Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 762

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762

File number(s):

SYG 1829 of 2020

Judgment of:

JUDGE GOODCHILD

Date of judgment:

23 August 2023

Catchwords:

MIGRATION – judicial review of decision of Administrative Appeals Tribunal (“the Tribunal”) affirming decision of the delegate to cancel the applicant’s subclass 500 Student Visa – non-compliance with a condition of the visa – exercise of discretion not to cancel visa – whether Tribunal fell into jurisdictional error by failing to take into account the interests of two minor children – where the decision maker must consider the best interests of the children – where the error is material.  

Legislation:

Migration Act 1958 (Cth) ss 116, 359AA, 360

Migration Regulations 1994 (Cth)

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Gv Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511

Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 ALD 27

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

MuradvAssistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

Nathanson v Minister for Home Affairs and Another [2022] HCA 26; (2022) 403 ALR 398

Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501

PerezvMinister for Immigration & Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133

Division:

Division 2 General Federal Law

Number of paragraphs:

88

Date of hearing:

15 June 2023

Solicitor for Applicant:

Andie Lam Lawyers

Solicitor for Respondents:

Sparke Helmore Lawyers

ORDERS

SYG 1829 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

THI THU HIEN NGUYEN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE GOODCHILD
DATE OF ORDER:	23 AUGUST 2023

THE COURT ORDERS THAT:

1.The first respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 2 July 2020.

3.A writ of mandamus issue directed to the second respondent requiring the second respondent to determine the applicant’s review application according to law.

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 GOODCHILD:

1. These Reasons for Judgment concern an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 July 2020 affirming a decision of the delegate of the then Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”).

2. Section 116(1)(b) of the Act provides that “…the Minister may cancel a visa if he or she is satisfied that … its holder has not complied with a condition of the visa”.

3. There being no issue that the applicant had not complied with a condition of the visa, the issue before the Tribunal was whether it should exercise its discretion not to cancel the visa.

4. After observing that there are no matters specified in the Act or Migration Regulations 1994 (Cth) (“the Regulations”) that are required to be considered in relation to the exercise of the discretion, the Tribunal had regard to the matters raised by the applicant, and also to the applicable Procedures Advice Manual (“PAM3”).

5. The issue in this case is whether there was jurisdictional error in the Tribunal’s failure to exercise its discretion not to cancel the applicant’s visa. 

6. The applicant’s judicial review application propounds six grounds with particularisation within each ground. For the reasons given below, I am satisfied that the Tribunal’s decision is affected by jurisdictional error and as such, orders will be made setting aside the Tribunal’s decision and remitting the matter for determination according to law.

   FACTS

7. The following facts are not in dispute and are taken largely from the submissions of the parties.

8. Thi Thu Hien Nguyen is a 49 year old Vietnamese woman. She arrived in Australia as the holder of a Student (Class TU) (Subclass 573) visa in 2006. She has held a number of student and associated bridging visas since that time.

9. On 10 August 2017, the applicant was granted a Student (Class TU) (Subclass 500) visa on the basis that she was enrolled in a Doctor of Education. The applicant’s visa was subject to condition 8202(2)(a) of Schedule 8 to the Regulations, which required her to remain enrolled in a full-time registered course.

10. On 11 May 2018, the applicant was issued with a Notice of Intention to Consider Cancellation of her visa (“NOICC”) on the basis that she had failed to comply with condition 8202(2)(a). The applicant responded to that NOICC.

11. On 20 September 2018, a delegate of the Minister decided to cancel the applicant’s visa under s 116(1)(b) of the Act on the basis that she had failed to comply with condition 8202(2)(a) The delegate was satisfied that the reasons for cancelling the applicant’s visa outweighed the reasons for not cancelling.

12. On 27 September 2018, the applicant applied to the Tribunal for review of the delegate’s decision.

13. On 17 October 2018 and 22 May 2020, the applicant provided submissions and evidence to the Tribunal. On 26 May 2020, the applicant attended the hearing before the Tribunal assisted by her migration agent and a Vietnamese interpreter.

