Pathak v Minister for Immigration

[2014] FCCA 2778

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATHAK & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2778

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether decision was illogical or irrational – whether decision to not exercise a discretion was unreasonable – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.476

Migration Regulations 1994 (Cth) Schedule 2, Schedule 5A

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Chava v Minister for Immigration and Border Protection [2014] FCA 313
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

First Applicant: LALITA KANDEL PATHAK

Second Applicant: PRABHAT KANDEL

Third Applicant: SADHANA KANDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1211 of 2013

Judgment of: Judge Nicholls

Hearing date: 29 April 2014

Date of Last Submission: 29 April 2014

Delivered at: Sydney

Delivered on: 28 November 2014

REPRESENTATION

Solicitors for the Applicants: Mr M Newman of Newman & Associates

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application made on 29 May 2013 and amended on 29 April 2014 is dismissed.

2. The first and second applicant pay the first respondent’s cost set in the amount of $8,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1211 of 2013

LALITA KANDEL PATHAK

First Applicant

PRABHAT KANDEL
Second Applicant

SADHANA KANDEL
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 May 2013 and amended on 29 April 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 10 May 2013 which affirmed the decision of the Minister’s delegate to refuse Student (Temporary) (Class TU) visas (“the visa”) to the applicants.

Background

1. The applicants are all citizens of Nepal. Mrs Lalita Kandel Pathak (“the applicant”) applied for the visa on 1 December 2010 (“Court Book” – “CB” ‑ CB 1). Her husband, Mr Prabhat Kandel (“the second applicant”), and her child Ms Sadhana Kandel (“the third applicant”) relied on her claims to the visa.

2. Relevantly, one of the criteria for the grant of the visa was the Minister’s satisfaction that while the applicant held the visa she would have access to certain funds (Schedule 5A of the Migration Regulations 1994 (Cth) (“the Regulations”) as it relates to the applicant’s financial capacity, see cl.572.223(2)(a)(iii) of Schedule 2 the Regulations). Further, the applicant was required to give evidence she had access to funds from an “acceptable source”, sufficient to meet certain expenses in the first 36 months of the life of the visa.

3. The delegate found that the applicant did not satisfy these criteria. The application for the visas was refused (CB 124 to CB 129).

The Tribunal

1. The applicants applied to the Tribunal for review of the delegate’s decision on 15 March 2011. They were assisted by a registered migration agent (CB 131 to CB 138). The applicant submitted further documentation about funds held in Nepal. Plainly this was directed to establishing that she had access to sufficient funds from an acceptable source (CB 163 to CB 167).

2. A departmental officer conducted an “integrity check” in relation to these documents. She found that the funds came from an “unacceptable financial sponsor” (with reference to “Subclass 572(AL-4)”, see CB 172). Further, that there were concerns about access to the funds (CB 172 to CB 173).

3. The applicant attended a hearing before the Tribunal on 31 January 2012 (CB 168 to CB 171). She was given the opportunity to submit further documents. Her representative subsequently did so, on her behalf (CB 174 to CB 193). The Tribunal wrote to the applicant on 9 March 2012 inviting her comment on, or response to, information from the Australian High Commission in Delhi about the documents she had submitted (CB 196 to CB 198). The applicant engaged new representatives, who responded on her behalf (CB 199 to CB 205).

4. The Tribunal affirmed the delegate’s decision on 13 April 2012 (CB 230 to CB 240). However it did not consider that response from the new representatives (CB 243). The applicant successfully sought judicial review of that decision (CB 247).

5. The application for review therefore recommenced with a differently constituted Tribunal (the Tribunal whose decision is currently before the Court).

6. On 17 April 2013, the applicants were invited to a hearing before the Tribunal scheduled for 10 May 2013 (CB 263). Relevantly, the Tribunal’s letter included the following (CB 263):

   “Additionally, the Tribunal invites you to provide the following:

   …

   3. Current evidence that you satisfy English language, financial capacity and ‘Other’ requirements in any of the alternative ways applicable for your assessment level set out in Schedule 5A for the purposes of cl.572.223(2)(a)(i)…”

   [Emphasis in the original.]

