Sharma v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1111
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1111
File number(s): MLG 1243 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 29 November 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Temporary (Class TU) (subclass 573) Higher Education Sector visa – cancellation of student visa – consideration of whether the Tribunal failed to put the applicant on notice of its views about impact of applicant’s mother’s health issues and hardship on applicant and/or his mother if his visa were cancelled – finding that these were not matters that the Tribunal was required to put to the applicant – further finding that Tribunal’s conclusions were otherwise open on the evidence before it – where applicant effectively seeks merits review – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 353, 357A, 359A Cases cited: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) (2004) 236 FCR 549
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 7 September 2023 Date of hearing: 7 September 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr S Mak of the Australian Government Solicitor ORDERS
MLG 1243 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PARVEEN SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 8 May 2018 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 6 April 2018. By that decision, the Tribunal affirmed the decision of a delegate of the then Minister for Home Affairs (‘the Minister’) to cancel the applicant’s Temporary (Class TU) (subclass 573) Higher Education Sector visa (‘student visa’) pursuant to section 116 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a citizen of India.[1] On 7 February 2014, the applicant was granted a student visa.[2]
[1] Court book at page 45.
[2] Court book at page 13.
Notice of Intention to Consider Cancellation of student visa on 29 March 2017
On 29 March 2017, the applicant received a Notice of Intention to Consider Cancellation (‘NOICC’) of his student visa on the basis that he was not a genuine student under section 116(1)(fa)(i) of the Act.[3] In that notice, the applicant was advised of the basis on which cancellation was being considered.
[3] Court book at page 13.
Relevantly, after setting out in detail the applicant’s study history whilst in Australia, the NOICC stated that:
PRISMS indicates you have not maintained the study plan you outlined during the application for your TU573 Higher Education Sector Student visa and that you do not hold enrolment at the higher education sector level as required by your visa.
Student visas are granted for the purposes of studying towards and achieving an educational qualification in Australia. Your lack of academic progress over a substantial period of time and considerable period of time not studying while continuing to remain onshore indicates you do not appear to be a genuine student as it appears your primary intention is not, or is not likely to be, to undertake study.[4]
[4] Court book at page 15.
On 11 April 2017, the applicant’s migration agent provided a written submission on behalf of the applicant in response to the NOICC.[5] Relevantly, it was submitted that:
·the applicant commenced his diploma of business at James Cook University in March 2014 and continued in that course until December 2014;[6]
·in the second half of 2014, the applicant’s mother ‘suffered financial shortage due to her medical conditions’, which resulted in the applicant being unable to continue to pay tuition and maintain his enrolment;[7]
·in December 2014, the applicant then enrolled in the IELTS preparation course with Sarina Russo Schools Australia at a much lower fee;[8]
·from January 2015, the applicant suffered back pain and attended upon a medical practitioner, but due to his poor attendance, Sarina Russo Schools Australia cancelled his enrolment in April 2015;[9]
·in March 2015, the applicant’s health had improved and he enrolled in a Bachelor of Business at Holmes Institute, however, this enrolment was cancelled in August 2016 due to him failing to re-enrol within a compulsory study period;[10]
·there was a dispute between the applicant and Holmes Institute which was resolved in December 2016, when he was re-issued a Confirmation of Enrolment (‘CoE’) upon payment of outstanding fees;[11]
·the applicant says that although he paid the fee, he did not receive the re-issued CoE and therefore his CoE was again cancelled on 23 December 2016;[12] and
·the applicant then commenced an Advanced Diploma of Business at Skills Institute Australia in March 2017.[13]
[5] Court book at pages 27 to 30.
[6] Court book at page 27.
[7] Court book at page 27.
[8] Court book at pages 27 and 28.
[9] Court book at page 28.
[10] Court book at page 28.
[11] Court book at page 28.
[12] Court book at page 28.
[13] Court book at page 28.
In his April 2017 submissions, the applicant conceded that he had not completed any course of study since he arrived in Australia in March 2014 on a student visa.[14]
[14] Court book at page 28.
However, he says said that his lack of academic progress was due to various factors beyond his control.[15] This included a lack of funds from his mother, his own health issues and then an enrolment issue with Holmes Institute.[16] He also maintained that his CoE with Holmes Institute was wrongfully cancelled.[17]
[15] Court book at pages 28 to 29.
[16] Court book at page 29.
[17] Court book at pages 29 to 30.
