Sharma v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 939
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 939
File number(s): ADG 217 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 15 November 2022 Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – citizen of India – Student Higher Education Subclass 573 visa – visa cancelled - where decision to cancel made on basis of failure to maintain enrolment in a registered course – whether too much weight placed on certain facts – whether impermissible merits review – where a failure to particularise grounds – whether denial of procedural fairness – whether education provider ought to have given notice of failure to achieve satisfactory course progress –futility – where visa long since expired – where visa class no longer exists – whether jurisdictional error Legislation: Education Services for Overseas Students Act 2000 (Cth) s 20
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.06
Migration Act 1958 (Cth) ss 31, 45, 46, 116, 359A, 359AA, 360, 474, 476
Migration Regulations 1994 (Cth) Sch 1, Pt 2, cl 1222, Sch 8 condition
Cases cited: AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 299
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Jiang v Minister for Immigration & Anor [2007] FMCA 215
Jiang v Minister for Immigration & Citizenship [2007] FCA 907
Kemei v Minister for Immigration & Anor [2019] FCCA 1735
Khattri v Minister for Immigration & Anor [2018] FCCA 768
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513; (1999) 161 ALR 53; (1999) 53 ALD 315
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
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, (1996) 70 ALJR 568; (1996) 136 ALR 481: (2016) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Patel v Minister for Immigration & Anor [2014] FCCA 2000
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278
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
Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868
Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of last submission/s: 24 October 2022 Date of hearing: 24 October 2022 Place: Heard in Perth, delivered in Adelaide Applicant: In person by phone via CISCO Webex Counsel for the First Respondent: Ms B Rayment via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 217 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEEPANSHU SHARMA
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:
15 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed on 19 June 2019 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 filed on 19 June 2019 for judicial review (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”), by the applicant, Mr Deepanshu Sharma (“Mr Sharma”), of a decision of the Administrative Appeals Tribunal (“Second Tribunal Decision” and “Tribunal” respectively) made on 23 May 2019. The Second Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, then the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) affirming the Delegate’s Decision to cancel Mr Sharma’s Student Temporary (class TU) Higher Education Sector subclass 573 visa (“Student Visa”).
The Second Tribunal Decision appears in the Court Book (“CB”) at CB 102-109.
Background
The relevant background to the matter is as follows:
(a)Mr Sharma is a citizen of India who was granted a Student Visa to enter Australia on 15 November 2013 which was due to expire on 15 March 2017: CB 12-16;
(b)from 21 March 2016 to 29 January 2017 Mr Sharma was not enrolled in a registered course of study in Australia: CB 15;
(c)on 23 January 2017 the Department of Immigration and Border Protection (“Department”) sent Mr Sharma a Notice of Intention to Consider Cancellation (“NOICC”) of Mr Sharma’s Student Visa: CB 2-6;
(d)on 1 February 2017 the Delegate’s Decision was to cancel the Student Visa: CB 7-16;
(e)on 2 February 2017 Mr Sharma made an application to the Tribunal for review of the Delegate’s Decision: CB 17-18;
(f)on 31 October 2017 Mr Sharma attended a Tribunal hearing (“First Tribunal Hearing”) and participated with the assistance of a Hindi interpreter. The First Tribunal Hearing went for over half an hour: CB 55 at [3];
(g)on 10 February 2018 the Tribunal affirmed the Delegate’s Decision to cancel Mr Sharma’s Student Visa ( “First Tribunal Decision”): CB 54-58;
(h)on 5 November 2018 this Court (differently constituted, and then styled the Federal Circuit Court of Australia) made orders remitting the matter to the Tribunal for reconsideration and determination in accordance with the law on the basis that in the First Tribunal Decision the Tribunal erred in failing to comply with obligations pursuant to s 359A of the Migration Act with respect to information obtained from the Provider Registration and International Student Management System (“PRISMS”): CB 103 at [(second)1];
(i)on 14 November 2018 the Tribunal wrote to Mr Sharma to advise that his matter had been remitted to the Tribunal by the Court for reconsideration of his review application: CB 62-63;
(j)on 23 May 2019 Mr Sharma attended another Tribunal hearing by phone (“Second Tribunal Hearing”) with the assistance of a Hindi interpreter: CB 96-98. The Second Tribunal Hearing went for a little over half an hour; and
(k)on 23 May 2019 the Second Tribunal Decision affirmed the Delegate’s Decision to cancel Mr Sharma’s Student Visa: CB 102-109.
