I am slowly back to normal now and very keen to study and I am seeking nice college for enrollment and I will have a new coe in a week time, I would like to consider my deep request at this time and this is my first and last mistake and will never happen again, I know Australia is great and i want to have at least one Advance diploma degree before i go back to my country, therefore It is my humble request to consider not to cancel my visa, I would be greatly appreciated with your decision in my favor, thank you so much, have great day.
On 9 February 2017, the delegate notified the applicant by email that his visa was cancelled. The delegate was satisfied that grounds existed to cancel the visa under s 116(1)(b) of the Act because the applicant had not complied with paragraph (2)(a) of visa condition 8202. The delegate further found the grounds for cancelling the visa outweighed the reasons for not cancelling.
On 15 February 2017, the applicant applied to the Tribunal to review the delegate’s decision. On 1 October 2018, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.
The Tribunal hearing took place on 25 October 2018. The applicant provided documents during the course of the hearing, namely, a prescription for Lexapro dated 30 January 2017 and a tax invoice relating to attendance on a medical practice the same day.
On 28 November 2018, the Tribunal affirmed the delegate’s decision to cancel the applicant's visa.
THE TRIBUNAL’S DECISION
The Tribunal noted at [6] the issue was whether the applicant as the holder of the visa had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth), and if so, whether the visa should be cancelled under s 116(1) of the Act.
The Tribunal noted at [8] the applicant’s visa was subject to condition 8202. The Tribunal referred at [9] to the PRISMS information before the delegate which indicated the applicant had not been enrolled in a registered course of study since 8 February 2016. The Tribunal noted the applicant’s response to the NOICC at [11]-[12]. On the basis of that evidence, the Tribunal found the applicant was not enrolled in a registered course, and accordingly had not complied with condition 8202(2) of the Regulations: at [14].
In considering whether the visa should be cancelled, the Tribunal noted there were no matters specified in the Act or Regulations that must be considered in the exercise of the discretion to cancel. It referred at [15] to having had regard to the matters raised by the applicant and those set out in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal specifically referred to the following matters:
(a)There was no evidence before the Tribunal that the applicant’s initial intention in travelling to and residing in Australia was not for the purposes of study: at [16];
(b)The applicant had failed to maintain enrolment for 12 months as at the time of the delegate’s decision. The Tribunal believed this was significant: at [17];
(c)The applicant did not provide evidence to the Department to corroborate his claims of experiencing mental and emotional stress: at [17];
(d)There was no evidence the applicant informed the Department of these issues or sought to regularise his visa status: at [17];
(e)The applicant confirmed he did not speak to his college or the Department about these issues and he did not seek medical or psychological help or counselling. He also confirmed he did not speak with the college about deferring his studies or about his financial difficulties which he claimed arose from the 2015 earthquake in Nepal: at [18];
(f)It accepted the applicant may have experienced a period of stress and perhaps even a bout of depression around the time he was prescribed Lexapro and attended the medical practice: at [19];
(g)It did not accept the applicant’s personal challenges were such that they prevented him from contacting his college or the Department to alert them to his personal circumstances and perhaps discuss deferral of his studies until such time as his personal and financial circumstances improved: at [19];
(h)It accepted the applicant and/or his family may be subject to financial or other hardship if his visa was cancelled. It also accepted the applicant may also be liable to being detained under s 189 and removed under s 198 of the Act: at [20]
(i)It was not satisfied the applicant would be subject to indefinite detention: at [20];
(j)It noted cancellation would limit the applicant’s options to apply for a further visa in Australia due to the operation of s 48 of the Act and cl 4103 of Sch 4 to the Regulations: at [21];
(k)It noted the applicant’s evidence that he remained keen to study and would like one Advanced Diploma qualification before returning to his home country: at [22];
(l)It noted the applicant’s evidence he worked during the period he was not enrolled, sometimes in excess of 20 hours a week, which might possibly have been in breach of his ‘work rights’ visa condition. It did not, however, make an adverse finding in that regard: at [23]
(m)It noted there was no evidence the applicant has been uncooperative with the Department or Tribunal, or that another person’s visa would or may be cancelled or that Australia’s international obligations would or may be breached if his visa was cancelled: at [24].
