Ohakwume v Minister for Home Affairs
[2019] FCCA 1519
•5 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OHAKWUME v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1519 |
| Catchwords: MIGRATION – Student visa – cancellation of visa – spousal relationship with primary visa holder no longer exists – delegate and Tribunal decide that they are not satisfied the discretionary factors relevant to the decision on cancellation favour decision to not cancel visa – application for judicial review dismissed – reinstatement – applicable principles – explanation for failure to appear open to scrutiny – whether grounds of review arguable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 5CB, 5F Migration Regulations 1994 (Cth), reg.1.12, 16.05 Federal Circuit Court Rules 2001(Cth), r.13.03C |
| Cases cited: AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 | ||
| Applicant: | CHIDIEBERE PIUS OHAKWUME | |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 992 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Ms Wilde |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The application for reinstatement of the proceeding be dismissed.
The applicant pay the costs of the first respondent fixed at $2.280.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 992 of 2017
| CHIDIEBERE PIUS OHAKWUME |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 16 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal made on 21 April 2017 affirming the decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (Class TU) visa (visa) under s 116 of the Migration Act 1958 (Cth) (Act).
The application was dismissed by order of the court on 6 December 2017. The applicant now seeks to reinstate his application. The application for reinstatement should be refused. In summary, I consider that the applicant’s explanation for his non-appearance warrants scrutiny, he accepted that he is no longer in a spousal relationship with the primary visa holder and that his grounds of review are not, or not sufficiently, arguable as to warrant the exercise of discretion in favour of relief.
Background
The applicant, a Nigerian national aged 39 years, was granted the visa on 3 October 2014, which expired on 15 March 2016. The visa was granted on the basis that his wife, Patricia Omoregie, was studying in Australia and he was a member of her family unit.
On 9 December 2015, the Department notified the applicant of its intention to consider cancellation of his visa under s 116 of the Act on the basis that it had received information the applicant had ceased to be in an ongoing relationship with his wife, and as such ceased to be a member of Ms Omoregie’s family unit as prescribed by Reg 1.12 of the Migration Regulations1994 (Cth), (Regulations).
On 16 December 2015, the applicant’s authorised representative, VisaTec Legal requested, and the Department agreed to, an extension of time for the applicant to respond to the Department’s notice of intention to consider cancellation. In the event, neither, the applicant nor his authorised representative responded to the extended opportunity afforded to him to address the information that he had ceased to be in an ongoing relationship with his wife. Ultimately, this was conceded.
On 22 December 2015, the applicant’s wife provided the Department with a completed “Notification of changes in circumstances” form confirming that she had separated from the applicant.
On 22 January 2016, a delegate of the Minister made a decision to cancel the applicant’s visa pursuant to s 116(1)(a) of the Act, finding that the grounds for cancellation of the visa outweighed those in favour of not doing so.
On 27 January 2016, the applicant lodged an application with the Tribunal for review of the delegate’s decision. The application, which was lodged by email, nominated his migration agent as his representative for the purposes of the application and provided their email address.
On 28 September 2016, the Tribunal invited the applicant to attend a hearing on 18 November 2016 to give evidence and present arguments relating to the decision under review.
On 15 November 2016, the applicant’s representative provided the Tribunal with a number of documents including certificates from various educational providers and a document titled ‘Answers to Allegations’ consisting of the applicant’s submissions.
The applicant attended the hearing on 18 November 2016 with his representative, his Pastor and his fiancé.
Tribunal’s decision
On 21 April 2017, the Tribunal made a decision affirming the delegate’s decision to not grant a Student visa to the applicant under s 116 of the Act. A statement of reasons for that decision was provided (Reasons).
The Tribunal set out the relevant background and took into account the applicant’s written submissions dated 15 November 2015. The Tribunal correctly recognised that by par 116(1)(a) of the Act, the Minister was authorised to cancel a visa where satisfied that a fact or circumstance on which the issue of a visa had depended, no longer existed: [1]-[6]. In setting out its consideration of facts and circumstnaces that no longer existed, the Tribunal found the applicant was no longer the spouse of his wife as defined in s 5F of the Act, and was therefore no longer a member of her family unit as defined in r 1.12 of the Regulations.
