Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 857
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 857
File number(s): SYG 1435 of 2023 Judgment of: JUDGE LAING Date of judgment: 22 September 2023 Catchwords: MIGRATION – review of a decision cancelling the applicant’s student visa – whether the decision was affected by legal unreasonableness – where the Delegate did not refer to centrally relevant evidence in their decision – where the Delegate’s decision nonetheless purported to summarise and make findings regarding the matters towards which the evidence was directed without referencing or engaging with the evidence – materiality – application succeeds Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Migration Act 1958 (Cth) ss 116, 121, 127
Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ARK16 v Minister for Immigration and Border Protection [2018] FCA 825
CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 734
DFF17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 149
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Border Protection v Srouji [2014] FCA 50
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 839
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 21 September 2023 Place: Sydney Counsel for the Applicant: Mr P Cutler Solicitor for the Applicant: Sultan Legal Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 1435 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKARRAM UDDIN MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The decision of a delegate of the first respondent to cancel the applicant’s Student (Class TU) (Subclass 500) visa made on 9 September 2023 be quashed.
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 LAING:
Before the Court is an application for judicial review of a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Student (Class TU) (Subclass 500) visa (student visa).
This matter came before Judge Manousaridis as duty judge on 10 September 2023. On that occasion, an interlocutory injunction was granted restraining the removal of the applicant from Australia until midnight on 13 September 2023. On 13 September 2023, I extended the injunction until determination of the matter and listed the matter for hearing, for that purpose, on 21 September 2023: Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 839 (Interlocutory Judgment).
For the following reasons, I accept the applicant’s contention that the Delegate’s decision was affected by jurisdictional error. The application before this Court therefore succeeds.
BACKGROUND
The general background to this matter and a summary of the Delegate’s decision is set out in the Interlocutory Judgment. For completeness, and ease of reference, that summary is repeated to some extent here.
The applicant arrived in Australia on the evening of 8 September 2023, on a student visa which was granted on 13 December 2022. The student visa had been granted in relation to a package course for a Diploma of Project Management and an Advanced Diploma of Business.
At the airport, after an initial interview had occurred, the applicant was provided with a Notice of Intention to Consider Cancelling a Visa (NOICC) at 1.30 am on 9 September 2023. A further interview was scheduled to occur 15 minutes after this time. Approximately an hour later, at 2.46 am, the Delegate decided to cancel the applicant’s visa under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) (Act). That provision provided:
Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student…
DELEGATE’S DECISION
The Delegate was satisfied that the applicant was not a genuine student and therefore found that a ground for cancellation existed under s 116(fa)(i) of the Act. The reasons given for this under the relevant [7] of the Delegate’s decision were limited, and were as follows:
The visa holder stated that since February 2022 after his father passed away, he has been disturbed as he was really close with him.
I acknowledged the visa holder’s response.
Whilst the visa holder may have been affected by his father’s passing, there was no evidence that he approached his education provider to inform them of his compassionate situation. Furthermore, this may have prevented the cancellation of his Advanced Diploma of Business COE: D11DDC59.
After considering the evidence and the visa holder’s response to the NOICC, I am satisfied that the visa holder is not a genuine student.
Therefore, I am satisfied that a ground does exist to cancel the visa holder’s visa under s116(l)(fa)(i) of the Migration Act 1958.
Some context is provided by Annexure A to the NOICC, which stated:
You arrived in Australia on 08/09/2023 on a TU500 Student visa which was granted on 13/12/2022. This visa was granted for a package course for a Diploma of Project Management (Confirmation of Enrollment (COE): D11DAA55 and Advanced Diploma of Business COE: D11DDC59 with a ceasing date of 09/02/2025.
When questioned during interview, you stated the following:
- You departed Australia on 19/04/2023 as you were unwell and you were not able to provide evidence of this.
- You notified your college that you were unwell but you are unable to provide evidence of this.
- You have returned to continue your studies.
- You have completed your Diploma of Project Management course online via the college portal but later stated that you ceased your studies in March 2023 and have not submitted any assessments since approximately February/March 2022.
- You currently have outstanding fees for your studies of approximately AUD$4,500.