The Tribunal then concluded, considering the circumstances as a whole, that the visa should be cancelled.
THE APPLICATION FOR REVIEW IN THIS COURT
The application for judicial review filed on 20 December 2018 contains the following grounds:
1. That my student visa was cancelled based on the breach of 8202 condition of student visa. The decision made by the case officer and AAT member is biased in nature. I have supplied ample information about the genuine reason and the situation which was beyond my control that time. No procedural fairness been provided despite evidence been given to the case officer and at hearing time in AAT
2. I do believe that the law was incorrectly applied as the AAT did not attempt to follow the s116(2) by not considering the compelling and compassionate circumstances which restricted me to fulfil condition 8202 of my student visa. The circumstances were caused by the natural disastrous needed to be considered as compelling and compassionate circumstances. However, no consideration was given to the actual facts and evidences presented at the hearing time at AAT.
3. I feel that the natural justice was denied to me by not considering any evidences and facts presented to the case officer and during the hearing time at AAT.
The applicant also filed an affidavit in support of his application on the same day. Relevantly, it states as follows:
1. I came to Australia on student visa (Subclass 572) which was cancelled on 15/02/2017 based on having a study gap for nearly one year. The case officer asked me to comment on the issue by giving a notice of intention to cancel the visa. I replied to the case officer by explaining the genuine reason for not attending my college for nearly a year but no consideration was given to my request.
2. Further I applied for the Administrative Appeal Tribunal to reconsider my case which was also affirmed on the same grounds which the case officer applied to my application
3.I am now submitting my application in the Honourable Federal Circuit Court to review the decision of AAT and the Case officer to cancel my student visa based on not satisfying condition 8202 of student visa. I have explained the reason and the situation I have gone through that period which restricted me to attend and enrol in the college. I have submitted sufficient information and evidences to the AAT and to the case officer at Department of Home Affairs but no consideration was given to my requests and the evidences provided. I have gone through hard time as my parents sent me to Australia for studying and spent a huge money on that. Later when I arrived in Australia in 2015 there was disastrous earth quake in Nepal which demolished my father his father's small business shop which was the only source of income we got. My parents struggled that time and was not able to assist me financially as they were struggling with the same so I dropped my studies. I provided the evidences to the department of home affairs and to the AAT but not consideration was made. The reason escalated the breach of condition was beyond my control and caused by the natural disaster so I again requesting the honourable Federal Circuit Court to give me justice by considering my compelling and compassionate circumstances and reinstate my student visa so that I can complete my study and start my dream career back at home.
The Minister filed written submissions on 4 November 2024.
PROCEEDINGS IN THIS COURT
The applicant appeared before me on 19 November 2024. The applicant appeared unrepresented with the assistance of an interpreter in the Nepali language.
I spent some time explaining the hearing process to the applicant, identifying the documents before me and the issues considered by the Tribunal. I also explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give him a visa.
The applicant was taken to the materials before the Court, namely the application, the Court Book filed by the Minister on 9 December 2020 (received into evidence and marked 1R), and the Minister’s submissions.
CONSIDERATION
Judicial review
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
The statutory scheme – s 116(2)(b) of the Act and cl 8202 of Sch 8 to the Regulations
As at the time of the delegate’s and Tribunal’s decisions, the general visa cancellation power pursuant to s 116 of the Act relevantly provided as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa;
…
(2) The Minister is not to cancel a visa under subsection (1)… if there exist prescribed circumstances in which a visa is not to be cancelled.