14. On 2 July 2020, the Tribunal affirmed the decision to cancel the applicant’s visa.

    SUMMARY OF THE TRIBUNAL’S DECISION

15. The Tribunal’s Statement of Decision and Reasons (“Reasons”) records that the Tribunal found that the applicant was not enrolled in a full-time registered course between 29 August 2017 and 13 January 2019 and as such, did not comply with condition 8202(2)(a) of Schedule 8 to the Regulations. The Reasons record the applicant agreeing that she had breached condition 8202 of her student visa.

16. In informing its discretion whether or not to cancel the applicant’s visa , the Tribunal had regard to the Department’s PAM3 “General visa cancellation powers”.

17. The Reasons are structured by reference to the nine (9) matters that should be considered in the PAM3 and identifies at the end of the consideration of each of those matters, the weight to be given to each respective consideration. The Reasons then conclude that, “having considered the evidence cumulatively”, the Tribunal considers that the grounds for cancelling the applicant’s student visa outweigh the grounds for not cancelling her visa. Ultimately, the Tribunal concluded that the applicant’s visa should be cancelled.

    APPLICANT’S GROUNDS OF REVIEW

18. The applicant’s judicial review application propounds six grounds of review with particularisation within each ground. I will consider each ground for the purposes of my determination of the application.

    Ground 1 Failure to consider a relevant matter

19. By Ground 1 the applicant contends that the Tribunal failed to observe the PAM3 Guidelines in respect of four matters (though matter two is not being pressed). I will consider each matter in turn.

    Matter 1 - The purpose of the Visa holder’s travel to and stay in Australia: delegate should assess whether the Visa holder has a compelling need to travel to or remain in Australia

20. The applicant submitted the following:

    (a)The Tribunal failed to consider evidence that the applicant had made efforts to enrol in Doctor of Education degree, and that obtaining an enrolment in a Doctor degree requires approval from the University and the process is more difficult than enrolling in a Master or Bachelor degree;

    (b)The Tribunal failed to address the applicant’s claim as to what her plans upon return to Vietnam are should she be allowed to stay in Australia and finish her studies; and

    (c)The Tribunal did not address the applicant’s compelling need to remain in Australia, that the Vietnamese government had granted a scholarship based on the condition that the applicant completed the course and return with that degree.

21. The Tribunal did consider the evidence of the applicant’s efforts to enrol in the Doctor of Education degree. Whether or not, and how, enrolling in a doctorate degree is more difficult than enrolling in a Masters or Bachelor’s degree, is of no consequence to the question of whether there was a compelling need for the applicant to remain in Australia, for the purposes of the completion of her Doctor of Education.

22. The Tribunal considered closely the history of the applicant’s tertiary education both in Vietnam and in Australia. The Tribunal noted that the applicant did not have a supervisor for her doctorate and that the applicant was searching for a supervisor. The Tribunal noted the migration history of the applicant from October 2013 when she was first granted a Subclass 574 Student visa until the point of the cancellation of her enrolment in the Doctor of Education on 29 August 2017.

23. At the time of the cancellation decision in September 2018, the applicant had been in Australia for seven years. The records from the Provider Registration and International Student Management System (PRISM) show that the applicant had completed the following: English for Further Study; Master of Education (by coursework); Master of Applied Linguistics; and English Language programs (beginner to advanced). The applicant also completed a Bachelor of Foreign Language in 2004 in Vietnam.

24. The applicant told the Tribunal that she obtained a Bachelor degree in Vietnam and that the purpose for which she travelled to Australia was to upgrade her skills.

