Rijal v Minister for Home Affairs
[2020] FCCA 3287
•3 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIJAL v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 3287 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Student (Temporary) (Class TU) (subclass 500) visa – whether decision of tribunal to affirm the decision under review was affected by jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.41(1), 116(1)(b), 189, 499 |
| Cases cited: COT15 v Minister for Immigration and Border Protection (2015) 236 FCR 148 El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 |
| Applicant: | SAROJ RIJAL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 193 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 April 2020 |
| Date of Last Submission: | 22 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 3 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Crowley |
| Solicitors for the Applicant: | Fourlion Legal Pty Ltd |
| Counsel for the First Respondent: | Ms Oliver |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 24 March, 2020 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $4500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 193 of 2019
| SAROJ RIJAL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the second respondent made on 26 April, 2019. That decision affirmed a decision made by a delegate of the first respondent to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 500) visa.
The first respondent opposes the application. The second respondent has entered a submitting appearance. I have written submissions from both the applicant and the first respondent.
Which application?
Before proceeding further, it is necessary to identify the precise terms of the application with which I am dealing. In this particular case, that is no easy task. A procedural chronology is helpful.
The applicant commenced these proceedings on 29 May, 2019. His application as originally drawn contained two grounds of review: the first ground asserted that the second respondent erred by finding that the relevant breach of the applicant’s student visa which enlivened the first respondent’s discretion to cancel the visa did not occur in circumstances beyond the applicant’s control; the second ground asserted that the second respondent misdirected itself when it said that the applicant had “serious mental issues”.
An order was made on 26 June, 2019 programming the application for a final hearing. The orders are in unremarkable terms. The first respondent was to prepare a court book and serve it upon the applicant. The applicant was permitted until 4.00pm on 14 August, 2019 to file and serve any amended application upon which he intended to rely, giving complete particulars of each ground of review. Thus, the liberty to amend the application pursuant to that direction was unrestricted. Orders were also made for the delivery of written submissions and the application was adjourned to 12 November, 2019 for final hearing. These orders were made by consent.
The first respondent filed the court book on 15 July, 2019 (within the time limited for that purpose in the directions order). The applicant filed no outline of submissions. Notwithstanding that, the first respondent filed an outline of submissions on 31 October, 2019.
On 8 November, 2019 solicitors filed a notice of address for service for the applicant and commenced to act on the record for the applicant in these proceedings. They also filed an application in a case and an affidavit sworn by the applicant. In the application in a case, the applicant sought an adjournment of the final hearing and further programming orders for the filing and service of an amended application, affidavits containing any further evidence upon which the applicant wished to rely and the filing of written submissions prior to any final hearing.
On 12 November, 2019 the Court made the following orders, again by consent:
1. The hearing on 12 November 2019 be vacated.
2. By 4:00pm on 12 November 2019, the applicant shall file and serve the amended application marked SR2 and annexed to the affidavit of Saroj Rijal, filed 8 November 2019.
3. By 4:00pm 28 days prior to the hearing, the applicant shall file and serve written submissions in support of the application for review.
4. By 4:00pm 14 days prior to the hearing, the first respondent shall file and serve written submissions in respect of the first respondent's response to the application for review.
5. The application be adjourned to 21 April 2020 at 2:15pm for final hearing in the Federal Circuit Court of Australia sitting at Perth.
6. The applicant pay the first respondent's costs thrown away fixed at $500.
Presumably in purported compliance with those orders, on 12 November, 2019 the applicant filed an amended application which, on its face, was said to be “amended on 12 November 2019 pursuant to the order of Judge Kendall dated 12 November 2019”. The difficulty with that statement, however, was that it was inaccurate. Whilst the Court order of 12 November permitted the applicant to file an amended application, it was an amended application in a particular form. The applicant was not granted an unrestricted ability to amend his application as was provided for in the first directions order. The document filed on 12 November, purportedly in compliance with Judge Kendall’s order, differed markedly from the amended application marked “SR2” and annexed to the affidavit of the applicant filed on 8 November, 2019. In particular, the document that was filed:
a)added at the conclusion of the recitation of ground one the words “or failed to take into account a mandatory consideration”;
b)adopted a completely different numbering system for the particulars of the ground of review, something which, I accept, would generally be seen as of little moment;
c)included an additional paragraph to the particulars to ground one which was not included in the draft in respect of which leave had been granted (particular 1.1.4);
d)included an entirely new particular at paragraph 1.4.
