FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 4
ORDERS
MLG 291 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GOVARTHAN RAJMOHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
1.The originating application filed 15 February 2017 be 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 LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, Mr Govarthan Rajmohan (“Mr Rajmohan”), in the Melbourne Registry of the Court on 15 February 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 16 January 2017. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to cancel Mr Rajmohan’s Higher Education Sector (Class TU) (Subclass 573) visa (“Higher Education Visa”).
The relevant litigation history of this matter prior to a hearing listed on 19 October 2021 has largely been set out by this Court in the Reasons for Judgment in Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 (“Rajmohan”) at [2] per Judge Lucev. As is evident from Rajmohan, the matter languished in the Melbourne Registry of this Court, through no fault of the parties, from February 2015 until June 2021. In June 2021 the matter was re-allocated to the Perth Registry of this Court for hearing by a Perth-based Judge of the Court. The matter was initially listed for final hearing on 16 July 2021 before the Court as presently constituted, but following an adjournment application by Mr Rajmohan the final hearing was adjourned to 19 October 2021 for reasons set out in Rajmohan at [7]-[24] per Judge Lucev. The listed final hearing proceeded on 19 October 2021 and the Court reserved judgment.
In the course of preparing its Reasons for Judgment, the Court came to the view that there may be an issue with respect to the conduct of the Tribunal hearing on 14 October 2016 (“Tribunal Hearing”) that necessitated giving the parties an opportunity to provide evidence and further submissions concerning that issue, which was respect to the provision of financial documentation to the Tribunal by Mr Rajmohan. There was, therefore, a further directions hearing on 21 January 2022 at which the Court made orders in the following terms:
1. With regard solely to the conduct of the Tribunal hearing:
(a)the Applicant file and serve any affidavits in relation thereto by 18 February 2022;
(b) the First Respondent file and serve any affidavits in relation thereto by 11 March 2022;
(c) the Applicant file and serve an outline of submissions in relation thereto by 1 April 2022;
(d) the First Respondent file and serve an outline of submissions in relation thereto by 22 April 2022.
2. The matter be listed for hearing with regard solely to the conduct of the Tribunal hearing on 5 May 2022 at 10.00 am AWST / 12.00 pm AEST before Judge Lucev via videolink with parties having leave at hearing to cross-examine on any affidavits filed.
3. The matter be removed from the lists of matters reserved for judgment.
4. The costs of today be reserved.
The Court adopted the approach in [3] above having regard to the judgment of the Full Court of the Federal Court in SZRUR v Minister for Immigration and Border Protection and Anor [2013] FCAFC 146; (2013) 216 FCR 445; (2013) 305 ALR 557; (2013) 138 ALD 46 (“SZRUR”), in which an appeal was allowed against a judgment of this Court (then styled the Federal Circuit Court of Australia), with the Full Court of the Federal Court holding that an unrepresented asylum seeker with no English language ability and no knowledge of the legal system had been denied procedural fairness because of the failure of the Court to explain the need for sworn evidence or to explain the kinds of issues that arise and needed to be addressed to make out an allegation of fraud. The Court, in preparing Reasons for Judgment following the hearing on 19 October 2021, came to the view that it may not have afforded Mr Rajmohan procedural fairness in the manner prescribed by SZRUR, in relation to issues raised with respect to the conduct of the Tribunal Hearing, and therefore listed the matter for a further directions hearing on 21 January 2022, made the orders as set out at [3] above, and listed the matter for a resumed final hearing on 5 May 2022. The resumed final hearing proceeded on 5 May 2022, and the Court once again reserved judgment.
BACKGROUND
The relevant background prior to the Tribunal Decision is as follows:
(a)on 5 February 2014 Mr Rajmohan was granted a Higher Education Visa: CB 11-12;
(b)section 41(1) of the Migration Act provides for the imposition of conditions on visas and reg 2.05(1) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) provides that visa conditions are to be specified with respect to each visa subclass in Sch 2 to the Migration Regulations;
(c)since the date of the grant of the Higher Education Visa to Mr Rajmohan, subclass 573 visas have been repealed. At the time the Higher Education Visa was granted, cl 573.6 of Sch 2 to the Migration Regulations set out the conditions to which the holder of a subclass 573 visa was subject. Relevant to this case, at the time that Mr Rajmohan's Higher Education Visa was granted, clause 573.611(1)(a) provided that a subclass 573 visa was subject to condition 8202 of Sch 8 to the Migration Regulations (“Condition 8202”). Pursuant to the definition of “condition” in reg 1.03 of the Migration Regulations, the visa conditions specified in Sch 2 to the Migration Regulations are further detailed in Sch 8 to the Migration Regulations;
(d)on 1 March 2016 Mr Rajmohan was issued with a Notice of Intention to Consider Cancellation (“NOICC”) of his Higher Education Visa on the basis that information obtained from the Provider Registration and International Student Management System (“PRISMS”) indicated that he had not been enrolled in a registered course of study since 1 July 2015: CB 1-4. The NOICC included an invitation to Mr Rajmohan to provide comment at an interview scheduled the following day: CB 3;
(e)on 2 March 2016 Mr Rajmohan attended the scheduled interview. At the interview, it was indicated by Mr Rajmohan that:
(i)his Confirmation of Enrolment (“COE”) had been cancelled because he was unemployed and his parents had not been able to send him money to pay the fees;
(ii)he had intended to recommence his studies at the beginning of the next semester on 13 March 2016; and
(iii)he “did not consider not having a COE to be a big problem” and he “did not understand that not having a COE would result in cancellation of the visa”: CB 12;
(f)on the same day (2 March 2016), the Higher Education Visa was cancelled by the Delegate under s 116(1)(b) of the Migration Act, on the basis that:
(i)Mr Rajmohan had breached Condition 8202 by failing to maintain enrolment in a registered course of study; and
(ii)the grounds for cancelling the Higher Education Visa outweighed the grounds for not cancelling the Higher Education Visa: CB 12-25;
(g)on 7 March 2016 Mr Rajmohan applied to the Tribunal for review of the Delegate’s Decision: CB 27-37, and provided:
(i)a copy of the Delegate’s Decision: CB 38-54;
(ii)a copy of his related Bridging visa E decision: CB 55-60;
(iii)a copy of the personal identification and details page of his passport: CB 61; and
(iv)various other supporting documents: CB 62-79, including copies of what appears to be a debit card transaction statement (“Debit Card Statement”): CB 62-67;
(h)by letter dated 27 September 2016 Mr Rajmohan was invited to the Tribunal Hearing scheduled for 14 October 2016: CB 85-87;
(i)on 14 October 2016 Mr Rajmohan appeared at the Tribunal Hearing: CB 90-92, and provided:
(i)various medical documents dated between 2012 and 2016 relating to his parents: CB 93-107; and
(ii)an academic transcript from La Trobe University dated 10 October 2016, showing units undertaken in a Diploma of Health Sciences in 2014: CB 109; and