7. The Tribunal’s letter provided some relevant detail to the applicant about the information required. The Tribunal’s letter included the following (CB 265):

   “The Tribunal invites you to provide the above information by 3 May 2013, and the Tribunal will seek to make a decision at the conclusion of the hearing. The Tribunal notes that a delegate of the Minister first requested some of this information from you on 2 December 2010. If you are unable to provide this information by the hearing date, the Tribunal will require good reason to grant additional time.”

   [Emphasis in the original.]

8. The applicants’ representative responded on 8 May 2013 and further documents were provided (CB 278 to CB 294). At this point, important elements in the applicant’s case changed in at least two significant ways. First, as was noted in the representative’s response, the applicant provided a Confirmation of Enrolment Certificate (“COE”) for a different course to the one she had previously submitted, and relied upon. The applicant’s representatives understood, as they submitted, that this “changed” the applicant’s relevant visa class from that set out at cl.572 to cl.573 of the Regulations (CB 279.7).

9. Second, this had the effect of “changing” the relevant financial criteria. In particular, the applicant now had available to her a wider range of sources from which to obtain funds. For current purpose, this meant that the applicant could now satisfy the relevant criterion by providing evidence of funds from (cl.5A508(2)(b) of Sch.5A to the Regulations, as at the relevant time):

   “…a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;”

10. The applicant and her husband attended the hearing before the Tribunal on 10 May 2013 (CB 298). The only account of what occurred at the hearing, in evidence before the Court, is the Tribunal’s account, set out in its decision record ([15] – [37] at CB 320 to CB 324). While the Tribunal’s account reveals that a number of matters were discussed, for current purposes, the following matters are of note:

    1)The applicant had not studied since April 2012 ([23] – [25] at CB 321 to CB 322).

    2)The English language requirements as set out at Sch.5A to the Regulations ([26] – [27] at CB 322).

    3)The relevant financial capacity requirements ([28] at CB 322 to [33] at CB 323 to CB 324). In this regard, the applicant stated that she only relied on the support from her cousin in Australia, and not the documents from Nepal ([29] at CB 323).

11. The basis for the Tribunal’s decision is set out at [40] – [42] of its decision record (at CB 325):

    “[40] The Tribunal calculated the applicant’s Schedule 5A financial capacity requirements as totalling $94,600, which equated to NPR 8,324,800.  The applicant agreed this was correct.

    [41] The applicant provided a Commonwealth Bank certificate of balance for her cousin’s account which, as at 12 April 2012, had a credit balance of $149,814.33.  However, this does not meet the definition of “funds from an acceptable source” as on this evidence the Tribunal cannot be satisfied that this money deposit had been held for at least the 3 months immediately before the visa application was made on 1 December 2010 or that these funds are still available.  They are not, therefore, “funds from an acceptable source” for the purposes of cl.5A508.

    [42] On the basis of the above, the Tribunal finds that the applicant has not given evidence, in accordance with the requirements in Schedule 5A for Subclass 573 and the assessment level to which she is subject, in relation to the necessary financial capacity.  Accordingly, the applicant does not satisfy the requirements of cl.573.223(2)(a)(i).”

Application Before the Court

1. The “ground” of the application before the Court is said to be as follows:

   “In November 2012 by consent the Court made orders quashing the second respondent’s decision of 13 April 2012 and by writ of mandamus directed it to determine according to law the application for review of the delegate’s decision for the reason that a submission received by the Tribunal after the date of decision but before its publication was not considered. On 10 May 2013 the second respondent reheard the said application and published its decision on 20 May2013 but in so doing moved the goal posts as it were by treating her absence of study in the period between the departmental refusal of a student visa and the tribunal hearing (of May 2013) as evidence detracting from her genuineness and grounds for refusing an extension of time for further evidence of financial support to be provided. That finding was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

   The applicant says the Tribunal erred in its jurisdiction and that the decision should be set aside.”

Before the Court

1. At the hearing Mr M Newman appeared for the applicants. Mr J Smith of counsel appeared for the Minister. The Court had before it in evidence a bundle of relevant documents (“the Court Book” – “CB”) and written submissions from both parties.

2. As is apparent from what is reproduced at [16] above, the ground of the application was in narrative form which could suggest, if properly pleaded, a number of errors in the exercise of the Tribunal’s jurisdiction.

3. The written submissions, if taken as a comprehensive expression of the applicants’ assertions of legal error, appeared to narrow the possibilities of assertions of legal error. At the hearing I sought a concise expression of the assertions of error on the part of the Tribunal.