No leave had been sought in respect of the document filed by the applicant. It was not authorised by the order of Judge Kendall and to the extent that the applicant sought an indulgence to file an amended application in a particular form, he did not take up that indulgence when it was granted to him.
On 24 March, 2020 the applicant filed another amended application. No leave had been granted to file that amended application. It appears, however, to be in precisely the same form as the amended application filed on 12 November, 2019. There is no apparent reason for it having been filed a second time.
Both parties have filed written submissions in these proceedings. The applicant’s written submissions proceed on the assumption that the appropriate application to be dealt with by the Court is the amended application filed on 24 March, 2020. Whilst the first respondent’s written submissions complain about the amendments that are set out in that document, it too, proceeds on the assumption that the application to be dealt with by the Court is that filed on 24 March, 2020. Whilst complaint is made by the first respondent about that document and the fact that it does not correspond to the amended application in respect of which leave was granted in November, 2019 the submissions do not suggest that the Court should disregard the unauthorised amendments.
In the written submissions filed for the applicant, the applicant foreshadows an oral application for leave to further amend the application filed on 24 March, 2020. The first respondent opposes that amendment. The written submissions that have been delivered for the applicant and the oral submissions made by counsel for the applicant before me suggest that the amendment is of no particular moment. Rather, it is necessary to simply “pick up the category addressed by the Tribunal in its reasons”. The particular as originally formulated was:
1.1.4.3. ‘past and present behavious (sic) of the visa holder towards the department’ (at [42]).
That ground and those that precede it in the amended application purport to follow the series of headings utilised by the second respondent in its reasons for decision. The heading which forms the subject of particular 1.1.4.3 appears in the second respondent’s reasons for decision.
The proposed amended ground is:
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
These words appear as a heading in the second respondent’s reasons for decision also although they form a separate category of matters considered by the second respondent.
The first respondent argues that the amendment is not derivative of anything that is already in the amended application and it raises a separate and distinct ground or particular not pleaded at any earlier time. I think that argument is correct. Whilst the amendment is probably necessary to “pick up the category addressed by the Tribunal in its reasons” it is in fact a separate and distinct category to one which was originally nominated by the applicant in the amended application.
The applicant has filed no application for leave to amend in the way in which the application was in fact amended on 12 November, 2019. Moreover, the applicant has filed no application for leave to further amend the amended application as foreshadowed in his written submissions. There is no evidence that supports any application for leave to amend and there is no evidence as to any explanation about why the amendments that have been made, do not accord with the order of Judge Kendall.
Nonetheless, given the lapse of time from the filing of the amended application on 24 March, 2020 and the lack of any evidence to suggest that the first respondent complained about the unauthorised amendments, it seems to me that the first respondent has waived any irregularities that were present by reason of the unauthorised amendments to the application. Accordingly, I will consider the application in its amended form as filed on 24 March, 2020.
However, the applicant’s application to further amend his amended application is refused. There is no evidence as to the explanation for the necessity to make the amendment, or indeed why the amendment was not part of the original tranche of amendments made in November, 2019. There is no explanation from the applicant as to why he did not act in accordance with or comply with the directions made by the Court and to which he agreed on 12 November, 2019. The applicant has been legally represented in these proceedings by his present lawyers since at least November, 2019. They represented him on the application in November, 2019.
Further, the proximity of the request to amend to the hearing date weighs against the grant of leave to amend. The applicant has already filed two amended applications with the benefit of legal advice and no explanation is given as to why the further proposed amendment was not raised earlier.
Irrespective of the merits of the proposed amendment, in the circumstances of this case I dismiss the application for leave to amend.
Background
The applicant is a citizen of Nepal. He first came to Australia in July, 2014 on a student visa. He completed a Diploma of Business in July, 2015. He intended to progress to completion of a Bachelor of Business.
On 25 April, 2015 there was an earthquake in Nepal which destroyed his family’s home. The applicant’s parents in Nepal were unable to operate the family’s business for 18 months. This impacted upon his ability to finance his course progression to his proposed Bachelor of Business degree.
In July, 2015 the applicant commenced a Bachelor of Business on the basis of discounted fees. A Subclass 500 (Student) visa was granted for this purpose on 7 May, 2017. However, the applicant ceased to be enrolled in his bachelor’s degree on 31 August, 2017.
On 15 May, 2018 the applicant was issued with a notice of intention to consider cancelling his visa. He was advised in the notice that his Provider Registration and International Student Management System records appeared to indicate that he was not enrolled in a registered course. That was significant because condition 8202 was imposed upon the applicant’s visa at the time of its grant: s.41(1) of the Migration Act 1958 (Cth), reg.2.05, and reg.500.611(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly, condition 8202(2)(a) and (b) required that the applicant “must be enrolled in a full‑time registered course” and “must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted”.