Relevantly, the applicant went on to say that he had since contacted Christian Heritage College and had been offered enrolment in a bachelor’s course which he was due to commence with that institute once he completed his advanced diploma course at Skills Institute Australia.[18]
[18] Court book at page 29.
It was submitted for the applicant that he has always been a genuine student in Australia and he wishes to complete his tertiary studies here.[19]
[19] Court book at page 29.
It was further submitted for the applicant that:
·he has always been truthful and co-operative in his dealings with the Department of Immigration and Border Protection (‘the Department’);[20] and
·if he were forced to return home he would face significant hardship – he will bring shame to his family and it would be very difficult for him to secure employment over there as he has not completed his tertiary studies in Australia.[21]
[20] Court book at page 29.
[21] Court book at page 29.
Cancellation of student visa on 13 April 2017
On 13 April 2017, a delegate of the Minister notified the applicant that his visa had been cancelled under section 116 of the Act effective from that date.[22]
[22] Court book at pages 47 to 60.
Application for review in Tribunal on 20 April 2017
On 20 April 2017, the applicant lodged a review application of the delegate’s decision in the Tribunal.[23] The lodgement of the application was acknowledged by the Tribunal on 24 April 2017.[24]
[23] Court book at pages 61 and 62.
[24] Court book at pages 65 and 66.
By letter dated 11 January 2018, the applicant was invited to appear before the Tribunal to make submissions and give evidence at a hearing to be held on 21 February 2018.[25] At the request of the applicant, the hearing was rescheduled and ultimately occurred on 22 March 2018.[26]
[25] Court book at pages 105 to 108.
[26] Court book at pages 112 to 123; Court book at pages 129 to 131.
The applicant attended the Tribunal hearing assisted by his representative.[27] His wife and another support person also attended the hearing with the applicant.[28] The applicant was provided with time following the hearing to provide further medical evidence regarding his mother’s health condition.[29]
[27] Court book at page 129.
[28] Court book at page 129.
[29] Court book at pages 132 to 134.
Further information was provided by the applicant’s representative under cover of an email dated 26 March 2018.[30] That information confirmed that the applicant’s mother had an operation on 10 August 2016. The note further provides:
… Post operative Period was unevent full and discharged under satisfactory condition. (sic)[31]
[30] Court book at pages 132 to 134.
[31] Court book at page 134.
On 9 April 2018, the applicant was informed that the Tribunal had affirmed the delegate’s decision on 6 April 2018.[32]
[32] Court book at pages 137 and 138.
TRIBUNAL DECISION
The Tribunal’s decision record of 6 April 2018 is set out at pages 139 to 145 of the court book.
At paragraphs [1] to [5] of its decision record, the Tribunal set out the background to the matter.
At paragraph [7], the Tribunal member set out the relevant principles which apply to a possible cancellation of a visa under section 116 of the Act.
At paragraphs [12] to [15], the Tribunal member summarised the evidence provided by the applicant at the Tribunal hearing. At paragraph [16], the Tribunal set out the various documents provided by the applicant to the Tribunal prior to the hearing, and at paragraph [17], the Tribunal referred to the post‑hearing submission received from the applicant regarding his mother’s operation.
At paragraph [18], the Tribunal member noted that the Tribunal had also had regard to the applicant’s April 2017 response to the NOICC.
Relevantly, at paragraph [19], the Tribunal said:
19.On the evidence before it, the Tribunal finds that the applicant has failed to complete any higher sector education courses and has completed only one lower sector education course since he commenced study in Australia in 2014. The Tribunal notes that the applicant has given a number of explanations excusing his inability to study, including lack of finances due to his mother’s ill health, concerns regarding his mother’s ill health, poor advice from the registered migration agent, and a failure on the part of the Holmes Institute providing with a certificate of enrolment as promised. The Tribunal considers that if the applicant were a genuine student he would have made more progress in relation to his studies.
The Tribunal was therefore satisfied that a ground for cancellation existed under section 116(1)(fa)(i) of the Act.[33]
[33] Tribunal decision record dated 6 April 2018 at paragraph [20].
The Tribunal then went on to consider whether it ought exercise its discretion to cancel the applicant’s visa.[34] In considering whether to exercise its discretion, the Tribunal considered the various matters identified in the Department’s Procedures Advice Manual (‘PAM3’).[35]
[34] Tribunal decision record dated 6 April 2018 at paragraphs [21] to [37].
[35] Tribunal decision record dated 6 April 2018 at paragraphs [22] to [34].