(3)If the Minister may cancel a visa under subsection (1)… the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Subsection 41(1) of the Act provided that the Regulations may provide that visas, or visas of a specified class, are subject to specified conditions. In the case of the applicant’s visa, the conditions prescribed by the regulations relevantly included those contained in cl 8202 of Sch 8 to the Regulations: see reg 2.05(1) and cl 572.611(a) of Sch 4 to the Regulations.
At the time the visa was granted, cl 8202 relevantly provided as follows:
(1) The holder … 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;
…
“Registered course” is a term defined in the reg 1.03 of the Regulations as meaning a course of education or training provided by an institution, body or person that is registered, under Div 3 of Pt 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.
There is no suggestion there were prescribed circumstances which required the Minister or the Tribunal on a review to cancel the visa pursuant to s 116(3). The decision to cancel, therefore involved the exercise of discretion.
While the holder of a Student (Subclass 572) visa is enrolled in a registered course, they are compliant with subcl 8202(2)(a). If they are not enrolled in a registered course while holding such a visa, they are not meeting the requirements of that subclause. The plain meaning of s 116(1)(b) is that a failure to comply with a condition of a visa at any time while that condition is in force provides a ground for considering cancellation.
Applicant’s submissions
The applicant submits after his visa was granted, an earthquake hit his house in Nepal and due to this, his father lost financial capacity to support his studies. Two to three months after this, his grandmother passed away and he was not able to concentrate on study or work. He stated he did not raise his grandmother’s death during the Tribunal hearing because he was “mentally unwell” at the time.
I asked the applicant for dates to clarify the timeline. He stated the earthquake in Nepal occurred in 2015 and his grandmother passed away in 2016 or 2017, although he could not recall the exact date. He enrolled in the course he intended to study in January 2015 and intended to commence the course in February 2015.
I took the applicant to his grounds of review. In relation to ground one the applicant stated he does not know how the Tribunal’s decision is biased. He said the hearing was a long time ago. I asked the applicant if he wrote the grounds of review, and he responded he had assistance with his application, and it was not written by him.
In respect of the ground which claimed the Tribunal’s proceedings were procedurally unfair, the applicant said he was not ready, had no lawyer and was in no condition to get a lawyer. He described trembling during the hearing. He confirmed he did not request an adjournment.
In relation to ground two, the applicant asserts his “mental health issues and emotional feelings at the moment” were not considered and given sufficient weight. The applicant submits he had contact with no one, was “isolated”, and not leaving his room during this period. He described being totally stressed. In relation to ground three, the applicant agreed it is similar to ground two. He stated he was taking prescribed medication that did not work for him. This evidence was also presented at the Tribunal. The applicant confirms no other documents were presented to the Tribunal.
When asked what the Tribunal did wrong in cancelling his visa, the applicant stated the Tribunal did not exercise their discretion appropriately. He thought the Tribunal would give him a chance due to his mental sickness. He did not dispute that condition 8202 was breached. In submissions provided after the hearing, the applicant stated he has found a loving partner and daughter and only wants to live together with them. He stated he was hoping to get one more chance to be with them.
Minister’s submissions
The Minister submitted that to the extent the applicant’s grounds assert his claims were “genuine” and reiterates his evidence, they rise no higher than an invitation for the Court to engage in impermissible merits review: Liang at 272.
To the extent that ground one refers to the delegate’s decision, the Minister submitted the Court has no jurisdiction to review it pursuant to ss 476(2)(a) and 476(4) of the Act. With respect to the allegation of bias in that same ground, the Minister submits there is no evidence to suggest the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the applicant’s matter: Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507; [2001] HCA 17 at [35] and [72], per Gleeson CJ and Gummow J. The Minister also submits there is nothing on the material before the Court to indicate that a fair minded and informed person might reasonably apprehend the Tribunal might not have brought an impartial mind to bear on the decision: Webb v R (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]; [2001] HCA 28 at [27]-[32]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]. No inference of bias or prejudgment can be drawn from the mere fact that the Tribunal in this matter made findings adverse to the applicant in its reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, at [44]; VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102; [2003] FCA 872 at [21].