(j)on 16 January 2017 the Tribunal Decision was to affirm the Delegate’s Decision: CB 112-120.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)noted that the issue for determination was whether Mr Rajmohan was in breach of Condition 8202 because he was not enrolled in a registered course and whether his Higher Education Visa should be cancelled, should it make the finding that he had breached Condition 8202: CB 113 at [2];
(b)at the outset observed that the Department file contained a non-disclosure certificate issued under s 375A of the Migration Act (“Section 375A Certificate”) covering Integrated Client Services Environment (“ICSE”) system records related to Mr Rajmohan. The documents were certified as being those for which disclosure would be contrary to the public interest, by reason of their containing information from an internal Departmental system. The Section 375A Certificate was found by the Tribunal to be invalid. The Tribunal considered the information covered by the Section 375A Certificate to be neither detrimental nor beneficial to Mr Rajmohan and accordingly gave it no weight: CB 113 at [4];
(c)referred to evidence that:
(i)Mr Rajmohan’s Higher Education Visa was granted based upon his enrolment at La Trobe University in a Diploma in Health Sciences and a Bachelor of Nursing, but that he had ceased his enrolment in both courses, and in April 2015 enrolled at Holmes Institute in a Bachelor of Professional Accounting: CB 114 at [9];
(ii)PRISMS records confirmed that on 18 March and 9 April 2015 respectively Mr Rajmohan’s enrolment in the Diploma in Health Sciences and Bachelor of Nursing ceased, and on 13 April 2015 he enrolled in a Bachelor of Professional Accounting: CB 114 at [9];
(iii)on 1 July 2015 Mr Rajmohan’s enrolment in the Bachelor of Professional Accounting was cancelled due to non-payment of course fees: CB 114 at [10]; and
(iv)Mr Rajmohan confirmed that he was not enrolled in a registered course of study at any time thereafter up to the cancellation of his Higher Education Visa on 2 March 2016: CB 114 at [10]; and
(d)found that Mr Rajmohan was not enrolled in a registered course of study and therefore had not complied with Condition 8202(2): CB 114 at [11].
The Tribunal, having made the finding that a ground for cancellation existed, then considered whether it ought to use its discretion to cancel the Higher Education Visa: CB 114 at [12]. In considering whether it ought to exercise its discretion the Tribunal:
(a)accepted:
(i)that Mr Rajmohan may have travelled to Australia with the intention of gaining higher education and gave this some weight in favour of not cancelling the Higher Education Visa; and
(ii)Mr Rajmohan’s evidence with respect to his decision to change study pathways: CB 114-115 at [16];
(b)noted the submission made by Mr Rajmohan at the Tribunal Hearing that he had a compelling need to remain in Australia because he had already been here for two years and, if his Higher Education Visa was cancelled, he would not be allowed to return for three years, which the Tribunal acknowledged as a potential legal consequence of the cancellation of the Higher Education Visa, but did not find this, or any other reason given by Mr Rajmohan, to be a compelling reason to remain in Australia: CB 115 at [17];
(c)noted Mr Rajmohan’s evidence that his parents, particularly his mother, had faced unexpected medical problems which had meant that they had to spend most of the money saved for Mr Rajmohan’s course fees on medical tests: CB 115 at [19]. Mr Rajmohan gave evidence that both his mother’s health problems and the death of his maternal grandmother at the end of 2015 had affected him mentally: CB 116 at [22], and that when the health of his parents had improved and he was ready to re-enrol, it was already the middle of the third semester, so he decided to wait until March 2016 to re-enrol: CB 116 at [23]. When questioned by the Tribunal as to why he had not enrolled in his course before his Higher Education Visa was cancelled on 2 March 2016, Mr Rajmohan said that he did not receive money from his parents until later in March/April 2016 and he was planning to enrol later: CB 116 at [24];
(d)noted that Mr Rajmohan had provided various medical documents relating to his parents, and while it accepted that both Mr Rajmohan’s parents had ongoing health concerns, it was not able to discern from the documents that his mother’s health had deteriorated to the extent claimed. It noted Mr Rajmohan had provided no evidence of his family’s claimed financial difficulties. On the evidence before it the Tribunal was not satisfied that any difficulties Mr Rajmohan faced with paying his course fees were due to circumstances beyond his control and gave the evidence limited weight in favour of not cancelling the Higher Education Visa: CB 116-117 at [25];
(e)accepted that Mr Rajmohan’s grandmother had passed away and that this had caused him sadness, but given that Mr Rajmohan did not seek any psychological or other assistance in relation to his described depression, placed limited weight on his statement that this was a reason he did not re-enrol in his studies: CB 117 at [26];
(f)placed little weight on Mr Rajmohan’s evidence that he could not study in Australia because “it confused him”: CB 117 at [27];
(g)gave weight to its concerns about the lack of evidence to support Mr Rajmohan’s claim that he had intended to re-enrol in late March 2016 as a factor in favour of cancellation of his Higher Education Visa. The Tribunal found the fact that Mr Rajmohan had used money sent by his mother to buy a car in order to go sightseeing, but did not take any action in relation to obtaining enrolment up until the time his Higher Education Visa was cancelled, to be at odds with an intention to remain in Australia to study: CB 117 at [28];
(h)placed little weight on Mr Rajmohan’s evidence that he did not believe the lack of enrolment would result in his Higher Education Visa being cancelled, finding that it was Mr Rajmohan’s responsibility to be aware of the conditions attached to his Higher Education Visa: CB 117 at [29];
(i)noted that Mr Rajmohan was not enrolled in a registered course for a period of eight months from 1 July 2015 until his Higher Education Visa was cancelled on 2 March 2016, a period which the Tribunal considered “significant”: CB 117 at [30];
(j)gave some weight in favour of not cancelling the Higher Education Visa to the fact that there was no evidence that Mr Rajmohan did not comply with any other Higher Education Visa conditions: CB 118 at [31];
(k)accepted that if Mr Rajmohan’s Higher Education Visa were cancelled, he, and his family, would consider the money and time spent on his study to be lost and would be disappointed, but did not consider that this amounted to hardship for either Mr Rajmohan or his family members: CB 118 at [32]-[33];
(l)acknowledged that Mr Rajmohan’s parents had health problems, but was not satisfied on the evidence before it that cancellation of Mr Rajmohan’s Higher Education Visa would cause a degree of hardship for them such that it outweighed other considerations: CB 118 at [35];
(m)gave some weight:
(i)in favour of not cancelling the Higher Education Visa to the fact that Mr Rajmohan appeared to have been cooperative in his dealings with both the Department and Tribunal: CB 118 at [37]; and
(ii)to the fact that cancellation of Mr Rajmohan’s Higher Education Visa may result in Mr Rajmohan being prevented from being granted another temporary visa for three years, but was not satisfied that this outweighed other factors discussed in the Tribunal Decision: CB 119 at [40]; and
(n)having considered the circumstances as a whole, concluded that the Higher Education Visa should be cancelled, and therefore affirmed the Delegate’s Decision: CB 119 at [44] and [45].