25. With respect to her progress regarding the Doctorate of Education, the applicant’s evidence was that she completed the English Language Program at the University of Wollongong prior to starting the Doctor of Education. She told the Tribunal that it was a requirement. It is noteworthy that the date of award of the English for Tertiary Studies Bridging Course was 14 March 2014, which was the date the applicant qualified to enrol into the Doctor of Education program at the University of Wollongong. The Academic Transcript for her Doctor of Education course shows the completion of three years of study from which the applicant accrued 42 Credit points.

26. The Tribunal considered the evidence before it indicated the applicant “has a poor history as a student in Australia”. In my view, this seems to be a harsh assessment given the many years of study the applicant has undertaken, and where she has performed very well despite a lack of support and mental health challenges. I note, however, that jurisdictional error does not arise merely because an administrative decision may be harsh.

27. As the first respondent submitted, the Tribunal was asking itself whether there was a compelling need for the applicant to remain in Australia - having regard to the purpose of the applicant’s travel to and stay in Australia. The Tribunal was not required to consider the applicant’s claim as to what her plans were upon her return to Vietnam should she be allowed to stay in Australia and finish her studies.

28. The Tribunal recorded that the applicant stated that she was granted a scholarship from the Vietnamese government to undertake a Master of Education degree and a Doctor of Education degree. The Tribunal recorded that the applicant stated that the scholarship was for three years, but the Vietnamese government was willing to extend the time if she was not able to complete both degrees in that timeframe. I am not convinced that the fact that the Vietnamese government had granted a scholarship based on the condition that the applicant completed the course and returned with that degree was something of such a compelling nature that the Tribunal was required to specifically address.

29. The Tribunal concluded that it was not satisfied that the applicant would, for a number of reasons, actually go on to study the doctorate.

30. In the above circumstances, matter 1 is not made out and does not establish jurisdictional error in the Tribunal’s Decision.

    Matter 3 - The circumstances in which the ground for cancellation arose: delegate should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

31. The applicant submitted the following:

    (a)The Tribunal considered that the fact that the applicant was not enrolled from August 2017, that the applicant was not committed to her studies. The Tribunal has not accepted the applicant’s claim that her studies were discontinued because her supervisor had retired: Court Book (“CB”) 126 at [53]; and

    (b)The Tribunal failed to consider that there were exceptional circumstances outside of the applicant’s control including the separation with her husband, that led to his departure from Australia in 2019.

32. The Tribunal records the applicant’s reasons for not being enrolled in a full-time registered course between 29 August 2017 and 13 January 2019. The applicant explained the circumstances of the professor from the University of Wollongong retiring and then her studies being discontinued. It does not appear to me that the Tribunal did not accept that her studies were discontinued because her supervisor had retired. The Tribunal’s concern, it seems to me, is the amount of time that had passed since the applicant’s enrolment in the Doctor of Education degree, and the lack of both a supervisor and continuation of study for the Doctorate.

33. The Tribunal records the applicant as stating that the father of her children depended on her visa while completely neglecting his duty to provide, leaving her with triggers leading to depression and anxiety: CB [51]. There is no suggestion that the cancellation of the visa was being considered because of relationship breakdown, nor is there suggestion of any family violence. It is not entirely clear why the applicant considers that the separation from her husband should be considered an exceptional circumstance outside of her control that should be considered in the discretion to cancel the visa.

34. In the above circumstances, matter 3 is not made out and does not establish jurisdictional error in the Tribunal’s decision.

    Matter 4 - Whether there are persons in Australia whose Visas would, or may be, cancelled under s 140

35. The applicant submitted the following:

    (a)The Tribunal failed to consider any circumstances relating to the applicant’s son, born on 19 April 2009, and the applicant’s daughter born on 19 March 2003 (“the applicant’s children”);

    (b)The Tribunal did not consider any possible consequence for the applicant’s children as a result of her visa cancellation and removal from Australia; and

    (c)The father of the applicant’s children had left them when returning to Vietnam, and while the applicant was separated from her children’s father, the Tribunal did not consider the circumstances relating to the children specifically.