As to the applicant’s arguments at grounds two and three that the Tribunal failed to consider his “compelling and compassionate circumstances” regarding the earthquake in Nepal and did not consider his evidence and facts, the Minister argues these fail at a factual level. There is no basis to infer the Tribunal overlooked the applicant’s evidence regarding the earthquake in Nepal as the Tribunal expressly referred to it at [11], [12] and [18] of its decision. With respect to the applicant’s other evidence, the Minister points to the Tribunal noting that the only evidence before it was the prescription for Lexapro and a receipt for a visit to a medical practice in January 2017. The applicant otherwise provided no evidence of the impact of the 2015 earthquake on his ability to continue with his studies, or adversely on his mental health so as to warrant deferral from his studies due to “compelling and compassionate circumstances”. The Minister referred to the Tribunal noting the applicant made no contact with his college or the Department to inform them of his deteriorated mental and emotional state, nor did he seek any medical or psychological help or counselling.
The Minister submits the Tribunal had no obligation to make the applicant’s case for him, or to assist in specifying or establishing his claims citing s 5AAA of the Act. I note this is an erroneous reference as s 5AAA is expressed to apply only in respect of a non-citizen who claims to be a person in respect of whom Australia has protection obligations. There is no suggestion the applicant was making any such claim in this case.
The Minister otherwise submits the Tribunal was not required to accept the applicant’s claims uncritically: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22 at 596, per Kirby J, Randhawa v Minister forImmigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451, per Beaumont J. Further, the weight afforded the claims made and the evidence given by the applicant is a matter for the Tribunal alone: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]–[7] (per Kiefel, RD Nicholson and Downes JJ); see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46] (per French, Sackville and Hely JJ). The Minister submits the findings made by the Tribunal were open to it for the reasons it gave and there is nothing to suggest the Tribunal gave unreasonable weight to the matters before it.
In respect to the allegations of denial of “natural justice” and “procedural fairness” referred to in grounds two and three, the Minister submits the Tribunal complied with the relevant obligations arising from Pt 5 Div 5 of the Act. The Tribunal invited the applicant to a hearing in compliance with ss 360 and 360A by email to the applicant’s email address within the requisite notice period: s 379A(5)(b) of the Act and reg 4.21 of the Regulations. The applicant attended the hearing and was given the opportunity to give evidence and present arguments. The applicant was also on notice of the determinative issue on the review from the delegate’s decision and the Tribunal’s questioning at hearing.
The Minister also submits there was no information the Tribunal was required to put to the applicant in accordance with s 359A of the Act. The material relied on by the Tribunal (including the PRISMS information) was contained in the delegate’s decision which the applicant provided to the Tribunal or was evidence the applicant provided in writing to the department or in writing or orally to the Tribunal. These fell within the exceptions to information in s 359A(4)(b) and (ba) of the Act. The Minister submits no breach of s 359A has occurred.
Discussion
Ground one – was the Tribunal’s decision affected by bias?
As noted, the applicant did not make any submissions in support of this allegation during the hearing of the application. It appeared he was uncomfortable with the suggestion that the Tribunal had been biassed in its approach to his review application. I understood him to be suggesting this was a matter included in his grounds by his “friend” who provided assistance and not an allegation he necessarily agreed with.
This was an appropriate concession to make. Actual bias in the form of pre-judgment is established where a decision maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Legeng at [72]. The law does not demand that a decision-maker’s mind be blank or that it be absent any predisposition or inclination for or against an argument or conclusion. The relevant question is whether the decision maker’s mind is “open to persuasion”: Lageng at [71]-[72].