In particular, the Tribunal considered the following factors:
·the Tribunal accepted that when the applicant first came to Australia, he did intend to study in the business field consistent with the visa, weighing this factor in the applicant’s favour;[36]
·the Tribunal accepted that the applicant experienced some difficulties in relation to his studies which were beyond his control, however, found that issues relating to his mother’s health and his own ill health occurred after he was already in breach of his visa obligations and therefore gave very limited weight to these factors as it did to the difficulties that the applicant had with Holmes Institute;[37]
·the Tribunal also accepted that the applicant would face some hardship if the visa was cancelled as he would not be able to reapply to study in Australia for a period of time, and that his family would be disappointed, but gave little weight to this factor as it did to the fact that his wife, who is also on a student visa in Australia, would return to India with the applicant if his visa is cancelled;[38]
·there was no evidence that the applicant had been untruthful or uncooperative with the Department, which was counted in the applicant’s favour;[39]
·there was no evidence that the applicant had not complied with any other visa conditions which was further counted towards the applicant;[40] and
·finally, the Tribunal considered that if the visa was cancelled, the applicant would become an unlawful non-citizen and be liable to removal, moreover, he would be subject to a three-year exclusion period on any temporary visa application.[41]
[36] Tribunal decision record dated 6 April 2018 at paragraph [22].
[37] Tribunal decision record dated 6 April 2018 at paragraphs [26] to [27].
[38] Tribunal decision record dated 6 April 2018 at paragraph [28].
[39] Tribunal decision record dated 6 April 2018 at paragraph [29].
[40] Tribunal decision record dated 6 April 2018 at paragraph [25].
[41] Tribunal decision record dated 6 April 2018 at paragraph [33].
Against these factors, however, the Tribunal found at paragraphs [23] to [24] that:
23.The applicant was granted a student visa subclass 573 to undertake a course of study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. The Tribunal notes that between 22 August 2016 and 13 March 2017, the applicant has not held a certificate of enrolment, and that until March 2018, has not held enrolment for a course at higher education sector level appropriate to his visa since 23 December 2018.
24.The Tribunal notes that the non-compliance has occurred over a substantial period of time and places weight upon this.
The Tribunal also identified a number of other factors in the PAM3 which were not relevant to this matter.[42]
[42] Tribunal decision record dated 6 April 2018 at paragraphs [30] to [32].
The Tribunal then found at paragraphs [36] to [37] that:
36.The Tribunal does not find it persuasive that a genuine student would take no steps regarding having a current confirmation of enrolment between 22 August 2016 and 2 April 2017, a period of more than seven months.
37.Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
At paragraph [38], the Tribunal therefore affirmed the decision of the delegate cancelling the applicant’s student visa.
PROCEEDINGS IN THIS COURT
On 8 May 2018, the applicant lodged his application in this court seeking judicial review of the Tribunal’s decision.
On 12 June 2019, orders were made permitting the applicant to file and serve any amended application with proper particulars and any written submissions 28 days prior to the final hearing. Notwithstanding these orders, the applicant has not filed any amended application or written submissions.
On 26 May 2023, further orders were made for the name of the first respondent to be changed to reflect current administrative arrangements.
The hearing ultimately proceeded before me on 7 September 2023. The applicant appeared on his own behalf.
GROUNDS OF REVIEW
In his application dated 8 May 2018, the applicant raises the following five grounds of review:
1.The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
2.The Tribunals (sic) reasoning is unfairly based on unsound reasoning. For example, the Tribunal member gave little weight to my circumstances stating my mother’s health issues post dated my visa breach. The Tribunal Member did not put this issue to me. If she did I would have responded that my mother was unwell for a significant period of time leading up to and post the operation.
3.The Tribunal Member placed too much weight on my failure to complete a bachelor’s degree disregarding the issues I have faced and the fact that I have completed a course at a vocational level.
4.The Tribunal Member found that my Mother and I would not suffer any degree of hardship. I was not provided with the opportunity to demonstrate this or respond to this.
5.The Tribunal Member failed to give weight to the impact of a three-year ban on me.
Applicant’s oral submissions at hearing on 7 September 2023
Before turning to consider the grounds of review, I note again that the applicant appeared on his own behalf at the hearing before me. When asked what submissions he wished to make in support of his application, the applicant said:
·he came to Australia to undertake studies;
·his CoE was cancelled incorrectly and this resulted in a period during which time he was not enrolled in a course of study;
·he then downgraded the course that he enrolled in and he was unaware that this would put his visa at risk;
·although he did not complete his studies prior to the cancellation of his visa, he had studied for two and half years in Australia and the only reason he was not able to complete his studies was because his CoE had been incorrectly cancelled;
·the Tribunal did not ask for all documents regarding his mother’s medical condition, and had they done so, he could have provided more information;
·his mother is a single mother and he is her only child and therefore there would be hardship for her if his visa was cancelled and he had to return home without completing his studies here; and
·he is now married and has a six-month old infant and therefore the three-year ban would have a significantly negative impact on his family.