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
Grounds
The Judicial Review Application as filed contains three grounds which are set out below at [45] (ground 1), [52] (ground 2) and [58] (ground 3).
In the course of the final hearing, two additional grounds emerged, namely grounds relating to:
(a)the Section 375A Certificate and folios 1, 2 and 3 of Departmental File CLF2016/13524 (“Section 375A Ground”); and
(b)the conduct of the Tribunal in relation to the provision of a bank statement to the Tribunal by Mr Rajmohan, which Mr Rajmohan asserted would evidence that in late March or early April 2016 money was being forwarded to him by his parents to facilitate his re-enrolment in an eligible course (“Bank Statement Ground”).
Materials
In determining this matter the Court has considered the following materials which are before the Court:
(a)a Court Book (“CB”) numbering 138 pages (“Exhibit 1”);
(b)the affidavit of Mr Rajmohan affirmed 15 February 2017, annexing the Tribunal Decision (“Rajmohan February 2017 Affidavit”);
(c)the affidavit of Michelle Stone affirmed 2 March 2020, annexing Section 375A Certificate, and folios 1, 2 and 3 of Departmental File CLF2016/13524 (“Stone Affidavit”);
(d)the Minister’s written submissions filed 30 June 2021 (“Minister’s June 2021 Written Submissions”),
(e)Mr Rajmohan’s written submissions filed 20 September 2021 (“Rajmohan September 2021 Written Submissions”);
(f)the Minister’s further written submissions filed 29 September 2021 (“Minister’s September 2021 Written Submissions”);
(g)the affidavit of Mr Rajmohan affirmed 18 February 2022, annexing some written submissions and various other documents, primarily documents that were before the Tribunal, or documents already filed with the Court (“Rajmohan February 2022 Affidavit”);
(h)the affidavit of Corey Jade Antonowicz affirmed 11 March 2022 (“Antonowicz Affidavit”), annexing a transcript of the Tribunal Hearing (“Tribunal Hearing Transcript”);
(i)Mr Rajmohan’s written submissions filed 1 April 2022 (“Rajmohan April 2022 Submissions”);
(j)the Minister’s written submissions filed 21 April 2022 (“Minister’s April 2022 Submissions”); and
(k)the transcript of the hearings in this Court on 19 October 2021 and 5 May 2022.
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon Mr Rajmohan to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
Fact-finding is a matter for the Tribunal: as part of its fact-finding function it is for the Tribunal to identify the material it finds relevant to its reasoning and to give that material the weight it considers appropriate: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”) CLR at 272 and 282-283 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 (“Tran”) at [5]-[7] per RD Nicholson J.
The Tribunal was not required to accept uncritically any and all claims made by Mr Rajmohan: Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J, or possess rebutting evidence before finding that his assertions were not established: Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J. The Tribunal was also not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, nor was the Tribunal required to expressly refer to each and every individual piece of evidence provided by Mr Rajmohan or make findings regarding each of those pieces of evidence: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ.
It is therefore not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine Mr Rajmohan’s application for a Higher Education Visa: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court is also cognisant that Mr Rajmohan is self-represented, and that the Court must therefore endeavour to remain independently alert to the possibility of jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 (“MZAIB”) at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 (“Ludgero”) at [26] per Judge Lucev.
Legislative Scheme
Section 116(1)(b) of the Migration Act gives the Minister the discretionary power to cancel a person's visa in circumstances where the visa holder has not complied with a condition of the visa. At all material times Condition 8202(2) relevantly required as follows:
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; …
Bank Statement Ground
It is convenient to commence the consideration of the issues with the Bank Statement Ground, for if jurisdictional error can be established in relation to the Bank Statement Ground, then such a jurisdictional error may infect other grounds. What has become the Bank Statement Ground was the issue which caused the Court to relist the matter for a directions hearing on 21 January 2022, and for a resumed final hearing on 5 May 2022, and for the filing of affidavits and submissions limited to the issue of the conduct of the Tribunal Hearing: see [3]-[4] above, and SZRUR, MZAIB and Ludgero as cited at [4] and [17] above. Much of what was submitted by way of affidavit and submissions (and sometimes both in the one document) by Mr Rajmohan reiterated earlier submissions concerning issues, particularly as to the merits of the issues before the Tribunal, rather than the conduct of the Tribunal Hearing itself, as required by the orders made on 21 January 2022. To some degree, and perhaps understandably, the Minister’s submissions address the broader range of issues raised by Mr Rajmohan.
Submissions
Mr Rajmohan relevantly submitted that:
(a)the Tribunal asked him if he had evidence that he received money and was planning to enrol at the end of March 2016 for the March 2016 trimester intake, to which he said he could provide a bank statement proving he did receive funds, but the Tribunal did not acknowledge this: Tribunal Hearing Transcript, p 24, lines 18 and 21;
(b)he asked at least twice if the Tribunal needed additional documents, an inquiry which the Tribunal “neglected”, and before he left the Tribunal hearing room after the Tribunal Hearing he was waiting for certain documents to be copied and brought back, and he asked if the Tribunal needed any more documents, but the Tribunal Member said “no I have everything for now”, but this was not recorded on the Tribunal Hearing Transcript as it was at the after the Tribunal Hearing had finished; and
(c)if the immigration raid at his house, the cause for which was completely unrelated to him and his circumstances, had not taken place he would have enrolled at the end of March 2016 as he had the funds, but the Tribunal said there is no proof to suggest that: Tribunal Hearing Transcript, p 25, line 24. He said he could prove this by providing a bank statement, which the Tribunal failed to acknowledge or missed: Tribunal Hearing Transcript, p 24, line 18, and he should have been given the opportunity to provide it.