Second Tribunal Decision
In the Second Tribunal Decision the Tribunal:
(a)set out the background to the application, including the reasons for remitter: CB 103 at [1];
(b)the manner in which the Second Tribunal Hearing occurred: CB 103 at [2]-[3];
(c)set out the claims and considerations before the Tribunal: CB 103 at [5], specifically whether Mr Sharma met the requirements of Sch 8, condition 8202 (“Condition 8202”) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 103 at [6];
(d)set out Mr Sharma’s circumstances as at the time of his application being before the Tribunal, including that:
(i)Mr Sharma’s Student Visa was cancelled on the basis that he was not enrolled in a registered course between 21 March 2016 and 29 January 2017; and
(ii)according to the Delegate’s Decision, Mr Sharma was not enrolled to study a course in Australia during this period of time and did not enrol until the Department issued Mr Sharma with the NOICC and that Mr Sharma did not respond to the NOICC: CB 103 at [7]-[8];
(e)reviewed Mr Sharma’s study history, paying particular regard to Mr Sharma’s PRISMS record and noted that it asked Mr Sharma if he wanted additional time to consider the PRISMS record prior to having a discussion with the Second Tribunal and that Mr Sharma indicated he could discuss his academic record with the Tribunal: CB 104 at [9]-[10];
(f)reviewed Mr Sharma’s academic record as outlined in his PRISMS record: CB 104 at [11];
(g)indicated that it had a discussion with Mr Sharma regarding his study record and noted to him that it did appear from his PRISMS record that he was not enrolled between 21 March 2016 and 29 January 2017, and in particular noted that his enrolment at that time, being in a Certificate IV in Business, which was originally due to begin on 9 November 2015 and complete on 27 May 2016, was cancelled due to non-payment of fees, and asked Mr Sharma if he wished to provide evidence on this matter: CB 104 at [12];
(h)noted Mr Sharma responded by answering that that he had attended classes for some time during this period but that he did not know that the institute at which he was enrolled had cancelled his enrolment due to non-payment, that his then migration agent had not ensured that his fees during this time had been paid in the appropriate way, or that they had not been passed on to the institute. The Tribunal asked if Mr Sharma could provide any evidence of these issues, in particular, that the institute did not inform him of the course cancellation due to non-payment of fees or circumstances surrounding this matter and noted to Mr Sharma that it had considered the evidence previously provided to the Delegate and to the Tribunal in relation to the First Tribunal Decision: CB 104 at [13];
(i)noted Mr Sharma did not provide any evidence in regard to these specific assertions and the Tribunal did not place any weight on these assertions: CB 104 at [13];
(j)found that Mr Sharma was not enrolled during the period between 21 March 2016 and 29 January 2017, basing its conclusion on the evidence presented at the Second Tribunal hearing, the material provided in the Tribunal’s file and in the file used for the Delegate’s Decision, and the evidence reflected in Mr Sharma’s PRISMS record, which the Tribunal discussed with Mr Sharma in accordance with s 359AA of the Migration Act: CB 104 at [14] and that, accordingly, Mr Sharma failed to comply with Condition 8202: CB 105 at [15];
(k)set out the considerations before the Tribunal for the cancellation of Mr Sharma’s Student Visa: CB 105-107 at [16]-[41];
(l)noted it was mindful that Mr Sharma was disappointed by his study experience in Australia and that it considered the evidence provided by Mr Sharma in regard to all the circumstances that Mr Sharma had outlined as to why he could not maintain enrolment in a registered course between 21 March 2016 until 29 January 2017 and progress academically to a successful conclusion, and found that Mr Sharma had not demonstrated a compelling need to remain in Australia as a student, and nor had Mr Sharma outlined to the Tribunal a degree of hardship that convinced it that Mr Sharma should not have his Student Visa cancelled: CB 108 at [42];
(m)appreciated that an education from Australia may enhance Mr Sharma’s career, however, it noted the population and economy of India is significant and there are many people in full-time professional employment without a specific education from Australia, and considered Mr Sharma’s statements and evidence given at the Second Tribunal Hearing, however, found that the breach of Condition 8202 was significant: CB 108 at [43]
(n)in considering the circumstances outlined by Mr Sharma, found that Mr Sharma’s Student Visa should be cancelled: CB 108 at [44]; and
(o)affirmed the Delegate’s Decision to cancel Mr Sharma’s Student Visa: CB 108 at [45].