Applicant’s affidavit affirmed on 8 May 2018
In addition to these matters raised by the applicant in his oral submissions before me, I have also had regard to the content of the affidavit he filed in support of his application affirmed on 8 May 2018.[43]
[43] Applicant’s affidavit affirmed and filed on 8 May 2018.
Relevantly, that affidavit contains the following:
7.The Tribunal stated in its decision record that between 13 March 2014 and 13 April 2017, that I had not completed any courses of study. While I agree that I failed to complete a course at a higher education sector level I do however submit that I had enrolled and completed an Advanced Diploma of Business. Whilst this study was not at the appropriate level I was unable to complete a course at the higher educator sector level due circumstances which were completely beyond my control (sic).
8.While the Advanced Diploma of Business is not at the appropriate level it does demonstrate that I am a genuine student whose primary purpose is to study in Australia.
9.Further, I did everything within my power to be re-admitted.
…
13.The Tribunal Member stated that the issues flowing from my mother’s health significantly postdate the time at which I first breached my visa condition and so placed little weight on this factor. I believe that the Tribunal Member failed to adequately consider my personal circumstances and should have put this issue to me so that I could respond adequately and outline that my Mother was ill for a significant time leading up to the operation and post the operation. Further, as stated my father passed, my sister lives a significant distance from my Mother – this stressed me significantly. If the Tribunal Member was going to draw such a conclusion she should have at the very least have put the issue to me and allowed me to respond.
14.In addition, the Tribunal Member stated that she did not consider any evidence that I or my mother would suffer any significant degree of hardship. I believe this conclusion is unfounded and should have been put to me. If the Tribunal Member put this to me and gave me a chance to respond, I would have responded to this.
15.The Tribunal Member gave little consideration on the three-year exclusion ban and its effect on my wife and I. She merely stated that this factor had only limited weight and does not outweigh other factors that point to the cancellation. This conclusion is unjustified, and the other factors are not adequately discussed they are merely identified through a conclusion based on an inference drawn by the Member without giving me a chance to respond.
16.I believe that the decision was unfair, that the Tribunal Member did not act according to substantial justice and merits of the case and acted in a way that was unfair and unjust.
17.I further feel that the Tribunal Member has placed too much weight on my failure to not have successfully completed a bachelor’s degree since my arrival in Australian (sic) and has ignored the evidence that clearly demonstrates that I am and always have been a genuine student.
18.In light of the above, I believe that the law and guidelines have been selectively applied and the principles of procedural justice have been undermined with the Tribunal Member drawing unreasonable and illogical inferences. …
I have had regard to the applicant’s oral submissions as well as the contents of his affidavit in considering this application.
I will now turn to consider each ground in turn.
Ground 1
As outlined above, by ground 1, the applicant claims that:
1.The Tribunal failed to act according to substantial justice and merits of the case, in breach of s353(B) of the Migration Act 1958 and/or failed to act in a way that is fair and just, in breach of s357A(3) of that Act.
The scope and effect of section 353(b) of the Act was considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, where his Honour Chief Justice French said:
15.Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) “describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals”. Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.
16.Section 353(2) does not import substantive common law requirements of procedural fairness. …
Section 357A of the Act provides that Division 5 of Part 5 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with. Relevantly, section 357A(3) provides that ‘In applying this Division, the Tribunal must act in a way that is fair and just’.
By his application, the applicant does not identify how he says that the Tribunal acted unfairly towards him in the conduct of the review application before it. However, having regard to the matters raised in the applicant’s affidavit, it might be said that the applicant’s complaint is that the Tribunal failed to comply with its procedural fairness obligations.
As stated, section 357A sets out the requirements of the natural justice hearing rule in relation to matters before the Tribunal. In this case, as outlined above, the applicant was invited to attend a hearing before the Tribunal, which he attended and at which he was represented. In addition, he was provided with the opportunity to provide post-hearing documents and submissions, which he did.
There is nothing on the material before me to evidence a failure to afford the applicant an opportunity to be heard.
Ground 1 is therefore not made out.