The applicant told the Tribunal that he had travelled to Australia to support his wife while she studied, but that the parties had left their child in Nigeria with the maternal grandmother. He also said that he had been thrown out of his home some four months after his arrival in Australia as she was having an affair and that he planned to divorce her. He also said that some nine months before the Tribunal hearing he had met a person to whom he was engaged: [7]-[9]. The applicant’s fiancé also gave evidence to the Tribunal: [10], [14]. The Tribunal noted that the applicant had been granted a visa as a secondary applicant and, finding that he was no longer in a relationship with the primary visa applicant, concluded that this criterion for the grant of the visa was no longer satisfied: [11], [15]-[17]. The Tribunal was satisfied that a ground for cancellation of the visa existed: [18].
The Tribunal then proceeded to consider whether it should exercise its discretion not to cancel the visa. In doing so, the Tribunal considered relevant factors having regard to the Departmental Procedure’s Advice Manual, PAM3, ‘General visa cancellation powers’: [19].
The Tribunal noted that the applicant proposed to pursue study and expressed his desire to continue his relationship with his new fiancé. It gave little weight to the purpose of the applicant’s travel to and stay in Australia as he was no longer a member of his wife’s family unit: [20].
As there was no evidence before the Tribunal to suggest that the applicant had been non-compliant with his visa conditions, the Tribunal gave some weight to that factor: [22].
When considering the degree of hardship that may be caused if the visa was cancelled, the Tribunal accepted that the applicant had a daughter with whom he had had no contact with since separating with his wife. It recognised that access arrangements to spend time with his daughter would be more difficult if they were living in different countries. The Tribunal also accepted that the applicant and his fiancé were in a relationship and that cancelling the applicant’s visa would upset them and affect them deeply: [23]-[30].
The Tribunal gave the circumstances in which the ground of the visa cancellation arose some limited weight in favour of not cancelling the visa as it took into account the applicant’s evidence that his wife had been having an affair and had physically abused him and that, if the applicant had had access to legal advice at that time, he might have sought an Intervention Order (IVO) against her: [31].
The Tribunal also took into account that: (1) there was no evidence the applicant had been unco-operative with the Department; (2) there were no persons in Australia whose visas would, as a result of the cancellation of his visa, be cancelled under s 140: [32]-[33].
The Tribunal acknowledged that the applicant would be prevented from being granted a range of temporary visas for three years if his visa was cancelled and gave this consequence little weight: [35]-[36].
The Tribunal noted that although the applicant had not raised any concerns or arguments that international obligations would be breached as a result of his visa cancellation, the applicant was concerned that his wife’s family would try to deny him access to his daughter if he was to return to Nigeria and the child was returned to Australia. Although this was recognised as not being in the best interests of the child,[1] the Tribunal considered that, as the applicant had been separated for several years and not seen the child in that time, possible future access arrangements for the daughter to see the applicant involved speculation and accordingly, the Tribunal placed only some weight on this factor in favour of not cancelling the visa: [7]-[8], [37]-[39].
[1] As set out in the Convention on the Rights of the Child.
The Tribunal determined that more factors weighed in favour of cancelling the applicant’s visa than not doing so: [40]-[41].
After considering the information before it, the Tribunal concluded that the applicant’s visa should be cancelled: [42]-[44].
Procedural history
On 16 May 2017, the applicant filed an application for judicial review of the Tribunal’s decision made on 21 April 2017. An affidavit in support of the application was filed on that day which expanded upon, but was largely repetitious of the grounds of review and the findings as made by the Tribunal. However, the affidavit added that the applicant had made an application to Holmesglen TAFE to enable him to apply for a Student visa in his own right and that although his application was accepted by Holmesglen on 29 January 2016, the delegate had by then already made a decision to cancel his visa. The applicant also gave evidence as the status of his relations with his wife, deposing that:
Though my partner is having an affair with a another man, I still believe that she will come to her senses one day so that we can reconcile and give a meaningful life to our daughter.
Since he (sic) hasn’t filed an application for divorce, I still do not believe that our marriage is over.
An available inference is that the applicant’s relations with his fiancé were over and that the applicant was seeking to advance his application on a different basis than had been put to the Tribunal.
By a Response filed on 1 June 2017, the Minister opposed the making of the orders sought in the application on the grounds that the application did not establish any jurisdictional error in the decision of the Tribunal.