4. The following, with leave, was filed by the applicant in Court:

   “The Tribunal erred in its jurisdiction and in law when it found para 36 “the applicant’s study history in Australia caused the Tribunal to doubt whether she is a genuine applicant for entry and stay as a student”. In making this finding the Tribunal unreasonably in the light of the evidence that studies were interrupted because of the legal hiatus in which the applicant found herself and this finding caused the Tribunal to deny the applicant’s request for a short period of time in which to garner evidence from overseas regarding her financial capacity to pay for the studies.”

5. Before the Court, the applicants’ submissions emphasised a number of points. When pressed, the applicants asserted that the legal challenge to the Tribunal’s decision was that it was irrational or illogical. The basis for this was said to be because the Tribunal relied on the applicant’s lack of study since April 2012 to find that she was not a genuine student. A second complaint was that the Tribunal relied on this finding to refuse the applicant additional time to obtain further evidence as to the relevant financial situation.

6. At best, and in summary, I understood the applicants’ argument to focus on two matters. First, the Tribunal decision itself was irrational and illogical given the reasoning that the applicant was not a genuine student. Second, that the decision to refuse the applicant additional time to provide further documents was unreasonable.

7. The immediate point to be made about this is that on any plain, let alone a fair, reading of the Tribunal’s decision, the basis for the Tribunal’s decision was, as referred to above (at [15]), that the applicant had not provided evidence such as to satisfy the relevant financial capacity requirement for the grant of the visa.

8. It is the case that the Tribunal did discuss the applicant’s “study gap” with her at the hearing. It recognised this in its “Findings and Reasons”. However, it explained ([43] at CB 325):

   “Although the Tribunal discussed with the applicant its concerns regarding her study history in Australia, in light of the Tribunal’s finding at paragraph 42, which is fatal to the application, it is unnecessary to go on to make a finding in relation to whether the applicant is a genuine applicant for entry and stay as a student for the purposes of cl.573.223(2)(a)(ii).”

   (For paragraph [42] see [15] above).

9. In terms of the applicants’ first focus, therefore, whatever the Tribunal may have said at the hearing concerning whether or not the applicant was a genuine student, this cannot impugn the different basis for the conclusion reached by the Tribunal. That is, the lack of evidence as to sufficient funds. That basis was not the subject of any such attack by the applicant before the Court.

10. In any event, I cannot see that the Tribunal’s concerns, as explained at the hearing, about the genuineness of the applicant’s intentions to study were illogical, irrational or unreasonable. Those concerns arose out of relevant findings before the Tribunal and relevant criteria for the visa, that, at cl.573.223(1) of the Regulations:

    “(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    …

    (ii)  the applicant’s immigration history; and…”

    [Emphasis added.]

11. At the hearing, amongst other matters, the Tribunal focussed on the “gap” in the applicant’s study, and its relevance in context with her immigration history (see at [35] – [36] at CB 324). This focus was entirely logical, rational and reasonable given the regulatory requirement. The applicant’s genuineness (or otherwise) as a student, and her immigration history, is central in informing the relevant level of satisfaction in this regard.

12. During the course of the hearing before the Court it became clear that the gravamen of the applicant’s complaint emanated from the second focus identified at [21] above.

13. That is, as I understood it, that at the Tribunal hearing the applicant asked the Tribunal for more time so that her cousin could provide documents in relation to the question of “funds from an acceptable source”. The applicant submitted that the Tribunal refused her more time because of its doubts as to whether she was a genuine applicant for entry and stay in Australia as a student.

14. Further, that the Tribunal found that the applicant’s evidence, and circumstances, were such that she did give a satisfactory or reasonable explanation for the study gap, which the applicant said informed the Tribunal’s concerns about genuineness. The applicant submitted that the Tribunal’s response, in light of that evidence, and in the circumstances, was, therefore illogical, irrational and unreasonable.

15. In relation to this latter point some care must be taken with the applicants’ submissions before the Court. The evidence actually before the Tribunal is set out below. Before the Court, the applicants’ submissions sought to present “additional reasons” as to why the applicant’s explanation for the “study gap” was reasonable, and therefore why the Tribunal’s failure to accept these reasons was unreasonable.