36. The Tribunal records the fact that the applicant had two children aged 17 years and 11 years at the time who were currently in Australia on student dependent visas. The decision records that both children were attending school and that the cancellation of the applicant’s student visa would result in a consequential cancellation of the children’s visas under s 140 of the Act.

37. The Tribunal stated that it gave this consideration weight in the applicant’s favour.

38. This matter is better considered with matter 5 below.

    Matter 5 - When considering whether to cancel a visa under s 109, s 116, s 116(1AA), s 128 and s 140(2) or whether to revoke a cancellation under s 131, officers must take into account any relevant obligations arising under such treaties

39. The applicant submitted the following:

    Best interests of the children - Article 3.1 of the Convention and the Rights of the Child (CRC) states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    Relevantly PAM states:

    Consideration should be given to the type and strength of the relationship(s) between the noncitizen and the child/children and also the extent of the impact that visa cancellation would have on the child.

    The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations apply only to children who are within Australia’s territory or jurisdiction.

    (As per original)

40. The applicant submitted that the Tribunal made no reference at all in its decision to the impact upon the applicant’s children, who were under 18 years old at the time of the decision. The applicant submitted that the Tribunal did not in fact give proper, genuine and realistic consideration to the children’s best interests and did not treat them, albeit by inference, as a primary consideration.

41. One of the matters from the PAM3 that the Tribunal was to have regard, was Australia’s international obligations. The Tribunal found that there was no evidence before it to indicate that the cancellation of the applicant’s student visa would result in the breach of Australia’s international obligations and did not give this consideration any weight in the applicant’s favour.

42. In my view, the Tribunal erred in failing to have regard to Australia’s international obligations having ratified the United Nations Convention of the Rights of the Child.

43. The Tribunal records the fact that the applicant had two children aged 17 years and 11 years at the time of the hearing and they were currently in Australia on student dependent visas, were both attending school and the cancellation of the applicant’s student visa would result in a consequential cancellation of both children’s visas under s 140 of the Act. The Tribunal gave this consideration weight in the applicant’s favour. The Tribunal accepted that if the student visa was cancelled it would cause the applicant and her family considerable hardship and gave this consideration weight in the applicant’s favour.

44. The applicant’s evidence was that she was a single mother of two children aged, in 2018, nine and 15. Her evidence with respect to the children included the following:

    (i)That Australia was a safe place from poverty and abusive alcoholics.

    (ii)The children wish to have opportunities to continue their study here in Australia until they finished university and they need their mother to be with them to care for them during that time.

    (iii)They are scared of going back to Vietnam because they would have to start studying the Vietnamese language, adapt to a different studying environment and different studying programs, and because the curriculum in Vietnam is harder.

    (iv)They had been in Australia for over four years at the time and were getting on well with study and with schooling.

    (v)They have socially expanded here, attended a public school, have great ambition to achieve.

    (vi)They are greatly stressed about possibly losing their friends and their life here in Australia.

    (vii)That she is responsible for looking after her children and providing for them financially.

1. The Tribunal expressed no finding as to what was the best interests of the children.

2. The Tribunal did not identify that the best interests of the children was a consideration relevant to its determination, nor did the Tribunal turn to consider how the interests of the children would be affected by going back to Vietnam.

3. There is nothing in the Reasons to suggest that the Tribunal considered the best interests of the children as a primary consideration at the same time of considering the matters which tended to support a decision adverse to the applicant.