The matter was listed before the court on 6 December 2017. On that date, the applicant failed to appear and an order was made dismissing the application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001.
On 12 December 2017, the applicant filed an application in a case seeking an order for the reinstatement of his application. The applicant also filed an affidavit in support in which he deposed that he knew the hearing was scheduled to take place on 6 December 2017 but that he had not attended the hearing on that date because his room had been flooded, destroying all of his documents, including, as he said, the documentary record of the hearing date. He said that the hearing was very important.
Reinstatement
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c), Federal Circuit Court Rules 2001.
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson.[2] Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer.[3] The waste of scarce Court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[4]
[2] (1990) 93 ALR 479, 480 (McHugh J).
[3] (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
[4] [2016] FCA 1392, [11] (Logan J).
The principles that govern the court’s exercise of power under r 16.05(2)(a) in relation to an application for reinstatement of a matter after dismissal in the absence of an applicant were considered in MZYEZ v Minister for Immigration and Citizenship. Ryan J stated:[5]
In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs:[6]
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement (emphasis added)[7]
[5] [2010] FCA 530, [7].
[6] (2005) FCA 1066 at [18].
[7]Applied also by Perry J in BEN15 v Minister for Immigration and Border Protection [2016] FCA 211 at [17].
More recently, in CAL15 v Minister for Immigration and Border Protection,[8] Mortimer J restated the applicable test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs;[9] MZYEZ v Minister for Immigration and Citizenship;[10] BTR15 v Minister for Immigration and Citizenship;[11] AAI15 v Minister for Immigration and Border Protection.[12]
[8] [2016] FCA 1344, [4].
[9] [2005] FCA 1066 at [18] (North J).
[10] [2010] FCA 530 at [7] (Ryan J).
[11] [2016] FCA 892 at [7] (Edelman J).
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review are shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[13] There, Mortimer J stated at [6]:
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
More recently, in Savrimootoo v Minister for Immigration and Border Protection,[14] Mortimer J referred to CAL15 and affirmed that the discretion to reinstate a proceeding was a broad one.
[13] [2015] FCA 1391, [62]
[14] [2018] FCA 1167 at [47].
The assessment upon an application for reinstatement, which requires the court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[15]: cf BAL17 v Minister for Immigration and Border Protection.[16]
[15] (1936) 55 CLR 499, 504-505
[16] [2018] FCA 792, [10] (Bromwich J).
Length of delay & explanation.
The applicant’s grounds for reinstatement of his application and for setting aside of the orders of 6 December 2017 are as follows:
1. That I applied for Judicial review of a decision made by the Minister for Immigration and Border protection and affirmed by the Administrative Appeals Tribunal.
2. That the hearing was scheduled to take place on 6 December 2017.
3. That I did not attend the hearing because I do not have record of the hearing date.
4. My room was flooded as a result, all my documents were destroyed.
5. Given that my documents were destroyed I lost record of the hearing date.
6. I rang the Court on 7 December to ascertain the date of my hearing, unfortunately they informed that the hearing took place the previous day being 6 December 2017.
7. The Court informed me that my application was dismissed.
8. I believe that I have a reasonable excuse for my failure to attend court on 6 December 2017.
9. I request that my application dismissed on 6 December 2017 be reinstated.
10. I have no work right in Australia and have been undergoing financial hardship.
11. I ask that the Court dismiss the Order for Cost awarded against me.
12. I believe that my application for review of the Administrative Appeals tribunal decision has reasonable prospects of success.
13. I attach a photo of my room flooded by water, . . .
I have considered the photos of the applicant’s room which, although of poor quality, lend support to the claim that his room had been flooded. Nothing in those photos indicates the damage or loss of any documents.
Counsel for the Minister correctly submitted that apart from two photos exhibited to the applicant’s affidavit there was no independent evidence of proof of the damage or destruction of the ‘documents’ as the applicant claimed; that is, while the applicant deposed to the loss of documents, the evidence went no further on that issue.
The application for reinstatement was filed about a week after the order was made dismissing the application for judicial review.