The Minister relevantly made the following submissions:
(a)Mr Rajmohan asserts that he told the Tribunal that he could provide a bank statement in support of his claim that he had planned to re-enrol in a course in March 2016 but was unable to do so as he could not pay the course fee. Mr Rajmohan gave oral evidence to the Tribunal that he was planning to re-enrol in his course in the March 2016 intake, but that before he was able to do so his Higher Education Visa was cancelled: Tribunal Hearing Transcript, page 18 lines 5-45 and page 23 lines 12-26. Mr Rajmohan claimed that he had not enrolled earlier because he did not have the money to pay the course fees until his mother sent him money in late March 2016: Tribunal Hearing Transcript, p 23 line 40. The Tribunal, however, raised with Mr Rajmohan that his mother had sent him money prior to this and that he used this money to buy a car, with which Mr Rajmohan agreed: Tribunal Hearing Transcript, p 23 line 43 - p 24 line 11. The Tribunal asked Mr Rajmohan if he had any evidence that he was planning to enrol in March 2016, and the applicant indicated that he could get a bank statement showing that he received the money in late March 2016: Tribunal Hearing Transcript, p 24 lines 21-22;
(b)in the Tribunal Decision the Tribunal noted that Mr Rajmohan had not provided this bank statement, but in any event, found that he had been ready to re-enrol in his course in November 2015 but had not taken any steps to do so, and found that his lack of action to obtain enrolment until the time his Higher Education Visa was cancelled was at odds with his principal reason to remain in Australia: CB 117 at [28]; and
(c)Mr Rajmohan complains that the Tribunal did not “acknowledge” his statement that he could obtain a copy of his bank statement, and that the Tribunal did not tell him to provide a copy of the bank statement. It was for Mr Rajmohan to provide the evidence on which he wished to rely in support of the application to the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 (“Abebe”), and the Tribunal was under no obligation to assist him in making his case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549, FCR at 169-170 per Wilcox J. Mr Rajmohan stated at the Tribunal Hearing that he could provide a bank statement, and it was open to him to do so. The Tribunal Decision was not made until 16 January 2017, some two months after the Tribunal Hearing, which provided Mr Rajmohan ample opportunity to provide a bank statement if he wished to do so. No error is disclosed merely because the Tribunal did not tell Mr Rajmohan to provide the bank statement: Nazar v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 617 (“Nazar”) at [70] per Judge Kendall.
The evidence
At the outset of the consideration of the evidence, it is necessary to observe that the Minister’s Counsel elected not to cross-examine Mr Rajmohan: Transcript, 5 May 2022, pp 2-3 and 8. Mr Rajmohan’s evidence, and in particular, the relevant evidence in the Rajmohan February 2022 Affidavit, was therefore not contested by the Minister.
At the Tribunal Hearing the following exchange occurred: Tribunal Hearing Transcript, p 24, lines 18-25:
MS WYSOCKA: Do you have any evidence that you were going to enrol or you were planning to enrol in March?
MR RAJMOHAN: I – not now, but I could get a bank statement which says I got the money late March.
MS WYSOCKA: Okay. Sorry since your visa was cancelled – and that was in, what March this year – what have you been doing?
Following on from the question by the Tribunal in the exchange in the previous paragraph, Mr Rajmohan explained that he had joined the Dandenong Library so that he could read and improve his English. The Tribunal then expressed the view that he was in breach of Condition 8202, and “move[d] on” to considering issues concerning whether to exercise the discretion to cancel the Higher Education Visa: Tribunal Hearing Transcript, p 24, lines 27-41.
Later in the Tribunal Hearing, the Tribunal indicated to Mr Rajmohan: Tribunal Hearing Transcript, p 26, lines 6-8 and 24-36 as follows:
MS WYSOCKA: … I’ll certainly take all of these documents that you’ve just provided to me today into consideration …
…
MR RAJMOHAN: - - - I can get a medical certificate from the doctor saying that these conditions were from – but it’ll be, like, gathering evidence. So I just wanted to show you that this was what happened. If you want, I can get you those evidence. I can get you the original copies and - - -
MS WYSOCKA: I don’t need the original copies, but – I mean, it’s up to you, if you – I mean, look, I’m telling you these are the things I need to take into account - - -
MR RAJMOHAN: Yes.
MS WYSOCKA: - - - so if you want to provide anything else, that’s open for you to do.
However, the Court observes that this indication was given in the context of a discussion concerning the provision of medical documents, not financial documents or bank statements.
Immediately prior to the adjournment of the Tribunal Hearing, the Tribunal Member says to Mr Rajmohan that “I’m just going to take a copy of this” and asked Mr Rajmohan to “wait outside” and that she will “get someone to come and give the original back to you”: Tribunal Hearing Transcript, p 32, lines 22, 26 and 30-31. What happens next is crucial to the disposition of this matter, and it is Mr Rajmohan’s uncontested evidence that immediately after the Tribunal Hearing, when the transcript recording had ended, and whilst he waited for some documents to be copied and returned to him, he asked the Tribunal Member “if she needed any more documents, but she said no I have everything for now”: Rajmohan February 2022 Affidavit at [6].
In the Tribunal Decision, at CB 117 at [28], the Tribunal made adverse findings against Mr Rajmohan, specifically relying on the bank statement referred to at the Tribunal Hearing not being produced, as follows:
The tribunal further has concerns about the applicant's evidence that he was planning to re-enrol in a course in late March 2016, given that he has not provided any evidence to support this intention and gives weight to these concerns as a factor in favour of cancellation of his visa. Although the applicant advised at hearing that he could provide the tribunal a bank statement showing that he received money in late March, as at the date of this decision no such documentation has been provided. Furthermore, the tribunal gives weight to the fact that, despite claiming that he was ready to re-enrol in a course by November 2015, the applicant did not take any steps to contact his course provider or enrol in a course at any time before his student visa was cancelled on 2 March 2016. Instead, the applicant advised that he used money sent by his mother to buy a car in order to go sightseeing. While the tribunal accepts that the applicant may wish to have a car, his lack of any action in relation to obtaining enrolment up until the time that his visa was cancelled (only a few weeks prior to the start of his course) appears at odds with the applicant's principal reason to remain in Australia, ie to study.
The Court, therefore, finds that the facts in relation to what occurred during, and immediately after, the Tribunal Hearing, concerning the provision of the bank statement, are as follows:
(a)Mr Rajmohan offered to provide a bank statement that would support his claim that he received money in late March 2016 for his intended enrolment;
(b)the Tribunal’s response to that offer was equivocal, and did not provide any indication as to whether Mr Rajmohan ought to provide the bank statement to the Tribunal or not;
(c)that the Tribunal indicated to Mr Rajmohan that if he wished to provide “anything else” he could do so, but that this was said in the context of the provision of medical documents;
(d)that when specifically asked the Tribunal Member told Mr Rajmohan that the Tribunal did not need any more documents from him “for now”;
(e)there was no subsequent request from the Tribunal to Mr Rajmohan for further documents, including the bank statement; and
(f)Mr Rajmohan did not voluntarily provide the bank statement to the Tribunal.
It will be necessary to make some further observations and findings in relation to the evidence before the Tribunal in the context of the Court’s consideration of materiality: see below at [42]-[43].