If it in fact existed, the applicant’s failure to continue to meet condition 8202(2) enlivened the first respondent’s discretionary power set out in s.116(1)(b) of the Act to cancel the applicant’s visa.
On 19 May, 2018 the applicant responded to the notice. He advised the delegate that he had come to Australia in July, 2014 to study a Diploma in Business leading to a Bachelor of Business majoring in accounting. He said that he had successfully completed the Diploma course and had enrolled in the Bachelor of Business course at Edith Cowan University in July, 2015. He stated that he had to defer his studies in February, 2016 due to his family’s financial hardship following an earthquake in Nepal. He stated he recommenced his studies, with a reduced study load, from August, 2016 and was in the process of applying to the University for another extension when he received an exclusion from ECU on the basis of his academic progress. He stated that he had appealed his exclusion, but had not received any acknowledgement or response from the university. The applicant provided an email from ECU dated 21 August, 2017 acknowledging receipt of his appeal, which advised that his appeal could not be accepted. He was requested to resubmit the appeal and comply with certain requirements that applied to his appeal.
Despite his submission against cancellation, on 6 June, 2018 a delegate of the first respondent cancelled the applicant’s visa under s.116 of the Act on the basis that the applicant no longer complied with condition 8202 and that the grounds for cancelling the visa outweighed those against.
On 11 June, 2018 the applicant lodged an application for review with the second respondent.
On about 9 July, 2018 the applicant enrolled in a 1-year full-time Advanced Diploma of Business which was due to be completed on or about 21 June, 2019.
On 5, 8 and 12 April, 2019 the applicant provided submissions and documents to the second respondent in support of his application for review. The applicant attended a hearing before the second respondent on 16 April, 2019 and provided post-hearing submissions to the second respondent on the same day.
On 26 April, 2019 the second respondent affirmed the delegate’s decision to cancel the applicant’s visa. Relying upon the applicant’s PRISMS record, which showed that the applicant had not been enrolled in a higher education course since 31 August, 2017 the second respondent found that the applicant had breached condition 8202 of his visa. The second respondent was satisfied that grounds for cancellation of the applicant’s visa existed under s.116(1)(b) of the Act.
The second respondent considered whether the applicant’s visa should be cancelled. For that purpose, the second respondent considered:
a)the factors contained in the Procedures and Advice Manual – PAM 3, “General visa cancellation powers”;
b)the applicant’s response to the notice of intention to consider cancellation;
c)the applicant’s evidence and submissions;
d)the applicant’s post-hearing submissions and evidence, including evidence of his current enrolment; and
e)the circumstances in which the ground for cancellation arose.
Taking all of the applicant’s circumstances into account, the second respondent found that the applicant’s breach of his visa conditions was significant because the applicant was no longer fulfilling the purpose for which his visa was granted and there were no extenuating circumstances. On balance the second respondent considered that it should exercise its discretion to cancel the visa. It is that decision that the applicant now seeks to review in this court for jurisdictional error.
Grounds of review
There are four grounds of review set out in the amended application filed on 24 March, 2020. The applicant no longer presses the ground numbered 1.2. The applicant’s written submissions do not conform neatly with the grounds of review set out in his amended application or the particulars specified in that application to the grounds. Given the discussion that I have set out above concerning the amendments to the application, I prefer to address the applicant’s claims by reference to the matters specified in his amended application and I have treated his written submissions as attempting to elucidate those grounds rather than raising separate grounds beyond the amended application.
The first ground of review set out in the amended application is as follows:
1. The Second Respondent constructively failed to exercise jurisdiction by misconstruing or misapplying the discretion under paragraph 116(1)(b) of the Migration Act 1958 (Cth), or failed to take into account a mandatory consideration.
Particulars
1.1. Current fulfilment of Condition 8202(2)(a)
1.1.1. The Tribunal’s discretion was enlivened under paragraph 116(1)(b) solely on the basis that the Applicant had failed to comply with Condition 8202(2)(a), requiring that the Applicant ‘must be enrolled in a full-time registered course.’
1.1.2. Although the Applicant was in breach of the Condition for 7 months, he was no longer in breach at the time of the Tribunal’s review on the merits.
1.1.3. The Tribunal failed to evaluate, as distinct from merely noting, the extent to which the Applicant’s current fulfilment of Condition 8202 weighed against cancellation of his student visa.
