Rai v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 305
•11 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 305
File number: SYG 134 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 11 April 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision to cancel the applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal asked irrelevant questions – whether the Tribunal failed to consider or misunderstood aspects of applicant’s evidence – whether the Tribunal member demonstrated actual bias – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 48, 116, 140, 359, 476, 477
Migration Regulations 1994 (Cth) Sch 8, condition 8202
Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Hamor v Commonwealth [2020] FCA 1748
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102; [2003] FCA 872
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of hearing: 3 April 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Warren Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 134 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIKRAM RAI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
11 APRIL 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant held a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa which was cancelled by a delegate of the Minister because the applicant was not enrolled in a course of a study for a period of approximately one year and therefore breached one of the conditions of his visa. The Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision and the applicant seeks judicial review of the Tribunal decision by way of an application filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant asserts that the Tribunal decision is affected by jurisdictional error because the Tribunal denied him procedural fairness, misinterpreted relevant facts and asked irrelevant questions.
For the reasons explained below, the applicant has not established that the Tribunal made any jurisdictional error in reaching its decision in this matter. The application for judicial review is therefore dismissed.
RELEVANT BACKGROUND AND VISA CANCELLATION DECISION
The applicant is a citizen of Nepal who entered Australia as the holder of a student visa in July 2008. The applicant completed a Bachelor of Business (Accounting) in 2011 and was subsequently granted a graduate skilled visa.
The applicant then enrolled in a Diploma of Business and was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (visa) on 12 June 2015.
On 10 November 2016 the Minister’s Department sent to the applicant a notice of intention to consider cancellation of his visa. The notice advised the applicant that it appeared that there was a ground for cancellation of his visa pursuant to s 116(1)(b) of the Migration Act, namely that he had not complied with a condition of the visa. The notice advised that it had come to the Department’s attention that the applicant may not have complied with condition 8202 in Sch 8 to the Migration Regulations 1994 (Cth) (Regulations), specifically paragraph 8202(2)(a), which required that the applicant be enrolled in a registered course. The applicant was given an opportunity to respond to the notice in writing within five working days of when he was deemed to have received the notice, which, as the notice was sent by post, was seven working days after the date of the notice.
The applicant requested an extension of time to respond to the notice and was given an additional five working days to respond to the notice. On 24 November 2016 the applicant sent an email to the Department attaching a submission in response to the notice of intention to consider cancelling his visa.
On 5 December 2016 a delegate of the Minister cancelled the applicant’s visa. The delegate was satisfied that a ground for cancellation under s 116(1)(b) of the Migration Act existed on the basis that the applicant breached condition 8202 because he had not been enrolled to study from 9 November 2015 and 26 November 2016. The delegate exercised the discretion to cancel the applicant’s visa, finding that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.
The applicant applied to the Tribunal for a review of the delegate’s decision on 13 December 2016.
On 4 October 2018 the Tribunal sent to the applicant an invitation to attend a hearing on 5 November 2018. The applicant provided a written statement to the Tribunal on 1 November 2018 and attended the hearing on 5 November 2018 to give evidence and present arguments.
On 17 December 2018 the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
SUMMARY OF TRIBUNAL DECISION
The Tribunal identified that the issue for its consideration was whether a ground for cancellation arose on the basis that the applicant breached condition 8202, and if so, whether his visa should be cancelled.
The Tribunal found that the applicant was not enrolled in a registered course for more than 12 months, from 9 November 2015 to 26 November 2016, which was not disputed by the applicant. The Tribunal accordingly found that the applicant had not complied with condition 8202(2).
The Tribunal then considered the discretion to cancel the visa and, in so doing, recognised that there was no specific direction in the Migration Act or in the Regulations which must be followed in the exercise of the discretion. The Tribunal took into account the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers,’ among other matters.
The Tribunal made the following findings in relation to the matters raised in PAM 3.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia: The Tribunal was satisfied that the applicant’s original intention to travel to Australia was for study. The Tribunal considered the applicant’s evidence that after completing his Bachelor’s degree, he was granted a graduate visa but was unable to find a job, and then enrolled in a Diploma of Business but was unable to continue due to financial issues. The Tribunal considered the applicant’s evidence given in 2016 that he wished to return to Nepal and work in banking and finance and the evidence given in 2018 that he was considering opening a furniture business, but was not satisfied that the applicant had provided satisfactory reasons for wanting to undertake an additional Diploma course. The Tribunal found that the applicant had not demonstrated a powerful or convincing reason for staying in Australia, and it was not satisfied that he had a compelling need to remain in Australia.