Counsel for the Minister further correctly submitted that while the flooding incident had been regrettable, the applicant had accepted that he knew the application had been listed for hearing and that he considered it a very important matter to him. In those circumstances, it was submitted to be, at the least, surprising that, having supplied an email address for service in his application, the applicant had not retained an electronic record of the hearing date in his computer or mobile phone. Particularly that was said to be so as the notice of hearing had been transmitted to him electronically. In that respect, the applicant had supplied the same email address in both his application for judicial review and the application for reinstatement of the application.
I accept that some explanation for the delay has been proffered. I do not accept without qualification that it was adequate but include the explanation, such as it is, in my evaluation of the relevant factors.
Prejudice
While the Minister accepted that there would not be any prejudice to the Minister in responding to the application if the court were to grant an extension of time, the absence of prejudice is not of itself sufficient or capable of supporting a conclusion that in all the circumstances an order for reinstatement should be made.
Arguable case
As the applicant was self-represented before me, I have re-examined the court book, his application for review and the Tribunal’s reasons.
The immediate question on the present application is whether the applicant’s grounds of review are ‘arguable’ in the requisite sense. The applicant’s grounds for judicial review read as follows:[17]
1. The Tribunal committed an error of law.
2. Inflexible policy.
3.The tribunal failed to give weight to relevant matters and has given so weight to irrelevant matters.
4.cl 35 The tribunal failed to give weight to the consequences of my visa cancellation.
5.cl 32. The tribunal failed to give weight to my past and present conduct towards the department.
[17]The grounds have been numbered for ease of reference. The applicants reference to clause numbers may be understood as a reference to the paragraphs of the Reasons.
6. The tribunal failed to exercise his discretion unreasonably.
7.cl 38 The tribunal did not give weight to the fact that theres is a possibility that I will not have access to my daughter because my child was born in australia and she is an Australian Citizen. The Tribunal therefore failed to consider Australia’s obligations under the Convention on the rights of the child. It is in my daughter’s best interest to have time with my child Joy Richard born on 28 Feb 2013 at Melbourne Victoria.
8.cl 31 The tribunal did not attach any weight to cl 31, 37, 24, 21, 13 as specified in the attached decision record.
9.On the face of the record I believe that the tribunal has made an error of law. I was not granted procedural fairness. The tribunal member followed or applied policy inflexibly.
By way of overview, the grounds of review are expressed in a conclusory form and the court is left to discern the existence of jurisdictional error. In WZAVW v Minister for Immigration and Border Protection[18] Gilmour J said:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
[18][2016] FCA 760, [35] (citations omitted); MZARG v Minister for Immigration and Border Protection [2018] FCA 624, [25], (McKerracher J).
Notwithstanding those principles, it is appropriate to consider the Reasons and grounds of review and to assess whether they are arguable.
The applicant had been granted the visa on the basis that he satisfied the secondary criteria for that visa by reason that he was the spouse of his wife and was, therefore, a member of his wife’s ‘family unit’. The expression ‘family unit’ is defined in reg 1.12 and relevantly requires that a person be the spouse or de facto partner of the family head: see also ss 5CB and 5F as to the definitions of spouse and de facto partner.
As noted above, s 116 confers power to cancel a visa where the Minister is satisfied that the decision to grant that visa was based, wholly or partly, on a particular fact or circumstance that no longer exists. Relevantly, the applicant needed to continue to be the spouse of the primary visa holder if he was not to be exposed to the exercise of the discretionary power of cancellation conferred by s 116. I accept the Minister’s submission that the power to cancel a visa is broad.[19]
[19]Montero v Minister for Immigration and Border Protection (2014) 229 FCR 144, 114, [13], [38] (Flick J, Allsop CJ, Logan J agreeing).
Before the Tribunal, the applicant accepted that he was no longer in a spousal relationship with the primary visa holder. The Tribunal correctly recognised that this criterion for the visa no longer existed and that the power to consider whether or not to cancel the visa was engaged.
Before me the applicant submitted that: (a) his wife had cancelled his visa; (b) although his application for enrolment at Holmesglen had been accepted, the delegate had already made a decision to cancel the visa; (c) his house had been flooded; (d) he knew the application had been listed for hearing but could not remember the date; (e) he had a good claim because his (former) fiancé had concealed from him, but had now revealed, that they had conceived and a child which had been delivered in September 2017; (f) he had the DNA results to prove his parentage; (g) his fiance’s mother would not allow him to see the child; (h) he now had the child’s birth certificate and a ‘parentage’ order.