4. Indeed, the Tribunal approached the matter in this way:

   The Tribunal is sympathetic to the applicant, the situation she finds herself in and her motivation for wanting to remain in Australia. However, she made the decision to bring her children to Australia and is responsible for the consequences that flow from that…

5. The Full Court in MuradvAssistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 articulates the relevant principles concerning the obligation to consider the best interests of the children as a primary consideration and how the obligation operates in making decisions under the Act:

   (a) Ground 1 – procedural unfairness

   28. The relevant principles are not in doubt. Procedural fairness requires that, if the Minister proposes to make a decision which does not accord with the legal requirement that the best interests of affected minor children be a primary consideration, prior notice has to be given and an adequate opportunity afforded so as to present a case against the taking of such a course (see Teoh at 291-292 per Mason CJ and Deane J). The source of this procedural fairness requirement is Art 3.1 of the United Nations Convention on the Rights of the Child, which provides:

   In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

   29. In Teoh, at 289, Mason CJ and Deane J emphasised the significance of the wording of Art 3.1 and the reference to the best interests of the child being “a” primary consideration. Their Honours added (emphasis in original):

   The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.

   Their Honours said at 292 that a “decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it”.

   30. Other authorities illustrate how the obligation to treat the best interests of a child as a primary consideration in making decisions under s 501 of the Act can give rise to jurisdictional error. For example, in Wan, the Full Court (Branson, North and Stone JJ) stated at [32]:

   An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

   31. Cases such as Nweke and Lesianawai illustrate how procedural unfairness can occur if, in conducting the balancing exercise under s 501, consideration of the best interests of a child is left at the level of mere hypothesis of possible harm, as opposed to the decision-maker first determining what in fact are those best interests, and only then assessing whether the strength of any other relevant considerations (whether primary or otherwise), such as risk of harm to the Australian community, outweighs the child’s best interests as a primary consideration. Thus, in both those cases, it was found that the Minister had fallen into error when the Minister’s statements of reasons indicated that the balancing exercise had been conducted on the basis of a finding or assumption that it may be in the children’s best interests if their father’s visa was not cancelled, without any decisive determination being first made on what the best interests of the children actually required.

6. In Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 ALD 27, Katzmann J at [36] considered that the principles above apply equally to decisions affecting visa applicants and visa holders facing the prospect of their visas being cancelled.

7. What was required was a close consideration of the material and evidence, a determination of what in fact were the best interests of the children, and then an assessment of those interests as a primary consideration in light of the other considerations.

8. In Gv Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511, Mortimer J (as she then was), in an application for judicial review of a decision of the Tribunal to refuse to approve a citizenship application for an eight year old boy, stated that the consideration of a child’s best interests requires a decision-maker actively to engage with what is likely to occur to a child, and to articulate, with some degree of specificity, how the child’s interests are likely to be affected. Her Honour saw the task was captured by Allsop J (as his Honour then was) in PerezvMinister for Immigration & Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 at [118]-[120]:

   118. In Wan, supra, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interests of the children indicated, was of particular significance: see Wan, supra at [20]. Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal. Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. An appreciation of the facts set out at paras 8 to 11 of the reasons ([77] above) and of the contents of the `compassionate statements' referred to in para 17 of the reasons ([79] above) does not mean that from that material the bests interests of the children have been identified and appreciated, and taken into account as a primary consideration. It is not just a matter for `compassion' as para 17 would tend to indicate was the view of the delegate. `Compassion' is participation in another's s five migration that goes into it is not just be an was Amy and Josh Josh’s filling Amy and so long as one to say that you know that’s not been controlling that’s been efficient consistent is nothing transferred into the any further think but please refer to the CC that simple for the seven matters just yet you write that suffering, fellow-feeling, sympathy, pity inclining one to show mercy or give aid: The New Shorter Oxford Dictionary (1993). The interests of the children are considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in gaol, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).

   119. The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children. The delegate did not say that he had taken the children's interests into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.

   120. It is not enough to say, as in a sense the respondent submits, that all this is found in paras 8 to 11 and 17 of the reasons (see [77] and [79] above). It is not. The delegate certainly took facts concerning the family and children into account. He recognised, and expressed himself in para 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one: of identifying what are the best interests of the children, and then considering them in the way the law requires.