On 10/08/2023, the department received confirmation from Berkeley Education Pty Ltd Trading as Global Training Academy (Bankstown) that your COE - D11DDC59 with a start date 14/08/2023 has been cancelled due to unsuccessful completion of your Diploma of Project Management course with the college and therefore you cannot commence the Advanced Diploma of Business.
See Attachment – B.
On 08/09/2023 at 10:26:21PM, a new Advanced Diploma of Business COE - EB1DD896 at Berkeley Education Pty Ltd, Trading Name - Global Training Academy was generated without your knowledge. See Attachment – C
You were informed of this new COE created on 08/09/2023, which you were not aware of and you acknowledged that you are not eligible to commence this course without the successful completion of the Diploma of Project Management course - COE: D11DAA55.
Based on the above information, it appears that you are not a genuine student, and as such grounds appears to exist to consider cancelling your visa under s116(1)(fa)(i) of the Migration Act 1958 which states:
(fa) in the case of a student visa:
(i) its holder is not, or is likely to be [sic], a genuine student.
The Delegate observed that the applicant’s Advanced Diploma of Business (COE: D11DDC59) had been cancelled by his education provider (Education Provider) due to unsuccessful completion of his prerequisite Diploma of Project Management course (COE: D11DAA55). This was given significant weight in favour of cancellation. The Delegate observed that the applicant admitted during an interview that he ceased his studies in March 2023 and had not submitted any assignments since February or March 2022. This also was given weight towards cancellation.
The Delegate acknowledged the applicant’s explanation that he had been disturbed by his father’s passing since February 2022. However, the Delegate considered that “there was no evidence that he approached his education provider to inform them of his compassionate situation”, which may have prevented cancellation of his Advanced Diploma of Business (COE: D11DDC59).
The Delegate accepted that the applicant may have been disturbed after his father’s passing, since February 2022, and that this may have interrupted his studies. However, the Delegate considered that the applicant “had the opportunity to approach his education provider to inform of his compassionate reason for not studying”. This was given some weight towards cancellation.
The Delegate accepted that the applicant had been cooperative during the interview. The Delegate accepted that the cancellation may give rise to some hardship(s) and that the legal consequences may include being detained in immigration detention and being removed from Australia, as well as being unable to apply for or be granted some visas. These matters were given some weight against cancellation.
However, having regard to these matters overall, the Delegate decided to cancel the applicant’s visa.
GROUNDS OF APPLICATION
The applicant relies upon an application filed on 10 September 2023 containing the following grounds:
Ground 1: Denial of procedural fairness
9.It was unreasonable that he was given fifteen 15 minutes to respond to the NOICC. The Applicant boarded Malaysian flight from Hyderabad on 08 September 2023 at 12:30 am Indian standard time and landed in Australia on 8 September 2022 at 8:30 pm Australian standard time. After almost 15 hours of travel time the Applicant was detained by the immigration officer at or about 9:00 pm and had been investigated throughout this time. In circumstances where he was exhausted and had no access to a lawyer or legal advice, no opportunity to contact anyone, no phone and no understanding of the legal requirements that he was facing, 15 minutes had been too short a time.
Ground 2: Cancellation unreasonable
10.The decision to cancel the visa was unreasonable because there was no rationally probative evidence that:
a. The Applicant was not a genuine student.
In circumstances where the Applicant firstly provided compelling medical reasons for his extended stay in India, secondly. acknowledgement that he had informed the college about his absence and thirdly when a concurrent COE dated 08 September 2023 was showing up on the Prism record. There was no substantial evidence to conclude that the Applicant was not a genuine student and for her to exercise the powers conferred under section s116 (1) (fa)(i).
11.The decision-makers must base their decisions on rationally probative evidence and not on guesswork or conjecture. The fact that an updated COE dated 8 September 2023 was available on the prism record. There was no evidence to conclude that the applicant was not studying and was not a genuine student.
Ground 3: illogical/ irrational / unreasonable approach to one or more of the section 116 preconditions: (3) the exercise of discretion
12.The Delegate of the Minister did not consider relevant information when assessing whether there are exceptional reasons in applicant’s case. The fact that the applicant was not well and was getting medical treatment in India. Henceforth establishing the fact that circumstances in which the ground for cancellation arose were beyond the applicant’s control. No reasonable person could have reached the conclusion Ms Jenny reached on the evidence that had been before her.