Judicial Review Application
Litigation History
The Judicial Review Application was filed in the Adelaide Registry of the Court (then the Federal Circuit Court of Australia) on 19 June 2019. Given that more than three years have elapsed since then it is appropriate to set out the subsequent litigation history of the matter, which is as follows:
(a)on 18 July 2019, less than a month after the filing of the Judicial Review Application, a Registrar of this Court made consent programming orders and ordered that the matter be listed for a final hearing on a date to be advised;
(b)albeit that it is not discernible from the electronic court file, at some stage this matter was seemingly set down for hearing on 12 June 2020, as on 2 January 2020 the parties were advised by email that the final hearing of the matter set down for 12 June 2020 had been vacated and that the proceeding had been adjourned to a date to be fixed (“January 2020 Adjournment”);
(c)in May 2022, well over two years after the January 2020 Adjournment, the matter was re-allocated to the docket of the presiding Judge in the Perth Registry of the Court;
(d)on 18 May 2022 the parties were notified of a directions hearing listed for 23 May 2022, which the parties attended, and at which orders (“May 2022 Orders”) were made as follows:
(i)for Mr Sharma to file and serve any amended Judicial Review Application, any further affidavits, and an outline of submissions by 27 September 2022;
(ii)for the Minister to file and serve any amended response, any affidavits in reply, and an outline of submissions by 10 October 2022; and
(iii)programming the matter for a final hearing by video link on 24 October 2022 at 11.00am AWST/1.30pm ACDT before Judge Lucev (which was subsequently amended to 1.00pm AWST/3.30pm ACDT),
and noting that the matter may be dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 (Cth) if Mr Sharma did not appear at the final hearing;
(e)on 23 May 2022 the Chambers of the presiding Judge emailed the parties a copy of the May 2022 Orders, and a Notice of Listing advising that the matter was listed for hearing by videoconference on 24 October 2022;
(f)Mr Sharma filed no written submissions nor any other documents pursuant to the May 2022 Orders; and
(g)on 30 September 2022 the Minister filed an outline of submissions pursuant to the May 2022 Orders.
Grounds
There are six grounds in the Judicial Review Application as follows (reproduced unaltered):
1,That the Tribunal has committed a jurisdictional error by erroneously placing too much weight on the fact that the applicant had breached the condition 8202 by not being enrolled in a course for a few months. The tribunal lost sight of the fact that he was studying and going to the college during those months and the applicant was never informed that his COE had been cancelled as the college kept on demanding more money from him.
2, The Tribunal committed a jurisdictional error by failing to comply with s.359AA of the Migration Act 1958. (the Act). As required by law under s359AA(l)(a), the Tribunal should have given to the applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review; and
(b)(i) ensure, as far as is reasonably practicable, that the applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(ii) invite the applicant to comment on or respond to it; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information-adjourn the review, if the Tribunal considers that the application reasonably needs additional time to comment on or respond to the information.