9. The first respondent submits that the Tribunal did have evidence before it concerning the children. The first respondent submitted that the way the applicant framed the case was essentially a claim of hardship for the children and the Tribunal, in what was said to be a very orthodox fashion, had read, identified and understood and considered that claim and accepted that there will be hardship to the children and gave that weight in the applicant’s favour. The first respondent says that it can clearly be inferred that the Tribunal considered what the best interests were and accepted that it was not in the children’s best interests to cancel the applicant’s visa due to there being a favourable weighing of those factors for the applicant with the finding of hardship. The first respondent says it was inherent in what the Tribunal was doing that there was a finding that it was not in the children’s best interests to cancel the visa.

10. The first respondent distinguished the circumstances of this case with the circumstances of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, where the Court found there was just a mere hypothesis about the potential harm to children. The first respondent says in this case there is no hypothesis. In the first respondent’s submission, the Tribunal accepted that hardship would be caused and the Court should draw inferences from the Reasons that the Tribunal correctly considered the best interests of the children.

11. I do not accept these submissions. It is the case that when considering the degree of hardship that may be caused, the Tribunal accepted that if the student visa was cancelled it would cause the applicant and the family considerable hardship. However, that is the extent of the consideration. There is no mention of the interests of the applicant’s children other than a recitation of the factual matters presented by the applicant. There are no findings as to the interests of the applicant’s children, nor any findings as to what the impact would be on the children’s interests of the cancelling of their mother’s visa. As identified in Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501 (at [21]), the Tribunal never confronted the central question of what the best interests of the children required it to decide with respect to the proposed cancellation of their mother’s visa. Importantly, not having done so as the starting point, the Tribunal could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration.

12. In the present case, consideration of the Tribunal’s Reasons supports the inference that the best interests of the applicant’s children were not treated as a primary consideration when deciding whether or not to cancel the applicant’s visa. Such a failure by the Tribunal to treat the best interests of the applicant’s children as a primary consideration in accordance with well-established principles, was an error of law.

13. Error alone is not sufficient to establish jurisdictional error. The Tribunal’s error in failing to accord procedural fairness will have involved jurisdictional error only if that failure was material to the Tribunal’s decision. In this regard, the High Court in Nathanson v Minister for Home Affairs and Another [2022] HCA 26; (2022) 403 ALR 398 (relying upon MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506), instructs that the applicant is not required to articulate a specific course of action which could have realistically changed the result; it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”; the standard of reasonable conjecture as to the realistic possibility of a different outcome is undemanding: [1], [30], [32], [33].

14. In giving little weight in the applicant’s favour to the circumstances in which the ground for cancellation arose, the Tribunal did not identify what in fact was the best interests of the children, how the cancellation of the applicant’s visa would impact upon those best interests and then weigh those considerations as primary considerations with other considerations. Had the Tribunal undertaken that task, there may have been a different outcome.

15. In giving weight in the applicant’s favour to degree of hardship that may be caused, the Tribunal referred to the evidence given by the applicant as to the circumstances of her children. Again, however, in considering this evidence the Tribunal did not in fact identify the best interests of the children and how the cancellation of the applicant’s visa would impact upon those best interests. It may have been that greater weight was placed on this particular PAM3 consideration such that after a proper consideration of the evidence and other material before it, the strength of this consideration outweighed the strength of other considerations.

16. As I stated above at [41], one of the matters from the PAM3 that the Tribunal was to have regard, was Australia’s international obligations. The Tribunal found that there was no evidence before it to indicate that the cancellation of the applicant’s student visa would result in the breach of Australia’s international obligations and did not give this consideration any weight in the applicant’s favour. Had the Tribunal considered Australia’s international obligations in weighing the grounds for not cancelling the applicant’s visa, there may have been a different outcome.

17. In the above circumstances, I am satisfied that matter 5 of Ground 1 is made out and establishes jurisdictional error in the Tribunal’s Decision.

    Ground 2 - Denial of procedural fairness

18. The applicant submits that the Tribunal denied her procedural fairness because the Tribunal failed to address a substantial part of the matters she put forward in support of her claim that, despite the breach, the discretion under s 116 of the Act should be exercised in her favour not to cancel her student visa.