The extent of compliance with visa conditions: The Tribunal noted that there was no evidence before it that the applicant had not complied with other visa conditions and gave this some weight in the applicant’s favour.
Degree of hardship that may be caused: The Tribunal considered the applicant’s evidence that he would face financial hardship if his visa was cancelled because he would be unable to pay his debts and assist his family who had suffered financially after the 2015 earthquake in Nepal. The Tribunal accepted that the cancellation of the applicant’s visa may result in some financial hardship and afforded some weight in the applicant’s favour on these grounds.
Circumstances in which the ground of cancellation arose: The Tribunal was not satisfied that the circumstances in which the grounds for cancellation emerged were beyond the applicant’s control. The applicant did not provide independent evidence of the impact of the 2015 Nepal earthquake upon him or his family. The Tribunal found that the applicant did not provide an adequate explanation for his activities over the 12 months during which he was not enrolled to study. The Tribunal did not place any weight in the applicant’s favour on the circumstances that led to the cancellation of the visa.
Past and present behaviour of the visa holder towards the Department: The Tribunal gave some weight to the fact that there was no evidence that the applicant had failed to cooperate with the Department.
Whether there would be consequential cancellations under s 140: The Tribunal was satisfied there was no evidence that there would be any consequential cancellations under s 140 of the Migration Act.
Whether there are mandatory legal consequences of cancellation: The Tribunal found that the cancellation of the visa would mean that the applicant could potentially become an unlawful non-citizen. The Tribunal found that the applicant would also be subject to s 48 of the Migration Act which would limit his options for applying for a visa and that in the future he would have to satisfy the Public Interest Criterion 4013 which may prevent him from being granted a visa for up to three years. Nevertheless, the Tribunal found that those were the intended consequences of the legislation and were not sufficient reasons for the applicant’s visa not to be cancelled.
Whether any international obligations would be breached as a result of the cancellation: The Tribunal found that there was no evidence that cancelling the applicant’s visa would result in Australia breaching any international obligations.
Any other relevant matters: The Tribunal considered the applicant’s claim that he had developed a gambling problem over the past two years. The Tribunal declined to grant the applicant an adjournment to enable the applicant to attend a counselling session that was scheduled for the Friday following the hearing. The Tribunal noted that the applicant had not provided independent evidence to demonstrate that he had a gambling problem. In the absence of evidence, the Tribunal did not place any weight in the applicant’s favour on this claim.
The Tribunal concluded that a ground for cancellation in s 116(1) of the Migration Act existed, and considering all the relevant circumstances, the Tribunal was satisfied that the visa should be cancelled.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 21 January 2019 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant raises the following grounds in his application (reproduced without alteration):
1.The Administrative Appeal Tribunal erred in failing to afford procedural fairness to the Applicant in its questioning of the applicant during the Tribunal hearing .The applicant claims that he was denied procedural fairness and natural justice when the AAT made decision on limited information -materials .
2.Particulars :
3.The AAT asked whether the qualifications already obtained in Australia would be suficiet for him to return to Nepal , the applicant as a truthfull witness said he did notknow what the situation was like in the country as he has not been back for ten years.
4.The AAT did not account the effect of a disasterious earthquake of Nepal in 2015. Thousands of people killed and all infrastructur of Nepal were destroyed . The AAT failed to use new information with regards to the applicant’s financial difficulties caused by the earthquake.
5.The applicant explained the reasons of changing course of Study according to the changed circumstances caused by the earthquake .
6.The applicant claims that he did not get financial support from Nepal due to disasterious effect of earthquake on his family’s income and due to that reason he failed to pay the required fee for enrolment in a new course ..
7.The applicant claims the AAT did not use his discretionary power to make the decision in favour of the applicant .The applicant always followed Immigration rules. He came to study in Australia and completed his course within time. He could not afford to pay for the enrolled course for the period of 9 November 2015 to 26Novemebr 2016 because of financial hardship cause by the earthquake .He said to the Tribunal that he did not pay-off the loans they have taken out for the purpose of study . He cannot get loan again from Napali Bank because he failed to epay the loans to them ..