3,That the Second Respondent erred in failing to consider relevant material, being the pre-hearing submissions of the applicant including the applicant’s claim of depression and the applicant’s claim that the cancellation of his Certificate of Enrolment was out of his control. The Second Respondent’s failure to consider the relevant material amounts to jurisdictional error as it was a relevant consideration to the Second Respondent’s exercise of discretion of whether to cancel the applicant’s Subclass 573 Higher Education Sector visa pursuant to section l 16(1)(b) of the Act. The applicant had specifically pleaded that he was taking medication and was suffering from severe depression. He had also attached a certificate in this regard from his General Practitioner which also included the details of medication which was being administered to the applicant. Although the tribunal noted the following
It is noted by the Tribunal that the applicant also submitted material from a hospital back in his home country dated 11 May 2019 (AAT file folio 54-55) where it was stated by the applicant’s GP that he has been prescribed medication because of his mental health as he was suffering from anxiety and stress because he could not cope with the study pressure in Australia he was experiencing.
Yet, shockingly, the tribunal never even discussed this issue in it’s entire order and consequently never gave any weightage to this most important issue that breach, if any, of the condition 8202 was purely because of the circumstances which were beyond the control of the applicant.
4, The Tribunal committed a jurisdictional error by not providing particulars of many of the provisions, evidence, conclusions, and facts which were taken into consideration while affirming the decision of the delegate. A review of the decision will reveal that the applicant was also denied procedural fairness as the tribunal neither invited the applicant to comment nor to respond to many of the alleged adverse information which was being used against the applicant.
5,That the Tribunal has committed a jurisdictional error by drawing an adverse inference that the applicant wanted to prolong his stay in Australia. Unfortunately, the Tribunal made these observations even though it was convinced that the applicant had strong ties in India which were one of the factors to be satisfied for the grant of Student Visa SC 573 under the Ministerial Direction No. 53.
6.That the Tribunal has committed a jurisdictional error by not dealing with the important legal issue that the college before cancelling the COE of the applicant had not followed the mandatory requirements of Section 20 of the ESOS Act. The gross violation on the part of the education provider has not even been discussed by the tribunal.
Mr Sharma’s submissions
As indicated at [5(f)] above Mr Sharma did not file written submissions in support of the Judicial Review Application, notwithstanding he had the opportunity to do so pursuant to the May 2022 Orders. At hearing, having explained to Mr Sharma the nature of jurisdictional error, and that it was necessary for Mr Sharma to establish jurisdictional error in the Second Tribunal Decision before any relief could be granted, and that it was not the Court’s task to grant or not grant the Student Visa, the Court invited Mr Sharma to make oral submissions notwithstanding his failure to file written submissions pursuant to the May 2022 Orders. The Court specifically indicated that Mr Sharma should address the six grounds in the Judicial Review Application, and the Minister’s submissions in relation to those grounds and the Minister’s additional submission that any relief granted by this Court would be futile.
In his oral submissions at hearing Mr Sharma made no submissions which went to why the Tribunal Decision might be affected by error, jurisdictional or otherwise.
Minister’s submissions
In relation to ground 1 the Minister submitted that:
(a)it is a well-established principle that the weight to be accorded to evidence is a factual matter for the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, (1996) 70 ALJR 568; (1996) 136 ALR 481: (2016) 41 ALD 1 (“Wu Shan Liang”), CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)Mr Sharma’s assertion that the Tribunal placed “too much weight” on the fact that he breached Condition 8202 in circumstances where he says he was attending his classes and was never informed that his enrolment had been cancelled constitutes an invitation to undertake impermissible merits review; and
(c)although Mr Sharma asserted the Tribunal had “lost sight” of certain matters, those matters were addressed in the Second Tribunal Decision.