1.1.4. The Tribunal intended to apply the recommendations of the Procedures Advice Manual 3 – General visa cancellation powers as a proper basis for disposing of the review, but failed to effectuate that intention (Minister for Immigration v Gray [1994] FCA 225; 50 FCR 189) by not considering the extent to which the Applicant’s fulfilment of Condition 8202 weighed against cancellation of his student visa in respect of:
1.1.4.1. ‘whether the visa holder has a compelling need to travel to or remain in Australia’ (at [30]-[33]);
1.1.4.2. ‘the extent of compliance with visa conditions’ (at [34])
1.1.4.3. ‘past and present behavious (sic) of the visa holder towards the department’ (at [42])
At the outset it is necessary to say that the words “or failed to take into account a mandatory consideration” add nothing to this ground. No particular matters are mandated for consideration by a decision-maker by, or for the purposes of, s.116 of the Act.
The applicant argues that whilst it was his failure to remain enrolled in a qualifying course that engaged the discretion to cancel the visa, when the second respondent came to decide the application for review before it, the applicant was no longer in breach of that condition because he was enrolled in a new course. The applicant argues “That fact plays no part in the Tribunal’s evaluation of the criteria the Tribunal had self-selected for disposition: whether there is a compelling need to remain in Australia; the extent of compliance with visa conditions; and the past and present behaviours of the visa holder towards the department. It is only noted as miscellany – an ‘any other matter’ – at the end of its reasons. Was there a genuine intellectual engagement with the considerations the Tribunal set about considering? Did the Tribunal fulfil the task it set for itself?”
Before proceeding further, it is possible to set out some principles that are uncontroversial:
a)neither s.116 of the Act, nor the Regulations, set out any mandatory considerations for the first respondent or his delegate in the exercise of discretion to cancel a visa;
b)the discretion is confined by the subject matter, scope and purpose of the instrument by which it is granted: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and must be exercised reasonably: Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [53]-[54];
c)the “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s.116(1)(b) of the Act is a state of mind which must be formed reasonably and on a correct understanding of the law: Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137];
d)policy guidance on the exercise of the discretion to cancel a visa has been published by the first respondent’s department and is found in the Procedures Advice Manual 3. As to that document:
i)it does not have the effect of a direction pursuant to s.499 of the Migration Act, which would bind a person or body having functions or powers under the Act as to the performance of those functions or the exercise of those powers;
ii)by its terms it provides that it must be taken into account by decision makers, but is not given the force of law: Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641 at [28]–[29]; Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15]–[16]; El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 at [45]; COT15 v Minister for Immigration and Border Protection (2015) 236 FCR 148 at [12];
iii)a departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else: Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438 at [89].
It follows from those uncontroversial principles that to the extent that, by this ground, the applicant argues that the second respondent failed to take into account a mandatory consideration (which seems to be his alternative claim) that claim cannot succeed. There were no considerations that were mandated to be taken into account by the second respondent when considering whether to cancel the applicant’s visa pursuant to s.116 of the Act.
The applicant argues that the second respondent attempted to apply the PAM3 criteria but did not apply it effectively or at all. The PAM3 criteria that were relevant were identified by the second respondent through the use of subheadings in its decision record. In his written submissions, the applicant identifies each of those criteria and proceeds to address each one.
There is no dispute that the applicant was in breach of condition 8202 of his visa at the time of the decision to cancel his visa on 6 June, 2018. However, the applicant asserts that by the time of his submissions to the second respondent dated 5 April, 2019 the applicant had “applied for and been granted study rights and has enrolled in an Advanced Diploma course in Accounting at Stotts College, which he will complete in July, 2019”.
The first respondent points out in his submissions that the applicant, in fact, did not put before the second respondent any evidence that demonstrated his enrolment in the Advanced Diploma of Business course at Stotts College. All that was before the second respondent was an assertion in written submissions that the applicant had “applied for and been granted study rights and has enrolled in an Advanced Diploma course in Accounting at Stotts College, which he will complete in July 2019”. A copy of a letter of offer from Stotts College for that course and a subsequent Bachelor of Business (Accounting) was provided to the second respondent but, as the first respondent points out, the letter of offer pre-dated the applicant’s response to the notice of intention to consider cancellation by one day and the acceptance of the offer section of the form had not been completed by the applicant or anyone on his behalf. No proof of enrolment in the Advanced Diploma was provided. No confirmation of enrolment was provided as noted by the second respondent in its reasons. Nor was any academic transcript provided to show progress in the course.