16. That cohort of arguments can be illustrated with the following extract from the applicants’ written submissions ([3] of the applicant’s written submissions):

    “In the present case the visa applicant, an overseas student from the poorest country on earth, prudently awaited the outcome of her student visa application before committing resources – other than her own – to her education that would have been cut short had the appeals been unsuccessful. That she did not gamble on success proved to the tribunal that she was not genuine and that her application was a sham. It is submitted that the tribunal fell into unreasonableness, that what it did no reasonable person would have acted so unreasonably…”

17. As the Minister submitted there is an immediate and obvious difficulty with the applicants’ argument deriving from the premise on which it is based. In short, the applicants say the reasons (including the reasons now advanced before the Court) for the “study gap” were reasonable, therefore any rejection by the Tribunal of those reasons was unreasonable. I agree with the Minister that that conclusion from the applicants’ is, in itself, illogical, because it derives from the premise that any rejection of an explanation given by an applicant is, of itself, unreasonable. Questions of reasonableness, in the context of an exercise of the Tribunal’s statutory discretion, must derive from the circumstances presented, the arguments and evidence before the Tribunal, and from its actual reasons for not exercising the discretion in the applicant’s favour.

18. In submissions, the applicants made reference to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”). However, other than submitting that “the facts are not too dissimilar”, nothing further was satisfactorily explained.

19. It is not for the Court to make out the applicants’ arguments for them (also noting they are legally represented). At best, therefore, I understood the reliance on Li to be put for the purpose of supporting the proposition that in exercising a statutory discretion the Tribunal must act reasonably (Li at [25] per French CJ, [89] per Gageler J and [76] per Hayne, Kiefel and Bell JJ ).

20. The applicants’ argument, therefore, could be understood as being that the Tribunal has the power to adjourn the review. Its refusal to adjourn to allow more time for the provision of the financial documents was not reasonable as it arose from its doubts about the applicant’s “study gap” and what it said about her genuine intention to study.

21. Before the Court, the applicants’ relied on the Tribunal’s decision record for what was relevantly said. There is no evidence from the applicants as to what may otherwise have been said at the hearing.

22. It is convenient to be reminded of relevant background which is generally referred to above.

23. First, the application for the visas was made on 1 December 2010. Up until 8 May 2013 the relevant visa subclass was 572 of the Regulations. The relevant subclass became subclass 573 of the Regulations, given changes to the applicant’s circumstances (see above), with the consequence of some changes to relevant requirements for the grant of the visa. That “change” was brought about by the applicant’s actions. Her representatives were plainly aware of the consequences (CB 279).

24. Second, the hearing took place on 10 May 2013. That is, some days later. The issue raised at the hearing flowed from that change (see [17] at CB 321 and following).

25. Third, for reasons already set out above, it was not unreasonable for the Tribunal to ask the applicant to state “…her study history since coming to Australia…” ([22] at CB 321). Amongst other things the applicant said that “…[s]he stopped these studies in around March or April 2012…” ([22] at CB 321). While she completed some assignments she did not submit them “because she was stressed” ([22] at CB 321).

1. In this context the Tribunal noted that the applicant had previously submitted a COE for a course of study to commence on 8 April 2012, and the Tribunal asked her why she did not engage in study in relation to this COE. The applicant’s answer was reported as being that she did not have a student visa. The Tribunal dealt with this on the basis that at the relevant time she had another visa which did not prevent her from studying. The Tribunal noted the inconsistency between not studying (when she was not prevented from doing so) and the claimed commitment to study in Australia ([23] at CB 321 to CB 322).

2. The applicant explained her position as being that she had no (student) visa and that her migration agent advised her to wait until she had obtained such a visa ([24] at CB 322). It was consequent on this exchange that the Tribunal noted its concerns about the “study gap” and a genuine intention to study ([25] at CB 322).

3. Given the relevance of the financial capacity requirement in Sch.5A to the Regulations, the Tribunal turned to this matter ([28] at CB 322). The applicant gave evidence that she no longer relied on any of the documents which had earlier been provided to the Tribunal but sought to meet the financial capacity requirement on the basis of funds held by her cousin in Australia ([39] at CB 325).