Consideration – Bank Statement Ground
Relevant to the disposition of this matter is s 425(1) of the Migration Act which provides as follows:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Court notes that:
(a)in certain circumstances a denial of procedural fairness may constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; and
(b)legal unreasonableness may constitute jurisdictional error: Minister for Immigration and Citizenship vLi [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [63]-[76] per Hayne, Kiefel and Bell JJ, reasonableness being an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ.
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966; (2002) 190 ALR 601; (2002) 68 ALD 257 (“Muin”) and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 (“Aala”), were applied by the Full Court of the Federal Court in BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61; (2017) 248 FCR 159 (“BBS15”), where at [106] per Griffiths, Kerr and Farrell JJ it was observed that the principle established by the High Court in Muin and Aala was as follows:
106… it is a failure of s 425 of the Act if the failure to provide information causes the Tribunal (even innocently) to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment. …
In each of Muin, Aala and BBS15, the Tribunal created in the applicants an expectation that the Tribunal would have regard to certain material, either by expressly noting the material it would consider or by stating in more general terms that it would have regard to “all” the material before it. In those matters, there was found to be a want of procedural fairness where the Tribunal “mistakenly, but nonetheless prejudicially to the prosecutor [applicant], caused him to believe that a state of affairs relating to the manner in which he might choose to conduct his case existed when in fact that state of affairs did not exist.”: Aala at [206] per Callinan J.
The facts of the present case differ slightly, but the principle still applies. Unlike Muin, Aala, and BBS15, the mistaken belief was not that the Tribunal had before it documents which had never in fact been received by the Tribunal, but instead that the Tribunal had no need of the bank statement offered by Mr Rajmohan. It is apparent from the evidence of Mr Rajmohan that he came to understand that he did not need to provide the Tribunal with any further documentation, including the bank statement, and that he did so because of an express representation by the Tribunal Member (albeit after the completion of the Tribunal Hearing): see [26] and [28(d)] above. It can be inferred from Mr Rajmohan’s evidence that, had he been aware that the failure to provide the Tribunal with the document would be weighed against him in the Tribunal Decision, he would have provided the bank statement to the Tribunal.
In Bains v Minister for Immigration and Citizenship and Another [2012] FCA 649; (2012) 205 FCR 217; (2012) 128 ALD 544 at [40] per Bromberg J, the Federal Court observed that:
A denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. The case dealt with by the High Court in Aala provides an example of a case where a party was misled by a Tribunal into believing that the Tribunal had taken into account certain material. The decision of the Tribunal was quashed for want of procedural fairness, because a credibility finding adverse to the party misled might not have been made if that party had not been misled and thereby taken the opportunity to answer the adverse inferences made by the Tribunal, which had led to the adverse credibility finding. In that case, the misleading conduct resulted in the denial of a proper opportunity to be heard and it could not be said that the denial of that opportunity made no difference to the outcome of the proceeding: See in particular Gleeson CJ at [4]; Gaudron and Gummow JJ at [80] and Kirby J at [128]-[133].
The Minister’s arguments that it was for Mr Rajmohan to make out his case: Abebe, and not for the Tribunal to tell Mr Rajmohan what documents he needed to provide to the Tribunal: Nazar, whilst correct, do not assist in this case. That is because the Tribunal went a step further and expressly represented to Mr Rajmohan that no further documents would be required. The fact that that representation was caveated by the phrase “for now” is immaterial in circumstances where there was no further communication between Mr Rajmohan and the Tribunal with respect to the provision of documents, and the matter was therefore left on the basis that the Tribunal required no further documents.
Had Mr Rajmohan provided the bank statement (which is plainly relevant to his case) to the Tribunal, the Tribunal’s adverse finding at CB 117 at [28] would have fallen away, at least insofar as it depended upon the non-provision of the bank statement by Mr Rajmohan (as opposed to any information contained therein). If the bank statement had been provided, the Tribunal would then have had to consider the financial information therein, and whether or not it supported Mr Rajmohan’s contention that he intended to re-enrol in late March 2016, and whether in the overall consideration of the discretionary matters (otherwise properly considered by the Tribunal) that information would have made any difference.
In the circumstances set out at [26], [28(d)] and [34] above, the Court considers that Mr Rajmohan was misled by the Tribunal into believing that it was not necessary for him to provide the bank statement to the Tribunal. In circumstances where the failure to provide the bank statement to the Tribunal then formed the basis for adverse findings against Mr Rajmohan, the Court has to consider whether Mr Rajmohan was thereby deprived of a fair opportunity of presenting his case, essentially contrary to s 425(1) of the Migration Act, or because of a denial of procedural fairness or an unreasonable exercise of discretion by the Tribunal, and if that was a jurisdictional error because it could have been material because being deprived of that opportunity meant that there may have been a realistic possibility that the Tribunal Decision could have resulted in a different outcome: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
In relation to jurisdictional error, there is a threshold of materiality, because, as the High Court observed in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 75 AAR 551; (2018) 359 ALR 1 (“Hossain”), ordinarily a breach of condition cannot be material unless compliance with it could have resulted in the making of a different decision: Hossain at [31] per Kiefel CJ, Gageler and Keane JJ (see also [29] and [35] per Kiefel CJ, Gageler and Keane JJ). In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 (“SZMTA”) the High Court went further than it did in Hossain and held that materiality “is a question of fact in respect of which the applicant for judicial review bears the onus of proof”: SZMTA at [4] per Bell, Gageler and Keane JJ, but reiterated that any breach of condition is only material if compliance with the relevant condition could realistically have resulted in a different decision: SZMTA at [45] per Bell, Gageler and Keane JJ. In Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 the High Court observed that a breach of condition justified relief where it operated to deprive an applicant “of the possibility of a successful outcome”: at [56] per Gageler and Gordon JJ.
Materiality might be seen as an essentially functional question: how grave or substantial is the error?: Hossain at [20] per Kiefel CJ, Gageler and Keane JJ and [69] per Edelman J, the latter citing Kirk & Anor v Industrial Court of New South Wales & Anor [2010] HCA 1; (2010) 239 CLR 531; (2010) 84 ALJR 154; (2010) 190 IR 437; (2010) 262 ALR 569; (2010) 113 ALD 1; (2010) 62 AILR 200–447 at [53] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, wherein the High Court observed that some departures would not warrant the grant of relief, but referred to the relevant error as one which was “substantial”.