8.The applicant claims the AAT mistook the facts and intentionally asked irrellavant questions to confuse the applicant. The AAT did not follow the hearing Rule according s 424 of the Migration Rule ..
9.Particulars :The AAT asked several irrelevant questions related to gambling problems and the counselling by the Wesley Mission . As a truthfull witness the applicant told the truth the he wanted help but could not get right help from the right person . cannot The applicant claims that he was very much confused .He did not dispute that he had not been enrolled for more than 12 months from 9 November 2015 to 26 Novemebr 2016 because he encountered financial difficulties He said to the Tribunal his study was hampered by several reason including his own health and family’s sufferings in Nepal due to earthquake. Applicant claims the AAT totally discard the family’s current circumstances and effect of natural disaster in Nepal. He did not use discretionary power to make the decision. The AA T failed to assess the effect of Visa cancellation on his future
10.The applicant claims that the Tribunal made decision with the closed mind. The Tribunal made unreasonable allegation on the applicant that the purpose for extension of Student visa was only stay for long in Australia .
11.The applicant claims that he paid course fees for all of courses and he fulfilled all of Student Visa condition in the past . He never broke the Immigration Rules and has clear criminal records in Australia . He wanted to complete this new course and wanted to set up a new business with knowledge he acquired at Australian Institutions.
12.The applicant claims he was denied natural justice when his attention was diverted on several irrelevant issues on which has applicant has nothing to do or no link the real issue of student Visa .
It can be seen from this that there are two main grounds, each with a number of particulars. In this judgment:
(a)I will refer to the paragraph numbered 1 in the application as ground 1 and I will treat paragraphs 3 to 7 in the application as being particulars to ground 1; and
(b)I will refer to the paragraph numbered 8 in the application as ground 2 and I will treat paragraphs 9 to 12 of the application as being particulars to ground 2.
Pursuant to an Order made by a Registrar of this Court on 25 September 2023, the applicant was to file and serve written submissions and any amended application or further evidence 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions in accordance with the Order made by the Registrar.
The applicant made oral submissions at the hearing, but they were not directed to the grounds in his application. I briefly address the matters raised by the applicant in his oral submissions in the consideration of his application below.
CONSIDERATION OF THE APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal’s decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272.
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was most recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise that authority by statute…
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
Issues raised by the applicant at the hearing
The applicant did not advance detailed oral submissions at the hearing and it appears that he is simply hoping that the Court will reach a different conclusion to the Tribunal. As indicated above, and as I explained to the applicant at the hearing, the Court does not have any jurisdiction to review the factual merits of the Tribunal decision and cannot decide for itself whether the applicant’s visa should have been cancelled.
When asked what legal error he believes the Tribunal made, the applicant submitted that the cancellation decision was made very quickly and he was not given sufficient time. I clarified with him whether he was referring to the delegate’s decision to cancel his visa or the Tribunal decision affirming the delegate’s decision and the applicant confirmed that he was referring to the delegate’s decision.
The Court does not have any jurisdiction to review the delegate’s decision. That is because the delegate’s decision is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act because it is a decision that is reviewable by the Tribunal under Part 5 of the Migration Act. The Court does not have jurisdiction to review primary decisions: s 476(2)(a) of the Migration Act.
In any event, the Tribunal conducted merits review of the delegate’s decision and, in the course of that process, the applicant had an opportunity to provide further information to the Tribunal. The applicant’s application for review was listed for hearing over 22 months after it was filed and almost two years after the applicant was sent the notice of intention to consider cancelling his visa. The applicant was notified of the hearing listed on 5 November 2018 by way of an invitation sent by email on 4 October 2018. There is no suggestion, and nor would there be any reasonable basis for finding, that the applicant did not have sufficient time to consider what he wished to say to the Tribunal as to why his visa should not be cancelled.
Ground 1: The applicant’s assertion that the Tribunal did not afford him procedural fairness
By ground 1, the applicant alleges that the Tribunal denied him procedural fairness:
(a)in its questioning of him at the hearing; and
(b)by making a decision on limited information.
There is no transcript of the Tribunal hearing in evidence before the Court. Accordingly, while I have access to the documentary evidence that was before the Tribunal, the only evidence I have before me of the applicant’s oral evidence to the Tribunal or the Tribunal’s questioning of the applicant is the description of the evidence given by the applicant as set out in the Tribunal’s reasons.