19. As I understand this ground of review, the applicant contends that the Tribunal failed to consider her evidence with respect to her commitment to studying, and the extenuating circumstances in which the ground for cancellation arose including the retirement of her supervising professor, the applicant’s mental health challenges, significant successful completion of six subjects for her Doctor of Education and her plans should she be allowed to stay in Australia and complete her studies.

20. It would have to be said that the applicant’s complaint is really more with the outcome, than the failure by the Tribunal to have regard to the above matters. The applicant’s complaint is that the decision-maker has given insufficient weight to some matters and given excessive weight to others. The authorities have long stated that dissatisfaction with the merits of administrative action does not sound in judicial review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 –36; see also SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 160 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 174 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 351 –352.

21. In the above circumstances, Ground 2 is not made out and does not establish jurisdictional error in the Tribunal’s Decision.

    Ground 3 - Failure to comply with s 359AA (1)(b)(iv)

22. Section 359AA(1)(b)(iv) of the Act provides the following:

    Information and invitation given orally by Tribunal while applicant appearing

    (1)If an applicant is appearing before the Tribunal because of an invitation under section 360:

    …

    (b)  if the Tribunal does so--the Tribunal must:

    …

    (iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

23. The applicant submits that the decision of the Tribunal to refuse the applicant’s request for an adjournment of the Tribunal hearing was an error in the exercise of its discretion which was jurisdictional in nature. There is no transcript in evidence before me.

24. The Reasons record that during the hearing the Tribunal put information concerning the records of the Department of Education to the applicant and noted that it may find that she had breached condition 8202 of her student visa and that her student visa should be cancelled. At this point the applicant responded by requesting an adjournment to obtain evidence that during that time she continued her research she was in contact with universities to complete her studies. The Reasons record the Tribunal pointing out to the applicant that her migration agent had already provided that evidence to the Tribunal.

25. This ground of review needs to be considered in light of the applicant’s concession, which is recorded in the Reasons, that she stated that she had agreed she had breached condition 8202 of her student visa. During the hearing the applicant gave evidence that her last student visa was granted on 10 August 2017 and that her enrolment in the Doctor of Education degree was cancelled on 29 August 2017.

26. On the face of the Tribunal’s Reasons, there does not appear to me to be a failure to comply with s 359AA(1)(b)(iv). The applicant requested an adjournment to obtain evidence. It would appear that that request was considered by the Tribunal and the Tribunal pointed out to the applicant that the material had already been provided to the Tribunal by the migration agent.

27. In the above circumstances, Ground 3 is not made out and does not establish jurisdictional error in the Tribunal’s Decision.

    Ground 4 - Apprehended bias

1. The applicant submits that the Tribunal conducted the hearing in a manner which gave rise to a reasonable apprehension of bias or which otherwise involved the departure from the procedural fairness requirements incorporated within s 360 of the Act.

2. The applicant submits that reading the decision as a whole, an impression arises that the Tribunal disbelieved the applicant at every turn and the Tribunal was finding evidence that weighed against the applicant.

3. The applicant grounds this submission on observations reflected in the Reasons with respect to the applicant’s medical evidence and with respect to her ability to concentrate on her studies whilst caring for her children and working to provide for them.

4. I agree with the submissions of the first respondent. An allegation of bias is a serious allegation that must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69], [127].

5. The respondent submits that it was open to the Tribunal to have regard to the evidence provided by the applicant to the delegate, as well as her evidence that she wished to support her children in Australia until they finished university as indicative that she had no intention to return to Vietnam.