In proving a realistic possibility that the Tribunal could have arrived at a different outcome, it is necessary for Mr Rajmohan to establish the factual foundation for a finding that the Tribunal failed in the proper exercise of the power conferred, in this case by s 425(1) of the Migration Act: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94; (2019) 163 ALD 483 at [35] per Rares, Perry and Charlesworth JJ. This requires the Court to approach the matter in the manner set out in MZAPC at [38]-[39] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:
[38] The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
[39] Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
(Footnotes omitted)
There is no dispute in this case that Mr Rajmohan told the Tribunal that he had not enrolled in a registered course before the deadline of 24 March 2016 because he was planning to enrol later, around the end of March 2016, when he was sent money by his mother for that purpose: Tribunal Hearing Transcript, p 23; CB 116 at [23]-[24] and 117 at [28]. Further, there is no dispute that when Mr Rajmohan had been sent money earlier, in November 2015, by his mother, he had spent that money on a motor vehicle: CB 116 at [23] and 117 at [28]. Curiously, the Tribunal did not refer to the evidence before it as to what did occur when Mr Rajmohan’s mother did send money to him in late March or early April 2016. That evidence was that his mother sent him money in March (or possibly April) 2016, in the sum of $4,000, and that he used that money to pay back friends who had given him food and rent money previously: Tribunal Hearing Transcript, p 22, lines 33-43 and p 24 lines 1-2; or, as Mr Rajmohan put it “I was able to pay back my debts”: Tribunal Hearing Transcript, p 22, lines 40-41. It was this $4,000 received from his mother that Mr Rajmohan was referring to when he was asked by the Tribunal as to whether there was any evidence that he was going to enrol, or planning to enrol, in March 2016, and responded that “I could get a bank statement which says that I got the money late March”: Tribunal Hearing Transcript, p 24, lines 21-22. There was otherwise no evidence before the Tribunal that Mr Rajmohan had money to enrol in a registered course.
It follows from the evidence set out in the previous paragraph that even if the bank statement had been provided to the Tribunal it could not have made any difference to the Tribunal Decision because the Tribunal knew what had happened to the $4,000 which would have appeared – on Mr Rajmohan’s evidence – in the bank statement, that is, that Mr Rajmohan had disposed of the money to pay back food and rent debts, and had not used it to pay for enrolment in a registered course. Additionally, this occurred in circumstances where there was no evidence that Mr Rajmohan had other financial means or available money to be able to pay for enrolment in a registered course. In these circumstances, the Court is not satisfied that there is a realistic possibility that the Tribunal Decision could have been different had the bank statement been provided.
The Court therefore finds that in relation to the Bank Statement Ground there is no jurisdictional error in the Tribunal Decision, whether on the basis of a breach of a condition arising from s 425(1) of the Migration Act, procedural fairness or unreasonableness.
Ground 1
Ground 1 of the Judicial Review Application is as follows:
1.The Tribunal's finding that the applicant had no compelling reasons for waiving condition 8202 of Schedule 8 criteria was so illogical and irrational reasoning process which resulted in the Tribunal fell in to jurisdictional error. (Vide - Minster for Immigration & Citizenship-V-SZMDS {2010} HCA 16.
Consideration – ground 1
Insofar as this ground contends that the Tribunal should have waived the requirements of Condition 8202, ground 1 is misconceived. It was not within the Tribunal’s power to waive the requirements of Condition 8202. The Tribunal’s task was to determine whether Mr Rajmohan had complied with Condition 8202 and if he had not, whether it should exercise its discretion to cancel the Higher Education Visa.
An instance where the Tribunal has made findings that are legally illogical, irrational or otherwise unreasonable may also amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] and [135] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [60]-[61] per McKerracher, Griffiths and Rangiah JJ. Fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J. SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: at [131] per Crennan and Bell JJ.
In relation to the allegation that the Tribunal Decision was illogical or irrational in relation to the exercise of its discretion to cancel the Higher Education Visa, the relevant question in relation to illogicality is therefore whether the Tribunal Decision was “one at which no rational or logical decision-maker could arrive on the same evidence”: SZMDS at [131] per Crennan and Bell JJ, noting that “even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”: CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.
Mr Rajmohan has not particularised any finding by the Tribunal that he says was illogical or irrational. Rather, he cavils with the weight given by the Tribunal to his evidence in relation to his circumstances and says that the Tribunal would not have reached the decision it did had it given more weight to his evidence: Transcript, 19 October 2021, pp 7-8. The Tribunal was, however, entitled to accept or reject, or give such weight to the evidence proffered as it thought appropriate in all the circumstances; the weight to be given to Mr Rajmohan’s claims and evidence being a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran at [5]-[7] per RD Nicholson J. Thus fact-finding is generally not susceptible to review in judicial review proceedings: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The Tribunal provided clear and cogent reasons for exercising its discretion to cancel the Higher Education Visa. By way of example, the Tribunal:
(a)was not able to discern from the medical documents provided by Mr Rajmohan that his mother’s health deteriorated to the level claimed, and Mr Rajmohan provided no evidence of his family’s claimed financial difficulties: CB 116-117 at [25];
(b)found that there was a lack of evidence before it with respect to Mr Rajmohan’s mental state: CB 117 at [26];
(c)considered that Mr Rajmohan made no attempts to contact his course provider or enrol in a course, and used the money sent by his parents in November 2015 for enrolment purposes for sightseeing purposes, which the Tribunal considered to be at odds with an intention to remain in Australia for the purposes of study: CB 117 at [28];
(d)found that Mr Rajmohan had not been enrolled in a course of study for a significant period, that being a period of eight months in 2015-2016, immediately prior to the Cancellation of the Higher Education Visa: CB 117 at [30]; and
(e)accepted that the cancellation of Mr Rajmohan’s Higher Education Visa would result in disappointment for Mr Rajmohan and his family, but found that there was no evidence before it as to how or why cancellation would amount to hardship for either Mr Rajmohan or his family: CB 118 at [32]-[33].
In the absence of:
(a)particulars as to illogicality or irrationality (a want of particulars may, of itself, constitute a basis for dismissing an alleged ground of jurisdictional error: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J citing WZAVW); or
(b)anything approaching submissions as to what might constitute illogicality or irrationality arising from Mr Rajmohan’s submissions,
there is nothing to suggest the Tribunal could not arrive at the conclusions it did on the evidence before it, or that the Tribunal’s conclusions were otherwise illogical or irrational: SZMDS at [131]-[135] per Crennan and Bell JJ.
For the reasons set out at [46]-[50] above, it follows that ground 1 amounts to no more than an invitation for the Court to undertake impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that no jurisdictional error is established by ground 1.
Ground 2
Ground 2 of the Judicial Review Application is as follows:
2.The Tribunal's finding at paragraph 13 that there are no requirement to be considered in relation to the exercise of discretion was an incorrect interpretation of the law and by not exercising the discretion the Tribunal fell into jurisdictional error.
Consideration – ground 2
At CB 114 at [13] the Tribunal found as follows:
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3).