Nothing has been raised by the applicant capable of establishing the Tribunal’s mind was not open to persuasion. There is no suggestion on the face of the Tribunal’s reasons to suggest it was not open to persuasion. Rather, the decision demonstrates the Tribunal actively engaged with the applicant’s arguments and evidence and considered a number of matters which weighed for and against the exercise of discretion before determining they weighed in favour of cancellation.
Similarly, the applicant has not raised any matter capable of establishing that a fair-minded and informed member of the public would entertain a reasonable apprehension that the Tribunal would not discharge their duty to determine his review application impartially. Nothing on the face of the Tribunal’s decision gives rise to such an apprehension.
This ground is without merit.
Grounds two and three – did the Tribunal consider or give sufficient weight to the applicant’s circumstances obligations?
To the extent the grounds alleged a failure to consider the applicant’s circumstances or the evidence he presented, I agree with the Minister that these allegations fail at a factual level. The Tribunal’s decision outlines the applicant’s evidence of his circumstances and explanations for failing to maintain his enrolments. As noted above, the Tribunal clearly engaged with that evidence. This is particularly apparent at paragraphs [11]-[12], [16], [18]-[19], [22]-[23].
It is well settled that the weight to be afforded the evidence and submissions made during the course of a review is a matter for the Tribunal: Tran at [5], per Nicholson J, Keifel and Downes JJ agreeing; see also Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]. “[M]ere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a basis for overturning the Tribunal’s decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 48, per Mason J. It is also well-established that an exercise of power “must occur within the bounds of rationality and reasonableness”: Plaintiff M1/2021 at [25]. Jurisdictional error may arise where a “review of a decision-maker’s reasons disclosed that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument… or misunderstood the case being made” by the applicant: Plaintiff M1/2021 at [27].
In this case, the applicant has not been able to point to any evidence or argument that was ignored, overlooked or misunderstood by the Tribunal. His argument does not rise above a complaint that his evidence and arguments were not accepted as explaining his failure to maintain his enrolment. It may be that reasonable minds may have reached a different conclusion about the applicant’s explanation, but in my view, it could not be said that the Tribunal’s findings were not open to it or irrational or unreasonable.
These arguments are without merit.
Grounds two and three – did the Tribunal afford the applicant procedural fairness and natural justice?
Again, the applicant has not identified how the Tribunal breached its procedural fairness and natural justice obligations with any particularity. In my view, there is no merit to any allegation the Tribunal failed to afford the applicant a proper review of the delegate’s decision. The Tribunal invited the applicant to the hearing which he attended. There is nothing on the face of the decision or in the applicant’s submissions to suggest the applicant was not given a meaningful opportunity to give evidence and present arguments. The applicant has referred to being unrepresented and not being ready for the hearing. There is, however, no absolute right to legal representation either pursuant to the Act or the common law: SZVLE v Minister for Immigration and Border Protection [2017] FCA 90 at [40], per Katzmann J. In circumstances where no adjournment was requested, the Tribunal could hardly be faulted for failing to defer the hearing to give the applicant an opportunity to be better prepared: see SZVLE at [39].
Further, I cannot discern any breach of the Tribunal’s obligations to put information to the applicant pursuant to ss 359AA or 359A of the Act. The matters which were before the Tribunal and upon which it relied to affirm the decision under review did not constitute information within the meaning of s 359A(4) of the Act. It was information either given to the Tribunal by the applicant for the purpose of the application (the applicant’s oral evidence and the copy of the delegate’s decision) or to the delegate in response to the NOICC.
Other matters
The applicant’s submissions in the main have been directed at addressing the merits of the Tribunal’s decision. As has been explained above, it is not the role of this Court to reconsider the material before the Tribunal and remake the decision. Given the applicant was not represented in this Court, I have considered the Tribunal’s decision alert to the possibility of legal error in an effort to make the process as fair as possible to the applicant: MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158; [2015] FCA 1392 at [100], per Mortimer J (as her Honour then was). I have not identified any jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application.
I will hear the parties as to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 January 2025
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