In relation to grounds 2 and 4 the Minister submitted that:
(a)Mr Sharma asserts a breach of s 359AA of the Migration Act, and a general failure to provide particulars, but does not identify what specific “information” ought to have been put to him or particularised. The lack of particularity in Mr Sharma’s grounds is a sufficient basis for these grounds to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCA 969 (“WZATH”);
(b)in any event the Tribunal, in accordance with the requirements in s 359AA of the Migration Act, put Mr Sharma’s PRISMS records to him for comment; and
(c)there was no requirement for the Tribunal to offer running commentary or explanation of its thought processes: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [47]-[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In relation to ground 3 the Minister submitted that it is unmeritorious as the Tribunal expressly considered Mr Sharma’s claim of depression: CB 105 at [18]-[22] and referred to evidence from Mr Sharma’s general practitioner: CB 105 at [20].
In relation to ground 5 the Minister submitted that it simply seeks impermissible merits review as it does not assert any jurisdictional error, and simply seeks to cavil with a finding by the Tribunal, open on the facts, that Mr Sharma wanted to remain in Australia.
In relation to ground 6 the Minister submitted that ground six does not demonstrate jurisdictional error because s 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”) relates to an education provider’s obligation to send students notice of visa breaches. Mr Sharma submitted to the Tribunal that the education provider did not inform him of any “alleged breaches” of his Student Visa: CB 87. The Tribunal in response, considered Mr Sharma’s assertions and decided not to attribute weight to that assertion due to a lack of evidence, finding Mr Sharma’s purported “communication problem” to be unreliable: CB 104 at [13] and 107 at [34]. Where the factual premise of Mr Sharma’s contention was rejected, the Tribunal was not required to make any specific finding about the education provider’s purported breach of the ESOS Act as a rejection of that contention was subsumed in its finding of greater generality: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ.
The Minister also submitted that if, and to the extent that, the Second Tribunal Decision was affected by error (no error being conceded), the Court should exercise its discretion to refuse relief on the ground of futility as:
(a)Mr Sharma’s Student Visa was due to expire on 15 March 2017: CB 12, and there is no power in the Migration Act to extend the period of time for which a Student Visa is granted: Samah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2868 (“Samah”) at [84]-[92] per Judge Kendall, and in such circumstances it is futile to remit the matter to the Tribunal as it would result in no practical consequence due to the expiry of Mr Sharma’s Student Visa;
(b)the class of Mr Sharma’s Student Visa previously held, has now been repealed, and the change in legal circumstances makes a remittal to the Tribunal futile in circumstances where Mr Sharma’s visa class no longer exists;
(c)although the Migration Regulations previously provided for an applicant to be eligible to apply for a subclass 572 or 573 Student Visa if their substantive Student Visa had been cancelled, no similar provision now exists in the Migration Regulations, and under the law as it stands, there would be no utility in remitting the matter to the Tribunal;
(d)even if the matter were remitted and the Tribunal decided not to cancel Mr Sharma’s Student Visa, the three year preclusion period, under the Public Interest Criterion 4013, does not apply and has long since passed; and
(e)no information is currently before the Court to suggest that Mr Sharma would be able to fulfil the requirements of the Higher Education sector visa in circumstances where his own evidence was that he struggled to complete his Bachelor’s level course: CB 25-29.
Requirement for jurisdictional error
For present purposes it suffices to observe that this Court may set aside the Second 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 and 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. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Legislative provisions
In relation to the cancellation of Mr Sharma’s Student Visa the relevant legislative provisions are as follows:
(a)section 116(1) of the Migration Act provides as follows:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared-it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(b)Condition 8202 provides as follows:
(1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course; and
(b) subject to subclause (3), 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; and
(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a) is enrolled in a course at the Australian Qualifications Framework level 10; and
(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.