The above-quoted paragraph was preceded, at CB 114 at [12], by the following:
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
There are no errors in the Tribunal’s observations set out at [53] and [54] above. Neither the Migration Act nor the Migration Regulations prescribe any factors to be considered in the exercise of the Tribunal’s discretion for a matter such as this one: Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; (2017) 255 FCR 486; (2017) 161 ALD 1 at [22] per Gilmour and Mortimer JJ. For the sake of completeness, the Court observes that the Tribunal was not required to expressly consider all of the factors in the PAM3 Guidelines to which it referred at CB 114 at [13], and it was open to the Tribunal to consider factors outside of those contained in the PAM3 Guidelines: El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [45] per Gray J; Baston v Minister for Immigration and Border Protection [2018] FCA 73 at [68] per Siopis J; Tung v Minister for Immigration & Anor [2019] FCCA 2368 at [75] per Judge Lucev.
The Tribunal properly considered Mr Rajmohan’s claims and evidence, and having done so, concluded that Mr Rajmohan’s Higher Education Visa ought to be cancelled: CB 119 at [44]. The Tribunal Decision was based upon a cumulative consideration of Mr Rajmohan’s evidence and claims. The Tribunal had an unconfined discretion in its decision-making, the matters to which it had regard were relevant, and its subsequent findings were open to it on the evidence. In those circumstances, it cannot be said that the Tribunal erred in law by not exercising its discretion, or that it failed to exercise its discretion.
For the reasons set out at [55] and [56] above no jurisdictional error is established by ground 2.
Ground 3
Ground 3 of the Judicial Review Application is as follows:
3.The Tribunal erred in affirming the cancellation of the visa under section 116(1) of the Migration Act without considering the extenuating circumstances beyond the applicant's control which existed at the relevant time, such as the illness of the applicant’s mother who was supporting the applicant financially, resulting in Emotional and Financial problems upon the applicant.
Consideration – ground 3
The Tribunal:
(a)noted that Mr Rajmohan had:
(i)provided various medical documents relating to his parents dated between 2012 and 2016, and accepted on the basis of those documents that his parents had some ongoing health conditions and that these conditions may cause Mr Rajmohan concern for his parents, but was not able to discern from the documents that around early to mid-2015 his mother’s health deteriorated to the extent claimed by Mr Rajmohan; and
(ii)provided no evidence regarding the financial difficulties that his family allegedly faced (an issue distinct from the Bank Statement Ground)) which he claimed resulted in him being unable to pay his course fees,
and was therefore not satisfied on the evidence before it that any difficulties Mr Rajmohan may have faced with paying his course fees were due to circumstances beyond his control: CB 116-117 at [25];
(b)gave limited weight to Mr Rajmohan’s evidence that his worry about his mother’s health prevented him from being able to concentrate on his studies or enrol in a course given:
(i)the lack of evidence before it with respect to Mr Rajmohan’s mental state, and
(ii)its inability to discern Mr Rajmohan’s mother’s health situation based on the documentation provided: CB 117 at [26]; and
(c)again noted the health concerns in relation to Mr Rajmohan’s parents, but found, on the evidence before it, it was not satisfied that the cancellation of Mr Rajmohan’s Higher Education Visa would result in a degree of hardship to his parents such that it outweighed other considerations: CB 118 at [34]-[35].
It is clear from the matters set out at [59] above that the Tribunal did expressly consider Mr Rajmohan’s alleged extenuating circumstances. The Tribunal’s consideration of the weight to be given to the evidence, and its determination of the facts, in relation to the “extenuating circumstances” referred to in ground 3 was both a proper and straightforward assessment wholly within the normal function of the Tribunal as an administrative decision-maker, and ground 3 does no more than impermissibly seek to cavil with the Tribunal’s merits findings, contrary to longstanding authority and practice: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, Tran at [5]-[7] per RD Nicholson J.
For the reasons set out at [59] and [60] above no jurisdictional error is established by ground 3.
Section 375A Certificate
Background
The Section 375A Certificate issue was raised in the Minister’s June 2021 Submissions. The relevant background regarding the Section 375A Certificate is as follows:
(a)the Department issued the Section 375A Certificate: CB 5, in relation to the disclosure of certain documents, being documents contained in folios 1, 2 and 3 of Departmental file CLF2016/13524. Those documents are ICSE records relating to Mr Rajmohan, and are before the Court: Stone Affidavit at [3]-[4]; and
(b)the Tribunal found the Section 375A Certificate to be invalid, and did not accept that the disclosure of the documents covered by it would be contrary to the public interest simply because they contained information from an internal Departmental system, considering the information contained in the documents covered by the Section 375A Certificate to be “neither detrimental nor beneficial to the applicant” and gave “no weight to the information certified pursuant to s 375A in its findings”: CB 113 at [4].
In relation to the Section 375A Certificate, the Minister concedes that :
(a)the Section 375A Certificate is invalid on its face because it does not specify a reason why the disclosure of the document or information would be contrary to the public interest, as required by s 375A of the Migration Act: Singh v Minister for Immigration and Border Protection [2016] FCAFC 183; (2016) 244 FCR 305; (2016) 343 ALR 97; (2016) 71 AAR 169 at [10] per Kenny, Perram and Mortimer JJ;
(b)the invalid notification is a breach in relation to the conduct of the Tribunal’s review; and
(c)the Tribunal did not disclose the existence of the Section 375A Certificate to Mr Rajmohan, and that this constituted a breach of its procedural fairness obligations: SZMTA at [2] and [38] per Bell, Gageler and Keane JJ.
Consideration - Section 375A Certificate
Jurisdictional error only arises in relation to the invalid notification if it is material in the sense that there is a realistic possibility that the Tribunal Decision could have been different if the Tribunal had taken the document or information the subject of the Section 375A Certificate into account: SZMTA at [3], [44]-[45] and [48] per Bell, Gageler and Keane JJ. Mr Rajmohan bears the onus of establishing that any jurisdictional error was material: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The Tribunal did not rely on the invalid notification. The Tribunal recognised that the Section 375A Certificate was invalid and found that the documents covered by the Section 375A Certificate were not relevant to its task, were not adverse to Mr Rajmohan, and as such were given no weight by the Tribunal. There is, therefore, no possibility that the Tribunal Decision could have been different but for the invalid notification.
In relation to the breach of procedural fairness, this will only result in a jurisdictional error if there is a realistic possibility that the Tribunal Decision could have been different if the notification had been disclosed so as to allow Mr Rajmohan a full opportunity to make submissions: SZMTA at [38] and [49] per Bell, Gageler and Keane JJ. The documents covered by the Section 375A Certificate do not contain information prejudicial to Mr Rajmohan or relevant to the Tribunal’s review. There is therefore no possibility that the outcome of the Tribunal Decision could have been different had the Section 375A Certificate been disclosed to Mr Rajmohan. The Tribunal’s failure to disclose the Section 375A Certificate was therefore not material and did not amount to a jurisdictional error: SZMTA at [38] and [49] per Bell, Gageler and Keane JJ; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; (2017) 253 FCR 36.