At hearing, the applicant abandoned ground 1 of his application to the extent that it contended a lack of procedural fairness. He maintained grounds 2 and 3 but clarified that he was relying upon the following arguments under those grounds:
(a)firstly, that the Delegate unreasonably failed to delay their decision to make inquiries of the applicant’s Education Provider and/or to allow him time to consult his brother and provide further evidence; and
(b)secondly, that the Delegate failed to consider the evidence before them regarding the applicant’s health issues, his evidence that he had informed his Education Provider of his situation, and a new Confirmation of Enrolment (COE) that was referred to in the NOICC (New COE) of which the Delegate appears to have learned over the course of their pre-NOICC interview with the applicant.
UNREASONABLENESS/FAILURE TO INQUIRE
The decision in Minister for Immigration and Border Protection v Srouji [2014] FCA 50 (Srouji) is of some relevance to this ground. The primary judge in that case had found that the applicant had not been afforded reasonable time in which to respond to a Notice of Intention to Cancel a visa. This was by reference to, inter alia, the primary judge’s view that sufficient time needed to have been given to locate and further speak with the applicant’s corroborative witness.
The primary judge’s decision was overturned on appeal in Srouji. Justice Jagot considered in some detail the statutory context to s 121(3)(b) of the Act (at [11]-[21]). Her Honour reasoned at [24]:
24.I am unable to accept these reasons or the conclusion reached. The reasons do not give any weight to the statutory scheme or the numerous provisions within it indicating that it is not contemplated that a person may remain in immigration clearance for a lengthy period. While it was necessary to consider Mr Srouji’s tiredness, ill health, the late hour, and how long he had already been questioned these factors had to be weighed in the overall statutory context. Further, it is not to the point that the evidence of Ms Al-Ayoubi may have corroborated Mr Srouji’s contentions. The issue is whether the period of time Mr Srouji was given to respond to the invitation to comment on the notice of proposed cancellation was a reasonable period. The period of 20 minutes to respond was not unreasonable given that Mr Sirouji had dealt with the interview, had asked for and had been offered rest breaks, was not in any apparent physical distress and, of course, was in immigration clearance at the airport under a statutory regime having the manifest intention that no-one should remain in immigration clearance, their immigration status undetermined, for any lengthy period.
The applicant contended that the Delegate ought to have made inquiries of the applicant’s Education Provider regarding the New COE. Alternatively, the applicant contended that the Delegate ought to have allowed the applicant to speak with his brother. This was in circumstances where:
(a)the applicant was able to provide, the day after the Delegate’s decision, medical evidence regarding his treatment in India;
(b)the applicant was also able to provide evidence, after the Delegate’s decision, that his brother had submitted a deferral application on his behalf to his Education Provider in August 2023 which had ultimately been granted, resulting in new COEs being issued; and;
(c)the Delegate was on notice that something was “afoot” in this regard, as they had become aware that the New COE had been issued over the course of interviewing the applicant.
The applicant relied upon his two affidavits as well as an affidavit made by his brother in relation to the above. The NOICC and a transcript of interview (Transcript) confirm that the Delegate became aware of the New COE over the course of the interview. However, the applicant does not appear to have informed the Delegate, in clear terms, of his brother’s submission of the deferral application in response (pages 19 to 21 of the Transcript).
Reliance was placed by the applicant upon the decision in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (SZIAI), in which it was observed at [25] per French CJ, Gummow, Hayne, Crennan JJ, Kiefel J (as her Honour was) and Bell J that:
25.… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review…
However, the mere fact that it may have been reasonable for a decision maker to have made further inquiries is insufficient to demonstrate jurisdictional error: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [33] per Dowsett, Pagone and Burley JJ.
In the present case, the Delegate was unaware that the applicant’s brother may have contacted the Education Provider on the applicant’s behalf to seek an extension. Given this, and in the absence of the applicant having explained to the Delegate if or why he wished to speak with his brother, I do not accept that the Delegate fell into relevant error by failing to facilitate such contact. Similarly, I do not accept that the Delegate unreasonably declined to allow the applicant further time to gather his medical evidence, in circumstances where he does not appear to have sought this opportunity.