The applicant did not make any submissions at the hearing in relation to the error alleged by ground 1. The particulars to this ground, as set out in the application, provide some further explanation of the jurisdictional error alleged by the applicant.
The only particular that refers to the Tribunal’s questioning of the applicant at the hearing is the particular in paragraph 3, which suggests that the Tribunal asked the applicant whether the qualifications he already obtained in Australia would be sufficient for him to return to Nepal. It is unclear from the applicant’s ground and particulars why he believes the Tribunal’s questioning of him about this issue gives rise to a denial of procedural fairness.
The Tribunal referred to this questioning and the response given by the applicant at [10] of its reasons, as part of its summary of the evidence given by the applicant at the hearing. The Tribunal relevantly recorded:
He was asked whether the qualifications already obtained in Australia would be sufficient for him to return to Nepal and he said he did not know what the situation was like in the country as he has not been back for 10 years.
The Tribunal further considered this evidence in considering whether to exercise its discretion to cancel the applicant’s visa. It is apparent from the Tribunal’s reasons that the Tribunal considered this evidence to be relevant to the consideration of the purpose of the applicant’s travel and stay in Australia and whether he had a compelling need to travel to or remain in Australia. The Tribunal said at [21] and [22] of its reasons (emphasis added):
21.The applicant advised that following his Bachelor degree, he was granted a graduate visa in Australia but was unable to find a job during that period. He enrolled in a Diploma of Business, however; he was unable to continue due to financial issues. The applicant said in a written statement to the Department dated 21 November 2016 that he wanted to return to Nepal and work in banking and finance. He gave evidence to the Tribunal that he is now considering opening a furniture business. In either case, the applicant did not provide satisfactory reasons for wanting to undertake an additional Diploma course. When asked why his degree qualifications from Australia would not be sufficient, the applicant said he did not know what the situation was like in Nepal as he had not been back for 10 years.
22.It does not appear that the applicant has clear plans for the future or specific reasons for wanting to continue studying. The Tribunal considers the applicant has not demonstrated a powerful or convincing reason for staying in Australia and is not satisfied the applicant has a compelling need to remain.
I accept the Minister’s submission that there is nothing in the Tribunal’s reasons to demonstrate that the Tribunal denied the applicant procedural fairness in its questioning of him in relation to this issue. It is part of the Tribunal’s fact-finding function to ask questions of the applicant about matters that it considers are relevant to the issues to be determined on the review. The Tribunal apparently considered that information as to whether the qualifications the applicant already obtained in Australia would be sufficient to meet his objectives in Nepal was relevant to its consideration of the applicant’s purpose for remaining in Australia and whether he had a compelling need to stay. This in turn was relevant to the exercise of its discretion to cancel (or not to cancel) the applicant’s visa. There is no basis for finding that the questions asked by the Tribunal were not relevant to the issues it was required to determine. There is nothing to suggest that the questions were asked of the applicant in any unfair manner and the Tribunal had regard to the applicant’s responses. The applicant has not established that he was denied procedural fairness based on the questioning of him by the Tribunal.
Insofar as ground 1 asserts that the Tribunal denied the applicant procedural fairness by making a decision based on limited information, the particulars to this ground, as set out in the application, focus on the earthquake that occurred in Nepal in 2015 and the consequential financial difficulties faced by the applicant and the impact of those difficulties on his study.
The Tribunal had regard to the applicant’s evidence in relation to the earthquake and its impact on him. The Tribunal summarised the evidence given by the applicant in relation to the earthquake and its impact at [7], [9], [11] and [12] of its reasons.
The applicant asserted several times in his evidence that the earthquake had financial impacts on him and his family. The Tribunal considered this at [24] of its reasons in assessing the degree of hardship that may be caused if the applicant’s visa was cancelled, including the applicant’s evidence that his family in Nepal would face hardship because they lost income due to the earthquake, that the applicant was the sole support for his family and without a good job in Nepal he would not be able to pay his debts, that he would face financial hardship if his visa was cancelled and that he needed to send money back to Nepal to support his parents. The Tribunal accepted that the applicant may face a degree of financial hardship if his visa was cancelled and that he would not be able to work or study in Australia and would have to return to Nepal. The Tribunal afforded some weight in the applicant’s favour to these considerations: see [26] of the Tribunal’s reasons.