Grounds 2 and 4
Grounds 2 and 4 complain about the Tribunal’s reasoning process, and in particular, the failure to put the applicant on notice of its views about the applicant’s mother’s health issues and about the hardship on the applicant (and his mother) if his visa were cancelled.
When regard is had to the applicant’s affidavit filed in support of his application, as well as his oral submissions to this court, it appears that his complaint is that he was not given an opportunity to provide further evidence about his mother’s health condition and the impact that it had on him and his ability to undertake his studies. Similarly, the applicant claims that the Tribunal did not provide him with an opportunity to respond to its concerns about the hardship that he would suffer if his visa were cancelled.
Relevantly, as stated above, the applicant suggests that the Tribunal’s conclusion reached about the hardship that he (and/or his mother) would suffer was unfounded and that he should have been given an opportunity to respond.
As submitted by the representative for the Minister, these grounds are unfounded.[44] As noted in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549, when considering section 424A of the Act, being the equivalent in Part 7 of section 359A, Justices Finn and Stone said:
23.Section 424A(1)(a) has two presently relevant requirements. First the Tribunal must possess “information”. Secondly, the Tribunal must consider that that information “would be the reason, or part of the reason” for affirming the decision under review.
24.As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:
(i)the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness … However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice …
(ii)the word “information” in s 424A(1) … refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal … and
(iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps … (emphasis added)
[44] Minister’s Outline of Submissions filed on 28 August 2023 at paragraphs [26] and [27].
In this case, it is clear from paragraph [26] of the Tribunal’s reasons that the Tribunal had regard to the applicant’s evidence about the impact on him of his mother’s ill health and the associated financial pressures that this had for him.
The conclusions reached in paragraph [27] of the Tribunal’s decision record were no more than the Tribunal’s subjective appraisal of the applicant’s evidence and were not matters which the Tribunal was required to put to the applicant under section 357A.
Similarly, at paragraph [28], the Tribunal had regard to the applicant’s evidence about the hardship that he and his mother would suffer if his visa were cancelled. In particular, the Tribunal acknowledged ‘… on the evidence before it that the applicant and his family members, in particular his mother and wife may well suffer disappointment if the visa is cancelled’.
However, the Tribunal went on to say that it did not:
28.… consider there is any evidence before it that the applicant and his mother will suffer any significant degree of hardship (financial, psychological or emotional) if his visa is cancelled and has given little weight to this factor in considering whether to cancel the visa.[45]
[45] Tribunal decision record dated 6 April 2018 at paragraph [28].
This too reflects no more than an appraisal by the Tribunal of the evidence before it. There was no obligation on the Tribunal to put this to the applicant under section 357A.
To the extent that these grounds are intended to be a complaint that the Tribunal had an obligation to inquire into the impact on the mother’s health and hardship that she would suffer if the applicant’s visa were cancelled, there too is no obligation on the Tribunal to make such inquiries.
I also note that in his initial submissions in response to the NOICC, prepared by the applicant’s then migration agent, the applicant provided the following submissions. First, in relation to the impact of his mother’s health on the applicant’s ability to continue his studies, the applicant’s migration agent said:
Towards the second half of year 2014, Mr Sharma’s mother suffered financial shortage due to her medical conditions. As a result, Mr Sharma could not receive the study funds from his mother and Mr Sharma was not able to pay tuitions to JCU to maintain his enrolment.[46]
[46] Court book at page 27.
The applicant’s migration agent then said:
It is submitted, however, that Mr Sharma’s lack of academic progress over a substantial period of time was due to a combination of different reasons beyond his control: lack of funds due to his mother’s health issue, her own health conditions and more importantly, the enrollment (sic) issue with Holmes Institute, which all had adverse effect on his course and academic progress.[47]
[47] Court book at pages 28 to 29.
Further, in relation to the degree of hardship the applicant claimed he and his family would suffer, the applicant’s migration agent also said that:
… Should be forced to go back [to] his home country as a result of the cancellation of his visa, Mr Sharma will find himself in a very difficult situation (sic). He would bring shame to his family and his mother. …[48]
[48] Court book at page 29.
Notwithstanding having raised these issues before the delegate, the applicant did not produce any independent evidence in support of either his mother’s ill health or the potential impact on his mother of the cancellation of his visa beyond this until he was asked about it at the Tribunal hearing. He was, nonetheless, given the opportunity to provide further evidence in relation to these matters, as stated above.