Contact with the Education Provider is a possible inquiry that the Delegate may have undertaken in circumstances where there appeared to have been an unexplained issuance of a New COE in the applicant’s Advanced Diploma of Business (his previous COE in that course having been cancelled). However, it has not been established that any critical facts in this regard were capable of being “easily ascertained” from the Education Provider. Investigation of this would have taken time and been required to have occurred during business hours. This is within the statutory context considered by Jagot J in Srouji, which is one that exhibits “the manifest intention that no-one should remain in immigration clearance, their immigration status undetermined, for any lengthy period”: Srouji at [24]. It is also in circumstances where the applicant appeared to have been unaware of the New COE before being advised of it by the Delegate and had not clearly explained in response the basis upon which it had been granted (pages 19 to 21 of the Transcript).
Having regard to the above, I do not accept that jurisdictional error has been demonstrated under ground 1.
FAILURE TO CONSIDER
This aspect of grounds 2 and 3 contended that the Delegate failed to consider or engage with evidence before it to the effect that:
(a)the applicant had departed Australia in April 2023 and remained in India for some months for medical reasons, which had disrupted his study;
(b)he had informed his Education Provider of this; and
(c)he had been issued the New COE in his Advanced Diploma of Business course.
The applicant appears to have given some evidence to the Delegate in this regard before the record of interview commencing. That evidence was described as follows by the Delegate at page 6 of the Transcript:
[The Delegate]: … You last departed on 9 April 2023 as you were unwell. You’re currently studying at HMMK Education, located at Bankstown and you’re studying an Advanced Diploma in Administration, since 13 December 2022. You also said that you’re currently enrolled and that you did your study online and through the portal. You informed the – initially you mentioned that you informed the college in person, on the telephone and then you actually went in as well, but you don’t have any evidence of your contact with them or emails or anything.
It is not entirely clear whether (and if so, why) the applicant was expected to have email evidence of his contact with the Education Provider by telephone and in person. However, it may be that the Delegate had in mind some kind of acknowledgment or confirmation of his contact from the Education Provider.
Page 12 of the Transcript records the following exchanges in response to the Delegate’s questioning regarding the cancellation of the applicant’s COE:
[The Delegate]: $4500 owing and is that due to you just couldn’t pay them or…
Mr Mohammed: I was in India before five months…
[The Delegate]: Yeah, but before you went to India…
Mr Mohammed: …because of my health, yeah.
[The Delegate]: Yeah. As I said to you…
Mr Mohammed: I got some health issues, that’s why I stayed there, yeah.
[The Delegate]: Yeah and what are your health issues?
Mr Mohammed: My health issues, like an I got an infection, body infection. I was in hospital first time like 12 days, then seven days.
[The Delegate]: Why didn’t you provide this evidence to your school? If you were sick and you had to go home, why didn’t you tell them?
Mr Mohammed: There is nobody for me there, because already my four brothers is here.
[The Delegate]: No, but here…
Mohammed: I’m alone there.
[The Delegate]: In India?
Mr Mohammed: Yeah.
[The Delegate]: Yeah, I understand that, but what I’m saying to you is, you said to me that – I asked you about did you inform your school and you said yeah, I rang them. Then you said no, I went in person.
Mr Mohammed: Yeah, I went physically as well and I inform to the…
[The Delegate]: Yeah, so why didn’t get evidence that you had spoken to them and if they gave you permission to cease your studies, or to suspend your studies, if the school was given notification of issues with you or your health…
Mr Mohammed: When I was going from here, like I unable to work properly you know, like that situation [I can’t do now].
The applicant subsequently (at page 13) stated: “In April, yeah, I inform them I gone”. This was in response to a question “when did you stop studying”. The applicant then clarified that he had stopped studying a month or two prior to this, in “February, March like”. The following exchange then occurred:
[The Delegate]: Because when you tell a college that you have to change your CoE, or you have to, you know, circumstances…
Mr Mohammed: They suggest me to take this to CoE.
[The Delegate]: They suggested you…
Mr Mohammed: Yeah…
[The Delegate]: …yeah, but…
Mr Mohammed: …they suggest me.
[The Delegate]: That’s okay, so doing these courses is fine, but you need to meet the requirements…
Page 19 of the Transcript records the following exchanges:
[The Delegate]: Yeah, have you currently got any current CoEs that you're aware of?