The content of the applicant’s oral submissions draws attention to two preliminary matters. First, as noted above, whereas the applicant had told the Tribunal that he intended to divorce his wife, for the purposes of this application he now deposed that he aspired to reconcile with his wife and did not believe the marriage was over. Judicial review of a decision must be considered in light of the basis on which it was advanced, not a basis conceived of by the applicant or their advisors after the event.[20] Secondly, in this court the applicant sought to rely upon a contention that the recent discovery of his having fathered a child of Australian citizenship. Insofar as the applicant sought to rely upon matters which had occurred since the Tribunal made its decision, counsel for the Minister correctly submitted that those matters were not germane to the issues that called for consideration by the Tribunal and could not be relevant to the question of whether its decision was tainted by error, including error that should be properly characterised as being jurisdictional. The discretionary power conferred by s 116 was to be exercised by reference to facts known at the time of decision.[21]
[20]Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, [1], [14] (Gleeson CJ).
[21] Montero v Minister for Immigration and Border Protection (2014) 229 FCR 144, 114, [13].
Counsel for the Minister identified the precise sequence of events which had led to the agreed position that the applicant’s wife had notified the Department that the parties were no longer in a relationship and that in those circumstances, the applicant did not satisfy the criteria as a secondary applicant for a Student visa. It was further submitted that upon that finding, the Tribunal was called upon to consider the discretionary factors which fell for consideration in deciding whether or not to affirm the decision that the visa be cancelled and in this context, the applicant had been afforded an opportunity to advance the evidence and arguments on which he relied in submitting that the visa ought not be cancelled. Counsel underlined that the applicant had been assisted by a migration representative before the Tribunal and that that representative had supplied various material to it before the hearing took place.
It is necessary to assess the content of each ground of review.
Ground 1 – error of law: This is so generalised as to be incapable of raising an arguable ground of review.
Ground 2 – inflexible policy: While the same conclusion may be reached in relation to this ground as in Ground 1, it is clear that the Tribunal had regard to the PAM3 ‘General visa cancellation powers’ and employed those guidelines in its decision: Reasons, [19]. The Tribunal was entitled to have regard to those guidelines and it did so: cf Drake v Minister for Ethnic Affairs (No.2);[22] Soegianto v Minister for Immigration & Multicultural Affairs;[23] Fernandez v Minister for Immigration and Border Protection.[24] No arguable basis is shown for concluding that the Tribunal applied those guidelines inflexibly. It was a matter for the Tribunal, not the court, to determine the appropriate weight to be give to the matters, which were to be taken into account in exercising the discretionary power whether or not to cancel the visa: cf Minister for Immigration and Citizenship v Khadgi.[25]
[22] [1979] AATA 179 (Brennan J).
[23] [2001] FCA 1612, [15]-[16] (Ryan J).
[24] [2015] FCA 1265, [60], [80] (Robertson J).
[25] [2010] FCAFC 145, [58] (The Court).
Ground 3 – relevant considerations: Nor do I consider that an arguable basis is shown for concluding the Tribunal failed to take into account any relevant consideration or that it took into account any which was irrelevant. The Tribunal correctly recognised that the applicant no longer satisfied the criteria of being in a spousal relationship with the primary visa holder. It considered the material placed before it by the applicant and had regard to the matters posed by the PAM3 guidelines.
Ground 4 – visa cancellation: Equally, the Tribunal plainly considered issues of hardship and the consequences of the visa cancellation and the finding which it made was fairly open. In those circumstances, it is not arguable that the Tribunal committed jurisdictional error in relation to the weight that it attached to these issues.
Ground 5 – conduct toward Department: Likewise, the alleged failure to give due weight to the applicant’s past and future conduct toward the applicant ignored that the Tribunal attached some weight to this consideration in the applicant’s favour: Reasons, [32].
Ground 6 – legal unreasonableness: I consider that the Tribunal properly addressed each of the factors to which it attached particular weight in favour of, or against, the decision to cancel the visa. The Tribunal’s analysis of the matters raised before it has been considered above. The Reasons demonstrate that the Tribunal engaged in an active intellectual consideration of each of those matters. Nor is there any merit in the broad complaint that the Tribunal exercised its discretion unreasonably. It is well settled that the test of legal unreasonableness is stringent and the cases in which it will be established are rare.[26] No arguable basis is shown for a conclusion that the stringent test of legal unreasonableness is satisfied in relation to the Tribunal’s exercise of discretion whether or not the applicant’s visa should be cancelled.