Nonetheless, at [46] the second respondent seems to have proceeded on the basis that the applicant was so enrolled. It certainly acknowledged his enrolment and recorded that course will lead to a Bachelor degree in Accounting. It had also done so earlier in its reasons: [13], [15] and [16]. The second respondent also recorded that this course of study was the same type of course he had completed in 2015.
I accept the first respondent’s submissions that these references indicate that the second respondent was aware of and gave consideration to the fact that the applicant said he was, at the time of the second respondent’s hearing, enrolled in a course of study.
In my view, the second respondent clearly gave consideration to the fact that the applicant claimed (and the second respondent appeared to accept) that he was enrolled in a relevant course of study at the time the matter was considered by the second respondent. However, the second respondent’s reasons for decision made clear that it was concerned with:
a)the applicant’s seven month study gap (between the cancellation of his enrolment at ECU and his enrolment in the course at Stotts College);
b)whether the applicant was filling the purpose of his travel to and stay in Australia; and
c)whether the applicant was engaging in the primary purpose of study for which his visa was granted.
According to the second respondent’s reasons, it was significant that the applicant had re-enrolled in the same course of study at the time of the second respondent’s consideration as he had completed in 2015. Although the second respondent does not say so in terms, the clear inference to be drawn from [46] of its reasons is that it gave this matter little weight.
There is nothing in the second respondent’s reasons to suggest that it did not weigh the considerations that it found relevant one against the other. The matters raised by the applicant in particular 1.1.4 were all set out and considered by the second respondent as was the matter concerning the applicant’s then current enrolment. The second respondent considered the matters set out in PAM3, which were plainly relevant. The applicant does not contend that there was any other relevant consideration that the second respondent failed to consider, beyond the assertion it failed to consider the fact he was in compliance with condition 8202 at the time of the second respondent’s hearing.
The applicant did not make any submissions to the second respondent to the effect that the completion of the Advanced Diploma course constituted a compelling need for him to remain in Australia. He asserts such a case now but the submissions made to that end, are more suggestive of an argument that the second respondents decision was legally unreasonable, a case which the applicant does not put and which, in my view could not in any event succeed.
In my view, there is no basis to infer that the second respondent failed to consider a relevant matter in this case. This ground reveals no jurisdictional error on the second respondent’s part.
The next ground of review set out in the amended application is as follows:
1.3. Finding that ‘serious mental illness’ likely to preclude work and study
1.3.1. The Tribunal found that ‘[w]hilst continued study and employment do not necessarily mean the applicant did not suffer mental health issues, the Tribunal considers it unlikely he would have been able to maintain study and work over an extended period if he was [sic.] experiencing serious mental health issues.’
1.3.2. There was no evidentiary foundation at all for that finding. Nothing in the Administrative Appeals Tribunal Act 1975 (Cth) authorises a decision-maker sitting in the Migration Division to substitute its own opinion on specialist medical matters
The applicant’s argument is that the second respondent has substituted its own opinion on specialist medical matters in circumstances where there was no medical evidence before it to justify the formation of that opinion. The applicant’s arguments rely upon paragraphs [47] and [48] of its reasons. They are in the following terms:
47. Following the hearing the Tribunal received a further written submission from the applicant’s representative. The submission said the applicant had been overwhelmed by his circumstances and referred to his mental health issues which made him unable to act in a manner which would have been better for him in the long term. In his response to the NOICC the applicant referred to suffering mental stress from the losses he had experienced. No medical evidence was provided to substantiate that the applicant experienced any mental health issues prior to the cancellation of his enrolment.
48. The Tribunal noted that following the earthquake the applicant was able to undertake study in semester 2, 2015. He was able to request and obtain a deferral in semester 1, 2016. He was able to undertake study in semester 2, 2016 and semester 1, 2017. The applicant was able to maintain employment for at least 12 months prior to cancellation of his enrolment. His evidence was that he worked for 12 months without pay. Whilst continued study and employment do not necessarily mean the applicant did not suffer mental health issues, the Tribunal considers it unlikely he would have been able to maintain study and work over an extended period if he was experiencing serious mental health issues.
Before considering this matter further, it is necessary to set out some uncontroversial principles. No jurisdictional error will arise if a decision-maker makes an error of fact, unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [52]-[54] and [68]. An error of fact based on a misunderstanding of evidence or the overlooking of an item of evidence in considering an applicant’s claims is not a jurisdictional error, so long as the error, whichever it be, does not mean that the decision-maker has not considered an applicant’s claim: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28] and the authorities there cited.