Mr Mohammed: Currency with me?
[The Delegate]: Yeah. No, no. So from what our system shows, from what we were discussing in our interview, your CoE was cancelled because you didn’t complete your Diploma of Project Management course. Correct? Yeah?
Mr Mohammed: Yes.
[The Delegate]: Yeah. So do you currently have a CoE?
Mr Mohammed: No.
[The Delegate]: No. Now, we’ve checked the system and it appears that a new CoE for the Advanced Diploma of Business has been put in place as of tonight – sorry, as of last night, 8 September 2023. The problem is and what you're aware of is that in order to do an Advanced Diploma of Business you must have completed a Diploma of Project Management.
Within this context, and after some discussion of the fact that the applicant had not completed his prerequisite course, the following exchanges occurred (at page 20):
Mr Mohammed: …but I already informed them that I'm going to overseas because my…
[The Delegate]: Yeah.
Mr Mohammed: Have some…
[The Delegate]: Yeah.
Mr Mohammed: …health issue…
[The Delegate]: Yeah.
Mr Mohammed: …and family problem.
[The Delegate]: Okay. Yeah.
Mr Mohammed: So I…
[The Delegate]: So aware of…
Mr Mohammed: …sent them after I came – on third time I’ll do it.
It is apparent from the above that the applicant’s evidence to the Delegate was not a model of perfect clarity and precision. The applicant did not say exactly when or how each of his claimed contacts with his Education Provider had occurred. Some of his answers were not responsive to the questions asked. Many were given in broken English.
The Minister relied upon such issues in submitting that there was no “substantial, clearly articulated argument” that was made by the applicant in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ.
However, in my view it is sufficiently clear from the above that the applicant gave the following evidence and/or made the following claims during his pre-NOICC interview:
(a)he had left Australia in April 2023 and stayed in India for some months because he had been unwell, including by reference to an infection that caused him to become hospitalised for 12 days and then subsequently for 7 days;
(b)contact had been made with his Education Provider in respect of his health issues, in person and by telephone; and
(c)although the applicant had been unaware of the New COE issued by his Education Provider the night of his questioning at the airport, within this context the applicant had emphasised that he had told his Education Provider that he had to go away due to health issues and family problems.
The above evidence was centrally relevant to the matters that the Delegate was considering in their decision. Failure to consider or engage with this evidence was, accordingly, capable of giving rise to error in the sense considered in cases such as Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [111]-[112] per Robertson J and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (MZYTS) at [46]-[50] per Kenny and Griffiths JJ, and Mortimer J (as her Honour was).
The difficulty is that none of this evidence was noted, let alone engaged with, in the Delegate’s reasons for decision.
The Minister submitted that the question of whether or not an inference ought to be drawn that the evidence was not considered needed to be assessed within the context that the Delegate was not required to give reasons for their decision. In this regard, the Minister relied upon what was said in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25] per French CJ, Bell, Keane and Gordon JJ as to why in such cases “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate”. In such cases, it is not demonstrated that material was ignored simply by the fact that it was not mentioned, although inferences may be drawn from what the Delegate said by way of explanation for their decision.
I am not persuaded that this is a case in which the Delegate was not required to give reasons. Section 127 of the Act required the Delegate’s decision to be notified in writing and to “specify the ground of the cancellation”: s 127(2)(a). Section 25D of the Acts Interpretation Act 1901 (Cth) (Interpretation Act) provided:
Content of statements of reasons for decisions
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
The Minister submitted that s 25D of the Interpretation Act did not apply, given that s 127(2)(a) of the Act required the “ground of the cancellation” to be specified rather than the grounds or reasons for decision in the plural sense. This contemplated identification of one of the grounds available under s 116(1) of the Act.
However, although s 127(2)(a) stated that the decision maker was required to set out the “ground” of cancellation, rather than the “reason(s)” for cancellation, the terms “grounds” and “reasons” appear to be used synonymously in s 25D of the Interpretation Act. Further, s 25D was expressed to apply to “any other expression” in this regard that was used, which would seem to include the singular in addition to the plural (see also s 23 of the Interpretation Act).