The Tribunal also had regard to the applicant’s evidence in relation to the earthquake and its impact on him in considering whether the circumstances in which the ground for cancellation of the applicant’s visa arose were beyond the applicant’s control. In this regard, the Tribunal said at [28]-[30] of its reasons:
28.According to the applicant’s evidence at the hearing, the grounds for cancellation arose because his finances had been adversely affected by the 2015 earthquake in Nepal. He stated his education provider sent warning letters requesting payment of fees but he had been unable to meet his obligations. The applicant said he had obtained an education loan in Nepal and the requirement to repay it meant he could not afford his course fees. The applicant said he did not return to his home country because he had to repay the loan and at the time, conditions in Nepal were not good.
29.The applicant did not provide a satisfactory explanation for his activities over the 12 month period when he was not enrolled to study. The applicant’s evidence suggested his visa had been cancelled upon his enrolment being cancelled but this was not the case. The Department did not take action for a full year and it appears the applicant did not make contact with them during that time, or seek advice about his adverse financial situation. The Tribunal considers it likely the applicant was working during the relevant period in order to pay his debts and living expenses, as well as helping his family in Nepal. While the Tribunal sympathises with the applicant regarding the 2015 earthquake in his home country, it is the responsibility of Student Visa holders to ensure they have the financial means to continue their studies. It was open to the applicant at the time to return to Nepal and assist his family from there. At the time he had already achieved a tertiary qualification which would have been a benefit to him in future.
30.The Tribunal does not accept that the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. He did not provide independent evidence of the impact of the Nepal earthquake upon him or his family, or how it directly affected his ability to study. Having considered the evidence available, the Tribunal does not place any weight in the applicant’s favour on the circumstances that led to the cancellation of his visa.
To the extent that the particulars of ground 1, specifically paragraph 5 of the application, refer to the change in the applicant’s study and the reasons for that, I have primarily understood his ground as relating to the financial impact of the earthquake, which, according to the applicant, led to him being unable to pay his course fees and which, in turn, led to him ceasing to be enrolled in a course of study. Understood in that way, the applicant’s evidence was clearly considered by the Tribunal at [28]-[30] of its reasons, as can be seen from the extract of those paragraphs above.
The Minister also addressed the reference in the particulars to the reasons for the change in the applicant’s study as relating to his reasons for wishing to undertake further study. Understood in this way, I accept the Minister’s submission that the Tribunal considered the applicant’s evidence about his reasons for wishing to undertake further study, summarising the evidence at [12] of its reasons and considering the evidence at [21] before expressing its lack of satisfaction that the applicant had any clear plans for the future (see [21] and [22] of the Tribunal’s reasons, extracted at [42] above).
I am satisfied that the Tribunal considered the applicant’s evidence based on the impact of the earthquake on his financial situation and studies. The applicant has not identified any further relevant evidence that was before the Tribunal and which the Tribunal failed to consider. There is no basis for the applicant’s assertion that the Tribunal made its decision based on limited information.
Ground 1 is not established.
Ground 2: The applicant’s assertion that the Tribunal mistook the facts and asked irrelevant questions
Ground 2 and its particulars raise the following three issues:
(a)whether the Tribunal intentionally asked the applicant irrelevant questions to confuse him, particularly in relation to his gambling problem;
(b)whether the Tribunal failed to consider (or ‘discarded’, to use the applicant’s language) his family circumstances, the impact of the earthquake in Nepal and the effect of the cancellation on the applicant’s future or ‘mistook facts’; and
(c)whether the Tribunal decision was affected by bias.
I address each of these in turn.
In considering the questions asked of the applicant by the Tribunal, it is again relevant to note that there is no transcript of the Tribunal hearing in evidence before the Court. I can therefore only assess the applicant’s ground based on the record of the questions asked and evidence given at the hearing summarised in the Tribunal’s reasons for decision.
In considering the relevance of any questions asked by the Tribunal of the applicant in relation to his gambling, it is important to note that the issue of gambling was first raised by the applicant himself. In the written statement that the applicant provided to the Tribunal on 1 November 2018, the applicant said:
6.Due to cancellation of my visa, I have been facing mental health issues. As a result, I have been addicted to gambling. I have been addicted to Poker. I am unable to save my funds for tuition fee and therefore, I am unable to request for a COE to education provider.
7.I am now aware of the issue. I have booked a meeting with my counsellor to help me on this issue. Therefore, please allow some time to provide further documents.