[26]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [11] (Kiefel CJ), [84], (Nettle and Gordon JJ).
Ground 7 – access to daughter: The Tribunal plainly had regard to the possibility that the applicant may not have access to his daughter. In doing so the Tribunal had regard to the Convention on the Rights of the Child. To the extent that the applicant contends that the Tribunal did not consider that the child born to his wife ‘was born in Australia’ there was no evidence to support that submission. The Tribunal found – and no complaint is made – that the parents had left the child in Nigeria to be cared for by the maternal grandmother, the applicant had been separated from his daughter for several years and that the outcome of future access to the daughter was necessarily a matter of speculation. This is not an arguable ground of review.
Ground 8 – weight attached: This complaint overlaps with, and may be understood as indicating that insufficient weight was attached to particular considerations. For the reasons above at [54], this does not supply an arguable basis for jurisdictional review. Further, as the Reasons at each of the impugned paragraphs demonstrate, the Tribunal did consider and determine whether to attach weight in favour of or against the decision to cancel the visa. In particular, and adopting the Applicants order of complaint in relation to the matters addressed by the:
a)Reasons at [31], the Tribunal addressed the circumstances in which cancellation arose and allowed in the applicant’s favour that, with the benefit of legal advice he might have sought an IVO. At noted above, the Tribunal gave the circumstances in which the ground of the visa cancellation arose some limited weight in favour of not cancelling the visa;
b)Reasons at [37], the Tribunal observed that although the applicant had not himself (or through his representative) raised any concerns that international obligations would be breached as a result of visa cancellation, it recognised the applicant’s stated concern that his mother in law, who had care of the child in Nigeria, may deny him access. The Tribunal accepted this as a possibility but considered it a matter of speculation in the circumstance that the applicant had not seen the child at any time since separation. The Tribunal also had regard to the best interests of the child under the Convention on the Rights of the Child: at [38]-[39];
c)Reasons at [24], the applicant’s representative submitted that the primary visa holder held ‘power’ over the child and may bring her to Australia, speculating that this may have already occurred. The Tribunal addressed this issue at [28] and, while regarding the child’s current whereabouts as a matter of speculation, accepted in the applicant’s favour that there may be arguments about access;
d)Reasons at [21], again, the Tribunal accepted in the applicant’s favour that there had been no issue of non-compliance with visa conditions and gave this some weight in his favour: [22];
e)Reasons at [13], the Tribunal confirmed that it had taken into account the applicant’s submissions, his Answers to Allegations, his various educational documentation including his enrolment by Holmesglen TAFE, Melbourne Polytechnic and Kangan Institute.
Viewing these matters collectively or as a whole, they do not provide an arguable basis for concluding that the Tribunal’s decision is tainted jurisdictional error.
Ground 9 – procedural fairness: I am not satisfied that the applicant has raised an arguable basis for the generalised complaint of a want of procedural fairness. The applicant participated fully in a hearing and made submissions and provided evidence both before and at that hearing.
Further, in my opinion, the Reasons demonstrate an intelligible justification for deciding to affirm the decision to cancel the visa. Absent particulars, I consider that these broad grounds are without merit.
In the related sphere of applications for an extension of time, it has been said that where the grounds of jurisdictional error are at best questionable and the explanation for failing to apply within time is less than satisfactory, that will tend to support declining to exercise a discretion to intervene.[27] Upon the principles stated in CAL15 and MZABP, I consider that the grounds upon which the applicant pressed for relief by way of judicial review do not rise to the level that the court should be satisfied that it is appropriate to hear full argument. In my opinion and to adapt the statement in House v The King,[28] it is neither unreasonable nor plainly unjust to conclude that the application ought to be reinstated in all the circumstances of this case.
[27]AZAFJ v Minister for Immigration and Border Protection [2016] FCA 291, [57] (Bromwich J).
[28] (1936) 55 CLR 499, 505.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 5 June 2019
[12] [2018] FCA 1110, [29] (Tracey J).
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