The Minister submitted that a different construction appears to have been contemplated in CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 734 (CPC22) at [153] per Judge Vasta. There, his Honour expressed that all that was required under s 127 was to specify the ground for cancellation and to state whether the decision was reviewable. However, it is not clear from [152]-[153] that Judge Vasta intended to determine the issue of whether or not s 25D of the Interpretation Act applied within the context of s 127. At [152], his Honour acknowledged a submission that it did but considered that “this does not mean that there was an obligation on the Minister to write down all the considerations that the Minister has made in coming to the decision”. It therefore does not appear that his Honour considered it necessary to conclusively determine the issue.
I consider that it is similarly unnecessary to decide the point with any finality in this case, in circumstances where I do not consider that it will determine the outcome. This is because the Delegate did provide reasons in this case. Those reasons were of a particular nature. They purported to summarise the evidence that had been given by the applicant under such headings as “Provide a summary of the reasons the visa holder gave why their visa should not be cancelled” and “Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing)”.
Within this context, and within the context of what the Delegate included under these paragraphs, the omission of the main reasons the applicant submitted in his more lengthy interview with the Delegate as to why his study had been interrupted in 2023, his claimed communications with his Education Provider in this regard, and the fact that his New COE had been issued, is rather stark. It has been held that where a decision maker elects to provide reasons despite having no obligation to do so, “a supervising court is entitled to take a decision record as expressing the delegate’s reasoning on the exercise of power”: see ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [10] per Mortimer J (as her Honour was) and the cases cited therein; see also ABH18 v Minister for Home Affairs [2020] FCA 620 at [25] per Charlesworth J and DFF17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 149 at [45]-[53] per Deputy Chief Judge Mercuri.
I do not know why these matters were not considered in the Delegate’s decision. The Delegate appears to have been aware of them, at least at the interview stage and at the time of drafting the NOICC. The Delegate appears to have had some concerns, at least during the interview, regarding the applicant’s inability to point to any documentary evidence at the airport from the Education Provider acknowledging that the applicant had informed them of his situation and giving him an extension of time in which to meet his course requirements. At page 15 of the Transcript, the Delegate stated:
Yeah, so as much as I understand and take onboard what you told me about your health issues, my concern is you have no evidence of this. I believe what you’re telling me in regards that you had, may have had health problems, but you’ve got nothing to show me what those health issues were. You’ve got nothing to show me that the school has taken that onboard, or you’ve submitted documents to your school, because your school would definitely give you something in writing, to say you are permitted to start this course much later, you are permitted to continue studying, even though you owe money or you haven’t submitted…
There is authority against using a transcript of an interview or hearing to supplement and expand upon the stated reasons for decision: see BZM20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 145 at [42] per Judge Given and the cases cited therein. Such authority may have greater application where reasons for decision are required. In any event, the Delegate does not appear to have expressly rejected the applicant’s evidence in this regard notwithstanding the questions asked of him at interview.
As set out above, the Delegate referred in Attachment A to the NOICC to the applicant’s statements that he had departed Australia because he was unwell in April 2023, and that he had notified his college that he was unwell. In relation to both of these matters, the NOICC indicates that the applicant had stated that he was unable to provide (corroborative) evidence at the time of his initial interview. In any event, the Delegate did not, in clear terms, reject in the NOICC the possibility that the applicant had been unwell in 2023 and that this had been raised with his Education Provider.
At [7] of the Delegate’s decision, the Delegate referred to the applicant’s evidence that he had been “disturbed” by his father’s passing in February 2022, but did not refer to the applicant’s claim that he had departed Australia in April 2023 because he was unwell. Reference is made in handwritten notes I am informed were made by the Delegate to “health issues” and “infections”, but these are not referenced in the Delegate’s decision. The Delegate’s decision also does not appear to refer to the applicant’s oral evidence during interview that he had informed his Education Provider that he was unwell.
The only possibly relevant references in the decision record appear to be to there being “no evidence” that the applicant had approached his Education Provider to inform them of his being disturbed by his father’s passing in February 2022. However, this did not expressly engage with the applicant’s oral evidence of his communications with his Education Provider about his health issues in 2023. Nor was such evidence referred to at [9] of the Delegate’s decision (“Delegate’s assessment of the reasons the visa should not be cancelled”), notwithstanding the Delegate weighing against the applicant that “he had the opportunity to approach his education provider to inform of his compassionate reason for not studying” after his father passed away in February 2022, which the Delegate considered “may have prevented the cancellation of his Advanced Diploma of Business” in August 2023.