4. The Tribunal noted a number of concerns. These included that there was no evidence that the funds had been held for at least three months prior to the making of the visa application, or, that the funds were still available. Further, that the guarantee of financial support in the applicant’s circumstances needed to be $100,000, but, the “guarantee” from the cousin was only in the amount of $65,000 ([31] at CB 323). In all, the Tribunal noted that the applicant had not provided evidence such that she could satisfy the requirement of Sch.5A of the Regulations.

5. The Tribunal offered a short adjournment to allow the applicant and her husband to discuss the Tribunal’s concerns ([33] at CB 323 to CB 324). On return, the applicant made a number of points recorded by the Tribunal at [34] – [35] (at CB 324):

   “[34] Upon resuming, the Tribunal asked the applicant whether there was anything she wished to say or any reason why the Tribunal should not make a decision that day.  The applicant responded that her cousin is ready to provide her that level of support if needed and she can have him commit to that amount if need be.  The Tribunal indicated that it did not understand why the applicant’s cousin would sign a financial guarantee for only $65,000 a week ago if he was prepared to guarantee support up to the required amount of $94,600.  The applicant responded that her cousin thought $65,000 was enough for her bachelor course.  Secondly, because he just bought a house he might have some expenses and that is why he must have had that amount of money, $65,000. 

   [35] Asked whether there was anything else she wished to say, the applicant stated that she would still like to study further.  She had a study gap but she had a daughter to look after.  Now she wants to start a new course and a new career.  The Tribunal noted that the applicant had previously studied after her baby was born in December 2010, completing a Diploma of Management in March 2011 and a Certificate IV in Business in November 2011.  The Tribunal indicated that on that basis it did not consider that the birth of her child explained why she had not studied since early 2012.  The applicant responded that she was under stress because she had no visa, because of having the baby and staying away from her family.  The Tribunal indicated that it had considered what she said but this had not alleviated the Tribunal’s concerns regarding the applicant’s significant study gap.”

6. In relation to the matter of the “study gap” there is no other evidence before the Court of what the applicant said, other than what the she is reported to have said as set out at [35] (at CB 324). The elements put forward by the applicant in this regard, therefore, were that she had to look after her baby daughter, she was under stress because she did not have a visa, and she was staying away from her family. It cannot be said that in the circumstances, it was unreasonable of the Tribunal to indicate that what she said did not alleviate its concerns ([35] at CB 324).

7. The Tribunal acknowledged the applicants’ request for an extension of time, in essence the request for an adjournment, so that the applicant could provide additional financial documents. It dealt with this as follows ([36] at CB 324):

   “In relation to the applicant’s suggestion that she could ask her cousin to commit to a higher financial guarantee, the Tribunal noted that the visa application was originally refused in February 2011 because the applicant did not meet her Schedule 5A financial capacity requirements and, on that basis, she had known for a long time why her visa application was refused and she had had a long time to arrange her financial documentation.  The Tribunal also observed that its 17 April 2013 hearing invitation went into a lot of detail about the evidence the applicant was being invited to provide in an attempt to assist her to meet her Schedule 5A financial capacity requirements.  The Tribunal had invited the applicant to provide this evidence by 3 May 2013 and she was also told in the hearing invitation that the Tribunal intended to make a decision at the end of the hearing.  The Tribunal noted that although in the hearing invitation the applicant had been invited in bold, underlined type to provide “current” evidence that she met her Schedule 5A financial capacity requirements, she had submitted a bank certificate that was more than a year old.  The Tribunal further indicated that because of its concerns regarding her study history in Australia and whether she is a genuine applicant for entry and stay as a student, the Tribunal did not wish to falsely raise her expectations of a successful outcome by granting an extension of time to provide additional financial documentation.  This was for the reason that the applicant’s study history in Australia caused the Tribunal to doubt whether she is a genuine applicant for entry and stay as a student.  On that basis, the Tribunal refused the applicant’s request for an extension of time to provide additional financial documents.”

8. A number of points, need to be noted here. First, before the Court the applicant submitted that amongst other things, the purpose of the request for the adjournment was to obtain documents from overseas.

9. On the evidence that must be rejected. The applicant has provided no evidence to the Court to support this proposition. The evidence that is relevantly before the Court is that the purpose was so that the applicant could ask her cousin “…to commit to a higher financial guarantee…” ([36] at CB 324). This was plainly consistent with the applicant’s evidence to the Tribunal (not contradicted before the Court) that she relied on her cousin in Australia to meet the financial capacity requirement, and not the financial documents from overseas ([29] at CB 323).