As also previously outlined, the applicant’s legal representative provided a post-hearing submission, including documents relating to the applicant’s mother’s medical condition which was said to have impacted the applicant’s ability to undertake his studies.[49] That document is referred to earlier in these reasons and does not detail any lengthy illness prior to the operation referred to or any post-operative complications.
[49] Court book at page 132 and following.
The applicant has an obligation to put his case to the Tribunal and to put before the Tribunal such evidence and submissions that would support his claims. As stated earlier, he was provided with an opportunity to do so and it is apparent from the Tribunal’s reasons, when read fairly, that the Tribunal considered the evidence given by the applicant.
At paragraph [19] of its decision record, the Tribunal notes that the applicant had sought to explain his lack of academic progress, including by reference to his mother’s ill health. In this regard, the Tribunal said ‘[t]he Tribunal considers that if the applicant were a genuine student he would have made more progress in relation to his studies…’.[50]
[50] Tribunal decision record dated 6 April 2018 at paragraph [19].
It is clear from this that the Tribunal considered the applicant’s evidence, including that relating to the impact on him of his mother’s ill health, but did not accept that this provided an adequate reason for his lack of academic progress.
Similarly, in relation to the issue of whether the Tribunal ought exercise its discretion to cancel his visa, the Tribunal again had regard to the applicant’s evidence about the impact on him of his mother’s ill health.[51] However, it concluded that these matters post-dated his non-compliance with the conditions of his visa.[52] That finding was reasonably open on the evidence before the Tribunal and it was not for the Tribunal to interrogate the applicant further, for example, as to when his mother first became ill. Moreover, in any event, the Tribunal did give some weight to this factor, albeit limited weight.[53]
[51] See, for example, Tribunal decision record dated 6 April 2018 at paragraph [26].
[52] Tribunal decision record dated 6 April 2018 at paragraph [27].
[53] Tribunal decision record dated 6 April 2018 at paragraph [27].
For each of these reasons, grounds 2 and 4 are not made out.
Ground 3
By ground 3 the applicant takes issue with the weight given by the Tribunal to the applicant’s failure to complete a bachelor’s degree and asserts that insufficient weight was given to the fact that he had completed a vocational level program.
The Minister submits that the weight to be given to evidence is a matter for the Tribunal, provided that the Tribunal’s assessment is not illogical or unreasonable, and that there is no evidence to suggest that the Tribunal’s reasoning in this regard was illogical or unreasonable.[54] I agree with the Minister’s submission on this point.
[54] Minister’s Outline of Submissions filed on 28 August 2023 at paragraphs [29.1] to [29.2]; Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
As stated, the applicant was granted a student visa. His failure to complete and/or progress in the higher education course that he had indicated he would enrol in when applying for the visa was relevant to the Tribunal’s consideration.
The Tribunal’s reasoning set out in paragraphs [19], [23] and [24] of its decision record was open on the evidence before it, and the conclusions reached had a probative and rational basis.
Finally, it is clear from a fair reading of the Tribunal’s reasons as a whole that it did consider the applicant’s circumstances and the fact that he had completed a vocational educational course. Notwithstanding that, the Tribunal concluded that the applicant was not a genuine student. For the reasons given, this conclusion was reasonably open on the material before the Tribunal.
This ground is effectively taking issue with the conclusions reached by the Tribunal and invite the court to engage in impermissible merits review.
In circumstances where the applicant has not identified any specific error, nor is there anything on the face of the decision record or the material before the court to suggest that there has been any illogicality or unreasonableness in the sense required to justify a finding of jurisdictional error, ground 3 is not made out.
Ground 5
Ground 5 asserts that the Tribunal failed to give regard to the impact on him of the prohibition on him of applying for a temporary visa for three years.
This ground is not made out at a factual level. It is clear from the Tribunal’s reasons that it did have regard to the impact on the applicant of this prohibition.
At paragraph [33] of the Tribunal’s reasons, it expressly dealt with this issue when it said:
33.… The Tribunal has also taken into account the fact that the applicant would face being subject to PIC 4013 and a three-year exclusion period on temporary visas, but the Tribunal gives this factor only limited weight in his favour and finds it does not outweigh other factors that point to the cancellation of the visa.
This finding was open on the evidence before the Tribunal. There is no jurisdictional error disclosed in the Tribunal’s findings or reasoning in this regard.
Again, this ground simply takes issue with the conclusion reached by the Tribunal and again seeks impermissible merits review.
For these reasons, ground 5 is not made out.
CONCLUSION
Having found that none of the applicant’s grounds of review are made out, I make the orders as set out at the commencement of these reasons.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 29 November 2023
0
4
1