The Tribunal summarised the oral evidence given by the applicant at the hearing at [12] and [13] of its reasons, where it said:
12.… The applicant was then referred to his written submission in which he stated he had a gambling problem. He said this had occurred over the last two years and he had tried many times to book a counselling session to get help but was scared. According to the applicant he called a gambling helpline but had not taken up any referral. However, he said he had booked a session with Wesley Mission for the coming Friday. The applicant requested time to attend the counselling session as he had never been before but the Tribunal reminded him the visa had been cancelled nearly two years previously and denied his request. The applicant again said he had tried “many times” to seek help but he was scared. The Tribunal told the applicant it appeared he had now arranged counselling because his hearing was scheduled. The applicant denied this was the case but did not explain what else had changed so that he was now able to seek help, except to say he was not ready for it before.
13.The applicant said he is staying with a friend because he used up his income and the friend convinced him to try and get another chance. He said he had been lonely and spent his time gambling as a result. He said he had heard good things about counselling and wanted to see if it would help. When asked about having contacted a gambling helpline the applicant said they had told him not to worry, to be patient, not to think too much about the problem and to stay positive…
The Tribunal then considered the applicant’s evidence about his gambling problem in exercising its discretion to cancel his visa. The Tribunal had regard to the applicant’s oral evidence about his gambling problem in considering the degree of hardship that may be caused if the applicant’s visa was cancelled. The Tribunal observed at [25] that the applicant did not provide any independent evidence of a gambling problem in support of his claims. The Tribunal again considered the applicant’s gambling problem in considering whether there were ‘any other relevant matters’ and said at [36]-[37]:
36.The applicant gave evidence about a gambling problem that he claimed had developed in the last two years. According to the applicant he is currently living with a friend as he has lost income because of this issue. The applicant’s oral evidence was that he considered seeking counselling for his gambling but at the time of the hearing had not pursued any avenues for help. The applicant sought time to attend a counselling session that he said was scheduled for the Friday following the hearing. The Tribunal did not agree to a postponement of the matter because the applicant had the previous two years to address his alleged addiction to gambling. The applicant said he had called a gambling helpline at some point but became somewhat vague when asked about the advice he received. He said he had not followed up any assistance because he was scared. However, apart from saying he had not been ready to receive help before; the applicant did not explain what had recently changed so that he was able to schedule a counselling session after the Tribunal hearing. The Tribunal was of the view the applicant was motivated to attend a counselling session because of his upcoming hearing rather than for genuine reasons.
37.As stated, the applicant did not provide independent evidence of a gambling problem such as bank statements or other information about his financial situation and in the absence of such evidence, the Tribunal places no weight in the applicants favour on this claim. In addition, the applicant said he developed the problem in the last two years, after his visa was cancelled and therefore the alleged gambling problem was not a factor in the cancellation of the applicant’s student visa.
The applicant’s assertion that the Tribunal intentionally asked irrelevant questions about the applicant’s gambling to confuse him cannot be sustained. There is no evidence before the Court to support the applicant’s assertion that the questions confused him and certainly nothing to suggest that the Tribunal’s questioning of him impeded his ability to effectively participate in the hearing in such a way as to suggest that the invitation to attend a hearing, issued to him pursuant to s 359 of the Migration Act, was not a real and meaningful one.
I accept the Minister’s submission that the questions about the applicant’s gambling were not irrelevant in circumstances where the applicant himself raised the issue of his gambling addiction as part of the reasons why he believed the Tribunal should not exercise its discretion to cancel his visa. As the Minister submitted, a matter will only be an irrelevant consideration if it is one that, either expressly or by implication, the Tribunal was prohibited from taking into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40 at [15] (Mason J). The discretion to cancel a visa under s 116 of the Migration Act is a broad one and it is not expressly or impliedly prohibited by statute for the Tribunal to take into account a matter that an applicant raises as to why his or her visa should not be cancelled.
The Tribunal’s questioning of the applicant about his gambling does not amount to jurisdictional error.
I then turn to consider whether the Tribunal failed to consider, or misunderstood, aspects of the applicant’s evidence. Simply making an error of fact, without more, would not ordinarily amount to jurisdictional error. In any event, the applicant has not articulated which facts the Tribunal misunderstood. Rather, the applicant’s particulars appeared to refer to a number of facts and it appears from the applicant’s ground that the applicant is implicitly suggesting that the facts referred to should have caused the Tribunal to make a different decision and not cancel his visa.