The second respondent observed that “no medical evidence was provided to substantiate that the applicant experienced any mental health issues prior to the cancellation of his enrolment”. It then recited the applicant’s evidence about his study and working history. It then recorded that it was “unlikely” that the applicant would have been able to maintain study and work over an extended period if he were experiencing serious mental health issues. The first respondent argues that in doing so, the second respondent was not “substitut[ing] its own opinion on specialist medical matters”. I think that submission is correct. What the second respondent appeared to be doing was pointing out the inconsistency between the applicant’s claims that he was overwhelmed by his circumstances by reference to his mental health issues and the fact that he had been robbed of his capacity to act in a manner which would have been better for him in the long-term on the one hand and the study and work he had undertaken on the other. That was part of the weighing process undertaken by the second respondent of the applicant’s claims and his evidence to support them. It was particularly relevant given the applicants claim that due to his stress he would find it easier to do an Advanced Diploma course while he recovers from the mental stress of all his losses, rather than a higher level degree.
I accept the first respondent’s submission that the second respondent was not forming its own medical opinion in circumstances where there was no medical evidence before it, but rather was making a more general observation about the apparent inconsistency in the applicant’s claims.
Moreover, even if the second respondent was in error to approach the argument in that way and indeed made the error about which the applicant complains, the error is not one which goes to the second respondent’s jurisdiction. It is clear from the second respondent’s reasons that it considered the applicant’s claim that he was suffering from mental illness in the context in which it was made.
In my view, this ground of review reveals no jurisdictional error by the second respondent.
The final ground of review is in the following terms:
1.4. Misunderstanding of legal consequences of exercise of discretion to cancel
1.4.1. The Tribunal directed itself that ‘a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189’. (at [44]).
1.4.2. But the legal consequence of cancellation under section 189 of the Migration Act 1958 (Cth) was that the Applicant must be detained, and a positive duty is imposed upon all officers of the First Respondent and all members of the Defence Force so to do.
As the applicant points out, he held a bridging visa E at the time of the second respondent’s decision. In the event that the decision to cancel his student visa was affirmed, his bridging visa would cease 28 days after notification by the second respondent of its decision. At that point, the applicant would automatically become an unlawful non-citizen and must be detained. As the applicant points out, that was the unavoidable legal consequence of aided determination to affirm the decision under review and from a legal point of view, that conclusion is not affected by the prospect that the applicant might apply for another bridging visa.
What the second respondent said was this:
44. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful noncitizen who could be detained and removed from Australia pursuant to s.189. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant's favour.
I do not consider that in phrasing its reasons in the way in which it did, the second respondent misunderstood the legal consequences for the applicant if it affirmed the decision under review. The second respondent was clearly aware that a consequence of the cancellation of the applicant’s visa and upon him becoming an unlawful non-citizen was that he would become subject to the application of s.189 of the Act. It referred to that section in the paragraph I have just extracted above. Whilst it is true that it phrased its reasons in terms of possibilities (by use of the word “could”) rather than certainties I do not think that that indicates that the second respondent misunderstood the legal consequences of the exercise of its discretion to cancel. Although [44] of the second respondent’s reasons appears under the heading “Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the act which prevent the person from making a valid visa application without the ministers intervention” I do not think that the second respondent was embarking upon an exegesis of the legal meaning of s.189 of the Migration Act.
As the second respondent points out, affirmation of the decision under review by the second respondent did not automatically mean that the applicant was subject to s.189 of the Act. His bridging visa would only cease 28 days after notification by the second respondent of its decision. In that 28 day period, the applicant might:
a)apply for another visa, as he was permitted to do;
b)he might have sought ministerial intervention, as he was permitted to do; or
c)he might have elected to voluntarily leave Australia and not be subject to involuntary removal.
I accept the first respondent’s submission that the second respondent’s reasons demonstrate that it was also aware that, unless the applicant satisfied the requirements of any relevant public interest criteria, he would also be subject to a three-year exclusion period if his visa was cancelled. It was not for the second respondent to determine whether he would in fact meet any relevant public interest criteria. Thus, it was unexceptional that the second respondent concluding that the applicant “could” be subject to a three-year exclusion period if his visa was cancelled.
This ground of review does not establish jurisdictional error.
Conclusion
In my view, the grounds of review relied upon by the applicant do not establish any jurisdictional error on the second respondent’s part. The amended application for review filed on 24 March, 2020 must be dismissed with costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 December, 2020
Associate:
Date: 3 December, 2020
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