The Tribunal was aware, and correct to observe, that:
(a)the issue was whether Mr Sharma, as the holder of a Student Visa, had breached Condition 8202, and that if he had done so that the Student Visa may be cancelled under s 116(1) of the Migration Act: CB103 at [5]; and
(b)having found that Mr Sharma had not complied with Condition 8202, that it had to consider if the Student Visa ought to be cancelled in the exercise of a general discretion requiring it to have regard to the circumstances of the case, including matters raised by Mr Sharma, and matters in the Department’s relevant Procedures Advice Manual (“PAM3 Guidelines”): CB 105 at [15]-[16].
Consideration - ground 1
Mr Sharma asserted that the Tribunal placed “too much weight” on the fact that he breached Condition 8202 by not being enrolled when he says he was attending his classes and that the education provider did not inform him that his enrolment had been cancelled, but “kept on demanding money from him”, and that the Tribunal “lost sight” of these matters.
Fact-finding was a matter for the Tribunal: as part of its fact-finding function it was for the Tribunal to identify the material it found relevant to its reasoning and to give that material the weight it considered appropriate: 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 Sharma: 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: ReMinister 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 Sharma 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.
The Second Tribunal Decision at CB 104 at [13] indicates that the Tribunal:
(a)set out Mr Sharma’s contentions that:
(i)he had attended classes “for some time” during the period of non-enrolment (that period being 21 March 2016 to 29 January 2017: CB 104 at [12]);
(ii)he did not know that the education provider had cancelled his enrolment; and
(iii)his migration agent had not been paying his fees to the education provider;
(b)indicated that it had asked Mr Sharma to provide evidence of the matters in (a) above, and particularly of the alleged failure of the education provider to inform him of the cancellation of his enrolment due to non-payment of fees or the circumstances of the matter, but that Mr Sharma provided no such evidence; and
(c)because no evidence was provided by Mr Sharma the Tribunal placed no weight on Mr Sharma’s assertions,
and, at CB 104-105 at [14]-[15] proceeded to find as follows:
The Tribunal finds, based on the evidence presented at hearing, and the material provided to the Tribunal in the Tribunal’s file and in the [D]elegate’s file, and the evidence reflected in [Mr Sharma’s] PRISMS record, which the Tribunal discussed with the applicant in accordance with s 359AA, that [Mr Sharma] was not enrolled during this period of time.
On the evidence before the Tribunal, [Mr Sharma] was not enrolled in a registered course. Accordingly, [Mr Sharma] has not complied with condition 8202(2).
The rationale adopted by the Second Tribunal in concluding that Mr Sharma was not enrolled in a registered course was open to it, particularly in circumstances where it had asked for evidence of certain matters from Mr Sharma (as set out at [21(b)] above) and none had been forthcoming, and there was other evidence that supported that conclusion. Where the Tribunal set out the matters referred to at [21(a)] above it cannot properly be said that the Tribunal “lost sight” of those matters as is alleged by ground 1, for as the Full Court of the Federal Court observed in WAEE at [47] per French, Sackville and Hely JJ an inference such as that is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point” (and see more recently AFB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 299 at [23]-[24] per Snaden J). Here the issue has been identified and dealt with by the Tribunal in the course of otherwise comprehensive reasons in the Second Tribunal Decision.
In the above circumstances, ground 1 seeks impermissibly to cavil with the weight attributed to the evidence, and the merits review conclusions reached, by the Tribunal, contrary to long-standing and accepted principles of judicial review. It follows that ground 1 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Consideration - grounds 2 and 4
The allegations of jurisdictional error made in grounds 2 and 4 are not particularised.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: 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); WZATH; DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J, citing WZAVW.
Even where there is an un-particularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams.