No jurisdictional error in the Tribunal Decision is therefore established in relation to any arising issue from the Section 375A Certificate.
CONCLUSION AND ORDER
For the reasons set out at [19]-[67] above, the Court has concluded that none of the grounds of the Judicial Review Application, the Bank Statement Ground, or the Section 375A Certificate Ground, nor any of the matters raised in Mr Rajmohan’s Written or Oral Submissions, establish jurisdictional error in the Tribunal Decision. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 May 2022
- AGLC
- Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 4
- Case
- [2022] FedCFamC2G 4
- Decision Date
CaseChat Overview and Summary
The Federal Circuit and Family Court of Australia considered these arguments, noting that the AAT was not obligated to assist the applicant in making his case and that it was the applicant's responsibility to provide evidence. The Court found that the AAT's decision was not flawed merely because it did not instruct the applicant to provide a bank statement. The Court also determined that the AAT's findings were rational and based on the evidence presented. The Court held that the AAT had considered the circumstances as a whole and reasonably concluded that the visa should be cancelled. As such, the Court dismissed the originating application filed by Mr Rajmohan.
The Court further found that the AAT's decision was not materially affected by any alleged failure to afford procedural fairness, and no jurisdictional error was identified. The Court affirmed the AAT's decision, concluding that it was legally sound and properly made.
Orders
Orders of the court
1.The originating application filed 15 February 2017 be 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).
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The Tribunal, having made the finding that a ground for cancellation existed, then considered whether it ought to use its discretion to cancel the Higher Education Visa: CB 114 at [12]. In considering whether it ought to exercise its discretion the Tribunal: (a)accepted:(i)that Mr Rajmohan may have travelled to Australia with the intention of gaining higher education and gave this some weight in favour of not cancelling the Higher Education Visa; and (ii)Mr Rajmohan’s evidence with respect to his decision to change study pathways: CB 114-115 at [16]; (b)noted the submission made by Mr Rajmohan at the Tribunal Hearing that he had a compelling need to remain in Australia because he had already been here for two years and, if his Higher Education Visa was cancelled, he would not be allowed to return for three years, which the Tribunal acknowledged as a potential legal consequence of the cancellation of the Higher Education Visa, but did not find this, or any other reason given by Mr Rajmohan, to be a compelling reason to remain in Australia: CB 115 at [17];(c)noted Mr Rajmohan’s evidence that his parents, particularly his mother, had faced unexpected medical problems which had meant that they had to spend most of the money saved for Mr Rajmohan’s course fees on medical tests: CB 115 at [19]. Mr Rajmohan gave evidence that both his mother’s health problems and the death of his maternal grandmother at the end of 2015 had affected him mentally: CB 116 at [22], and that when the health of his parents had improved and he was ready to re-enrol, it was already the middle of the third semester, so he decided to wait until March 2016 to re-enrol: CB 116 at [23]. When questioned by the Tribunal as to why he had not enrolled in his course before his Higher Education Visa was cancelled on 2 March 2016, Mr Rajmohan said that he did not receive money from his parents until later in March/April 2016 and he was planning to enrol later: CB 116 at [24];(d)noted that Mr Rajmohan had provided various medical documents relating to his parents, and while it accepted that both Mr Rajmohan’s parents had ongoing health concerns, it was not able to discern from the documents that his mother’s health had deteriorated to the extent claimed. It noted Mr Rajmohan had provided no evidence of his family’s claimed financial difficulties. On the evidence before it the Tribunal was not satisfied that any difficulties Mr Rajmohan faced with paying his course fees were due to circumstances beyond his control and gave the evidence limited weight in favour of not cancelling the Higher Education Visa: CB 116-117 at [25]; (e)accepted that Mr Rajmohan’s grandmother had passed away and that this had caused him sadness, but given that Mr Rajmohan did not seek any psychological or other assistance in relation to his described depression, placed limited weight on his statement that this was a reason he did not re-enrol in his studies: CB 117 at [26]; (f)placed little weight on Mr Rajmohan’s evidence that he could not study in Australia because “it confused him”: CB 117 at [27];(g)gave weight to its concerns about the lack of evidence to support Mr Rajmohan’s claim that he had intended to re-enrol in late March 2016 as a factor in favour of cancellation of his Higher Education Visa. The Tribunal found the fact that Mr Rajmohan had used money sent by his mother to buy a car in order to go sightseeing, but did not take any action in relation to obtaining enrolment up until the time his Higher Education Visa was cancelled, to be at odds with an intention to remain in Australia to study: CB 117 at [28]; (h)placed little weight on Mr Rajmohan’s evidence that he did not believe the lack of enrolment would result in his Higher Education Visa being cancelled, finding that it was Mr Rajmohan’s responsibility to be aware of the conditions attached to his Higher Education Visa: CB 117 at [29];(i)noted that Mr Rajmohan was not enrolled in a registered course for a period of eight months from 1 July 2015 until his Higher Education Visa was cancelled on 2 March 2016, a period which the Tribunal considered “significant”: CB 117 at [30]; (j)gave some weight in favour of not cancelling the Higher Education Visa to the fact that there was no evidence that Mr Rajmohan did not comply with any other Higher Education Visa conditions: CB 118 at [31];(k)accepted that if Mr Rajmohan’s Higher Education Visa were cancelled, he, and his family, would consider the money and time spent on his study to be lost and would be disappointed, but did not consider that this amounted to hardship for either Mr Rajmohan or his family members: CB 118 at [32]-[33]; (l)acknowledged that Mr Rajmohan’s parents had health problems, but was not satisfied on the evidence before it that cancellation of Mr Rajmohan’s Higher Education Visa would cause a degree of hardship for them such that it outweighed other considerations: CB 118 at [35];(m)gave some weight:(i)in favour of not cancelling the Higher Education Visa to the fact that Mr Rajmohan appeared to have been cooperative in his dealings with both the Department and Tribunal: CB 118 at [37]; and(ii)to the fact that cancellation of Mr Rajmohan’s Higher Education Visa may result in Mr Rajmohan being prevented from being granted another temporary visa for three years, but was not satisfied that this outweighed other factors discussed in the Tribunal Decision: CB 119 at [40]; and(n)having considered the circumstances as a whole, concluded that the Higher Education Visa should be cancelled, and therefore affirmed the Delegate’s Decision: CB 119 at [44] and [45].CONSIDERATION OF THE JUDICIAL REVIEW APPLICATIONGrounds