10. Second, as is clear from [36] (at CB 324), the matter of the “study history” in Australia and what it said about the genuineness of her staying in Australia as a student, was only one of four separate reasons for refusing the request for an adjournment.

11. Third, even if the Tribunal’s concerns about the applicant’s study gap had been the only reason for refusing the request for an adjournment, it still would not reveal that the Tribunal acted unreasonably. It cannot be said that the concern about the “study gap” and the genuineness of the applicant’s study were irrelevant to the Tribunal’s consideration as to whether to exercise the discretion to adjourn.

12. On a fair, if not plain, reading, the Tribunal understood that the relevant regulatory requirement (as set out above) made this issue a relevant consideration for the Tribunal at the time of the applicants’ making the request for the adjournment. That is, it was relevant to the question as to whether it could reach the requisite level of satisfaction such that the visas must be granted. That the Tribunal subsequently and ultimately determined the review on the basis of the financial capacity requirement, does not mean that the genuine intention requirement was not relevant to the review, as at the time of the request for the adjournment.

13. One of the reasons, therefore, that the Tribunal refused the adjournment was to not “falsely raise her expectations of a successful outcome by granting the extension of time to provide additional financial documents…” ([36] at CB 324). In essence, on a fair reading, the Tribunal was saying that even if it were to grant the extension of time, this would be an exercise in futility given its concerns about her genuineness as a student. That is, even if she had provided documents to satisfy the financial requirement, she would still not satisfy the other relevant requirement that she have a genuine intention to study in Australia. Given that “genuineness as a student” was also a relevant regulatory requirement for the grant of the visa, it cannot be said that the Tribunal’s reliance on this was unreasonable.

14. The Minister relied on Chava v Minister for Immigration and Border Protection [2014] FCA 313 per Mortimer J, especially at [69]:

    “Those matters are as follows. First, the Tribunal — tasked as it is to determine the merits of an application — clearly harboured some skepticism about whether the appellant was a genuine student at all. This seemed to be based in part on how many courses the appellant had been doing over a long period of time, without bringing the courses to a close and finding employment based on the qualifications he had obtained. So much is obvious from the portions of the transcript extracted at [58] above. The question whether the appellant was a genuine student formed part of the Tribunal’s task on review, albeit that the non-satisfaction of the criteria in cl 572.223(2)(a)(i) meant the Tribunal did not need to base its decision on this matter. Nevertheless, there is no doubt this issue could legitimately inform the Tribunal’s approach to the exercise of its powers over the continuation or finalisation of the review.”

15. The applicant submitted that the facts in Chava “seemed” to be different to the facts in the current case. It is not necessary to consider this in detail. It is the case that there are some differences in the factual matrices between the two cases.

16. However, I respectfully understand what her Honour said in Chava at [69] to be relevant direction in the current case because the concluding proposition there, on which the Minister now relies, derives from facts that are similar to the current circumstances. That is, the Tribunal there, “harboured scepticism” about whether the applicant was a genuine student. As set out above that is also a relevant consideration in the current case given the regulatory requirement referred to above. The Tribunal in Chava did not need to base its ultimate decision on this given its finding as to the applicable financial regulations. Nonetheless, any such conclusion, given the relevant regulatory context, could still inform the Tribunal’s approach to the exercise of its powers, including whether to adjourn the review. This is also the situation in the current case

17. Ultimately, the true character of the applicants’ ground, complaints and submissions were simply revealed in closing submissions before the Court. The applicants put to the Court that the applicant had interrupted her studies because she had no visa, and it was open to the Tribunal to “be a little more generous in its thinking towards her…”.

18. That may or may not be the case. However, it does not argue, let alone reveal, that what the Tribunal did in the circumstances was unreasonable, having regard to what was said in Li and Chava. A different Tribunal member may have acted differently. However, in the current case, it was reasonably open to the Tribunal, in the circumstances, and for the reasons it gave, to proceed in the fashion it did. In the end, the applicants are seeking to express their grievance with the Tribunal’s refusal to adjourn the review and the factual findings that informed that refusal. In short they seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Conclusion

1. The sole ground of the application, as explained, and ultimately understood, does not reveal jurisdictional error in the Tribunal’s decision. The application should be dismissed. I will make an order accordingly.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 28 November 2014