The Court heard oral submissions from Mr Sharma but those submissions did not address, identify or particularise any jurisdictional error in grounds 2 or 4: Transcript pp 3 and 7. Otherwise, there was no identification of what specific information ought to have been put to Mr Sharma or particularised, or the nature of the alleged breach of s 359AA of the Migration Act. Notably, in accordance with the requirements in s 359AA of the Migration Act, the Tribunal did put Mr Sharma’s PRISMS records to him for comment: CB 104 at [9] and [12]. Furthermore, it is apparent that, in relation to each of the factors considered in the exercise of the discretion as to whether to cancel Mr Sharma’s Student Visa, and where relevant, the Tribunal discussed with Mr Sharma matters concerning those factors: see, for example, CB 105-106 at [18]-[22] (Mr Sharma’s depression), 106 at [23]-[27] (the purpose of Mr Sharma’s travel stay in Australia, and whether there was a compelling need to travel or to remain in Australia), 106 at [30] (compliance with Student Visa conditions), 107 at [32] (hardship); 107 at [34] (circumstances of the cancellation), 108 at [42] (other relevant matters). There was no requirement for the Tribunal to do more than it did in this respect: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; SZBEL at [47]-[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Mr Sharma was invited to and was afforded the opportunity to give evidence and present arguments in accordance with s 360 of the Migration Act.
The failure to particularise grounds 2 and 4 therefore provides no basis for a finding of jurisdictional error in relation to grounds 2 and 4 of the Judicial Review Application, and the alleged denial of procedural fairness referred to in ground 4 is controverted by the facts.
It follows that grounds 2 and 4 are not made out, and do not establish jurisdictional error in the Second Tribunal Decision.
Consideration - ground 3
At CB 105 at [18]-[22] of the Second Tribunal Decision the Tribunal observed as follows:
The Tribunal has also considered a submission put by the applicant’s representative dated 20 Mat 2019 (AAT file folio 48-52) where it was stated that the applicant was enrolled in his Certificate IV in Business and did study a portion of it but that it was cancelled due to a misunderstanding regarding the payments made by the applicant towards his tuition fee. The applicant’s lawyer stated that the educational Institute, Holmes, discriminated against the applicant by cancelling the applicant’s enrolment. The submission stated that the applicant was not informed of any breaches of the conditions of his enrolment by the Institute. This submission also stated that the applicant was ill during this period from January 2016 because he was suffering from depression because his then girlfriend was forcibly married to someone else by her parents and that this caused mental health issues for the applicant. This submission then went on to state that because of this the applicant could not concentrate on his studies and that the migration agent who he was using at that time did not send a proper reply to the department regarding its Notice of Intention to Consider Cancellation. It was also stated in this submission that the applicant’s condition further deteriorated after his ex-girlfriend committed suicide in August 2016. Further to this, it was submitted that the applicant had been taking various family medicines sent to him from his home country which further exacerbated his condition.
The Tribunal has considered this submission in detail, and also the evidence given at the hearing, and accepts that the applicant would have been affected in his study by these events. However, the Tribunal finds that the applicant could have returned back to his home country and deal with his mental health issues having deferred his studies for an appropriate period of time. The applicant could then have returned to Australia and continued meaningful study. The applicant has now been here in Australia and has been enrolled in over 10 courses, almost all having been cancelled. It is the obligation of a student visa holder to remain enrolled and progress academically in a registered course.
It is noted by the Tribunal that the applicant also submitted material from a hospital back in his home country dated 11 May 2019 (AAT file folio 54-55) where it was stated by the applicant’s GP that he has been prescribed medication because of his mental health as he was suffering from anxiety and stress because he could not cope with the study pressure in Australia he was experiencing.
As stated above, the Tribunal has considered all the evidence provided by the applicant and finds that it is the visa holder’s responsibility to maintain enrolment and progress academically and that although the applicant had had some difficulties with mental health issues which the Tribunal has considered, but finds that the evidence provided is not sufficient to offset the significance of the visa breach as stated above.