Within the context of the above reasoning, I find it strange that the Delegate did not refer in their decision to the more proximate health issues that the applicant claimed to have faced and were said to have caused his departure from Australia and residence overseas around the time that he claimed to have ceased studying in 2023. I also find it strange that the Delegate focussed upon, and held against the applicant, that there was no evidence that he had notified his Education Provider of his father’s passing, and yet not did refer to or engage at all with the applicant’s evidence that he had notified his Education Provider of his health situation that coincided with the claimed cessation of his studies in 2023. I find it particularly strange that, within this context, the Delegate did not refer to or engage at all with the fact that the New COE had been issued for the applicant’s Advanced Diploma of Business course. This was despite the Delegate’s heavy reliance upon the cancellation of the applicant’s enrolment in that course in finding that grounds for cancellation existed.
The Minister submitted that in referring to what the applicant had said about his father’s passing, the Delegate was relying upon the only response that the applicant had given to the NOICC. That may be so, but the applicant’s response to the NOICC was given in a very brief interview (with a duration totalling 2 minutes) following a longer pre-NOICC interview in which the issues raised in the NOICC had been discussed in some detail. The NOICC indicated that this evidence had been noted, would be considered and, therefore, that it did not need to be repeated. I do not consider that the Delegate was entitled then to disregard the applicant’s claims and evidence given in the pre-NOICC interview.
I accept that the Delegate’s reasons are not to be construed with “an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This is particularly so when the decision record has been produced at 2.26 am after a lengthy period of questioning.
However, in the present case there was a complete absence of reference to, or any express engagement with, the evidence in question. This is within the context of the Delegate’s reasoning that I have identified above. The evidence was centrally relevant to the matters that the Delegate considered in their decision. It went to both the assessment of whether or not the applicant was a genuine student as well as to the assessment of the other factors the Delegate purported to consider regarding whether the visa should be cancelled, under headings such as “summary of the reasons the visa holder gave why their visa should not be cancelled” and “Client circumstances in which the ground for cancellation arose (whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing)”.
In my Interlocutory Judgment, I suggested that the applicant’s lack of awareness of the New COE at interview, and acknowledgement that it was for a course in respect of which he had not yet completed a pre-requisite, might tend against both the objective significance of this evidence and the applicant’s contention that it was not considered (as opposed to having been considered not to have been material). However, I accept the applicant’s submission that this evidence must be considered in context. Although the applicant was not aware during questioning at the airport of the New COE that had been issued on the evening of the interview, this occurred in circumstances where the applicant claimed that he had been in contact with his Education Provider regarding his health difficulties and the reasons for his departure from Australia. The applicant gave evidence at interview that this had occurred within the context of the Delegate’s questions as to how the New COE came about: page 20 of the Transcript. Considered within this context, I accept that the new COE was of central relevance to the Delegate’s decision. The Delegate was required to consider and intellectually engage with this evidence, as well as the applicant’s claims and evidence regarding the health issues that he contended had interrupted his studies and which he claimed had been communicated to his Education Provider. I accept the applicant’s contention that the Delegate did not do so, having regard to the nature of the Delegate’s reasoning, and to the complete absence of any express consideration of this evidence in the decision.
The fact that the Delegate did not do so may be characterised as the species of error considered in SZRKT at [111]-[112], or a constructive failure to exercise jurisdiction: MZYTS at [46]-[50]. On either characterisation, I accept that the applicant has demonstrated jurisdictional error in relation to the Delegate’s decision.
In this regard, I am unable to accept the Minister’s submission that materiality is unable to be demonstrated. I accept that it may be considered unlikely that the Delegate’s decision would have been different if they had engaged with this evidence, given the concerns that they put to the applicant at interview. However, the threshold for materiality is not a high one. It is possible that if the Delegate had engaged with the applicant’s explanation for why he had ceased studying and his communications with his Education Provider, then the result may have been different. This is particularly so if the Delegate had engaged with this evidence within the context of the New COE.
CONCLUSION
For the above reasons, the application before the Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 September 2023
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