The various facts referred to by the applicant were all considered by the Tribunal in the exercise of its discretion. Specifically:
(a)The Tribunal considered the applicant’s claims that his study was hampered by his family situation and the Nepal earthquake in considering the circumstances in which the ground for cancelling his visa arose and in considering the degree of hardship that may be caused by the cancellation of his visa. The Tribunal accepted at [26] that the applicant may face a degree of financial hardship if his visa was cancelled and that finding took into account the applicant’s evidence about the need to support his family and the financial impact of the earthquake on him and his family. While the Tribunal considered the applicant’s evidence about the financial impact of the earthquake, it did not accept that the circumstances in which the ground for cancellation of the applicant’s visa arose were beyond his control. This was in part because the Tribunal considered that the applicant had most likely been working during the period in which he was not studying and because it is the responsibility of student visa holders to ensure they have the financial means to continue their studies: see [29] of the Tribunal’s reasons.
(b)The Tribunal took into account the effect of the visa cancellation on the applicant’s future, accepting that if the applicant’s visa was cancelled, he would be unable to work or study in Australia and would need to return to Nepal: Tribunal’s reasons at [26]. The Tribunal also took into account the legal consequences of a decision to cancel the applicant’s visa at [33] of its reasons.
(c)Insofar as the applicant refers, at paragraph 11 of his application, to his desire to complete his new course and set up a new business with the knowledge he acquired at Australian institutions, the Tribunal took into account the applicant’s evidence given to the Department in 2016 that he wanted to return to Nepal and work in banking and finance and his more recent evidence that he may consider opening a furniture business: Tribunal’s reasons at [21]. However, the Tribunal was not satisfied that the applicant had demonstrated a powerful or convincing reason for staying in Australia to meet these goals and considered that he had not provided satisfactory reasons for wanting to undertake an additional diploma course when he already had a Bachelor’s degree: Tribunal’s reasons at [21]-[22].
(d)The Tribunal acknowledged at [23] that there was no evidence the applicant had not complied with other visa conditions and gave that factor some weight in the applicant’s favour. The Tribunal also acknowledged that there was nothing before it to indicate that the applicant had not cooperated with the Department and gave that some weight in the exercise of its discretion: Tribunal’s reasons at [31].
In paragraph 9 of his application, one of the matters that the applicant said he told the Tribunal was that his study was hampered by his own health. To the extent that this was raised in the context of the applicant’s gambling addiction, it was considered by the Tribunal and I have referred above to the Tribunal’s consideration of the applicant’s gambling addiction. I am unable to locate any reference to other health issues in the court book and I am unable to find any evidence that the applicant claimed to the Tribunal that the reason he was not enrolled in a course was because of health issues. Rather, the applicant repeatedly maintained that he was not enrolled in a course because he was unable to pay the course enrolment fee. The Tribunal cannot be expected to consider the impact of the applicant’s health on his ability to study in circumstances where the applicant did not raise that issue before the Tribunal.
I am satisfied that the Tribunal considered all the matters it was required to consider and made findings that were open to it on the evidence before it. The weight that the Tribunal gave to the various considerations was a matter for it in the exercise of its discretion. No jurisdictional error is established based on the applicant’s assertion that the Tribunal discarded or failed to consider various matters.
The applicant’s assertion in paragraph 10 of his application that the Tribunal made its decision with a ‘closed mind’ amounts to an allegation of actual bias on the part of the Tribunal. As I explained to the applicant at the hearing, an allegation of bias is a serious allegation which must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. The applicant declined to make any submissions or say anything further about his allegation of bias.
I am not satisfied that any claim of bias on the part of the Tribunal is established. I accept the Minister’s submission that there is no evidence before the Court to show that the Tribunal had a pre-existing state of mind which enabled it from undertaking, or made it unwilling to undertake, a proper assessment of his case, as would be required for the applicant to establish a claim of actual bias: Jia Legeng at [35], [72]. Bias can seldom be established from the Tribunal’s reasons alone: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102; [2003] FCA 872 at [21]; Hamor v Commonwealth [2020] FCA 1748 at [50]; Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [47]. I accept the Minister’s submission that no inference of bias or pre-judgement should be inferred simply from the fact that the Tribunal made findings adverse to the applicant in the present case.
None of the errors asserted by the applicant in ground 2 establish jurisdictional error.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review made to this Court must therefore be dismissed.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 April 2024
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