6. As I have already expressed, the finding that the applicant “has a poor history as a student in Australia”, was not in my view open to the Tribunal. Further, I do not agree that the applicant’s response to the NOITCC and her written statement to the Tribunal tend to indicate that her priority was looking after and providing for her children. My reading of the applicant’s evidence is that due to the retirement of her supervisor she was unable to continue with her Doctorate at the University of Wollongong, that she has made genuine efforts to continue with her study in the challenging circumstances of being a single mother, providing financially and emotionally for her children and encountering her own mental health challenges. My reading of the applicant’s evidence is that she had a genuine intention to return to Vietnam upon the completion of her Doctorate and was seeking further time to complete her study.

7. However, I do not think that the matters to which the applicant has drawn the Court’s attention ground any suggestion of bias.

8. In the above circumstances, Ground 4 is not made out and does not establish jurisdictional error in the Tribunal’s Decision.

   Ground 5 and 6 - Irrelevant considerations and applying the wrong test

9. The applicant submits that the Tribunal’s finding that the applicant did not have financial capacity to pay for a Doctor of Education degree, and that she was caring and providing for her children were irrelevant considerations for the purposes of the regulatory requirements for exercising the discretion whether to cancel the applicant’s visa.

10. The applicant submits that financial capacity is not one of the 10 matters in the policy that the Tribunal should consider in exercising its discretion, but is rather a prescribed criterion under the Subclass 500 visa application. The applicant says she had already met the financial capacity test in her student visa application, which was granted on 10 August 2017. The applicant submits that the Tribunal made a number of erroneous assumptions including, most significantly, that the applicant’s care for the children would prevent her from studying.

11. The Tribunal was not satisfied that the applicant had “the financial capacity to pay for a Doctor of Education degree in Australia”, which led to the finding that it was “highly unlikely that she will be able to undertake this degree if her student visa is not cancelled”.

12. The Tribunal based this finding upon a consideration of the discharge summary from Liverpool Hospital which recorded that the applicant reported to a treating doctor in May 2018 that she deferred her studies partly due to financial reasons as she had finished her scholarship funds; her evidence that she has two school children in Australia for whom she is responsible; her statement that her husband did not fulfil his role as provider and that he had returned to Vietnam, and her statement that she was not working at the time of the hearing and had not worked for about three years and that she supports herself and her children from her savings and her parents also help her. Curiously, there is no evidence that, before finding it unlikely that the applicant would be able to undertake the degree, the Tribunal enquired of the applicant directly whether or not she had the financial capacity to pay for a Doctoral of Education degree in Australia. In any event, I think in the circumstances of the case, it was open to the Tribunal to have regard to the evidence that was before it as to the applicant’s financial capacity.

13. The applicant submits that in deciding whether or not to cancel the applicant’s visa under s 116 of the Act, the Tribunal had a broad discretion and was required to consider all of the applicant’s circumstances. In [63] of its decision, the Tribunal found that “these are not exceptional circumstances beyond her control”. The applicant submits that in so finding, the Tribunal applied a presumption that a breach of condition 8202 was sufficient for her visa to be cancelled and that the applicant was required to displace that presumption by pointing to extenuating or compassionate circumstances such that her visa ought not to be cancelled.

14. I do not agree with the applicant’s submission that the Tribunal applied the wrong test under s 116 of the Act. The Tribunal considered the applicant’s circumstances as raised before it, including the matters in the PAM3 and made an evaluative judgement with respect to those matters in exercising its discretion to cancel the visa. As I have found above, the Tribunal did err in failing to treat the best interests of the applicant’s children as a primary consideration. As I also indicated above there were some aspects of the Tribunal’s decision that I did not agree with, however I do not think the wrong test was applied.

15. In the above circumstances, Ground 5 and 6 are not made out and do not establish jurisdictional error in the Tribunal’s Decision.

    CONCLUSION

16. As I am satisfied that the Tribunal fell into jurisdictional error in failing to treat the best interests of the applicant’s children as a primary consideration as contended in Ground 1, the applicant is entitled to the relief as sought. 

17. The orders I make are set out at the front of this Judgment.

89          I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild.

Associate:

Dated: 23 August 2023