The above quoted paragraphs make manifest the fact that the Tribunal did consider evidence concerning Mr Sharma’s depression, and did so “in detail”: CB 105 at [19], additionally noting the effect of the forced marriage and subsequent suicide of Mr Sharma’s former girlfriend, and that he had been taking “family medicines” which exacerbated his depression: CB 105 at [18]. Not only did the Tribunal set out and consider these matters, but it also accepted that they may have had some effect upon Mr Sharma’s capacity to study, but went on to find that Mr Sharma might have taken steps to ameliorate the consequences of these matters: CB 105 at [19]. The Tribunal also had regard to information from a hospital in India which indicated that Mr Sharma had been prescribed medication by his general practitioner in India: CB 105 at [20]. Notably, the Tribunal indicated that it had reviewed this information with Mr Sharma and invited him to provide further evidence should he wish to do so: CB 105 at [21] (an invitation which it would appear was not taken up by Mr Sharma), and that it had “considered all the evidence provided by” Mr Sharma: CB 105-106 at [22]. In these circumstances, Mr Sharma’s assertion that the Tribunal failed to consider this relevant material and that it “never even discussed this issue” in the Second Tribunal Decision cannot be made out on the facts which point plainly to the contrary.
It follows that ground 3 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Consideration - ground 5
It is not obvious to the Court that the Tribunal did draw an inference, adverse or otherwise, concerning Mr Sharma wanting to prolong his stay in Australia. Assuming that the Tribunal did so however, it is evident that ground 5 does no more than seek to disagree with a factual finding (that Mr Sharma wanted to prolong his stay in Australia) that was open on the facts having regard to the length of Mr Sharma’s stay in Australia, and his study and enrolment record (as to which see CB 103-105 at [7]-[15]).
Mere disagreement, and even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error, fact finding and the weight to be given to evidence being matters for the Tribunal, and such disagreement constitutes no more than a request for impermissible merits review of the Second Tribunal Decision, contrary to the long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Tran at [5]-[7] per RD Nicholson J; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ.
It follows that ground 5 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Consideration - ground 6
Section 20 of the ESOS Act provided as follows:
(1) Subject to subsection (4A), a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.
Note 1: If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(1A) A registered provider must send a notice to a student under subsection (1) even if the student has ceased to be an accepted student of the provider.
(2) The registered provider must send the notice as soon as practicable after the breach.
(3)The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a) contain particulars of the breach; and
(b) state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and
(c) state that the student must present photographic identification when so attending; and
(d) set out the effect of sections 137J and 137K of that Act.
(4A) A registered provider must not send a notice under subsection (1) on or after the day this subsection commences.
Unincorporated registered providers
(5) If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.
(6)A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.
Penalty: 60 penalty units.
(7) An offence under subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Section 20 of the ESOS Act thus relates to an education provider’s obligation to send students notice of visa breaches. Mr Sharma submitted to the Tribunal that his education provider did not inform him of any alleged breaches of his Student Visa: CB 87.
The Tribunal considered Mr Sharma’s assertions and:
(a)decided not to attribute weight to them due to a lack of evidence: CB 104 at [13]; and
(b)found Mr Sharma’s purported “communication problem” with his education provider not to be credible: CB 107 at [34].
Having regard to the basis upon which the Tribunal dealt with the ESOS Act issue, the factual premise of Mr Sharma’s ESOS Act contention was rejected by the Tribunal: CB 107 at [34]-[35]. It follows that the Tribunal was therefore not required to make a specific finding about the education provider’s alleged ESOS Act breach because the rejection of the alleged ESOS Act breach meant that Mr Sharma’s contention was subsumed in a finding of greater generality: WAEE at [47] per French, Sackville and Hely JJ. There is nothing to suggest that the credibility finding made by the Tribunal was not open to it on the evidence (or lack thereof).
In any event, a contravention of s 20 of the ESOS Act by reason of the failure of an education provider to notify a student of a visa breach cannot of itself give rise to jurisdictional error on the part of the Tribunal as it is not the Tribunal’s error. Further, even if there is such a contravention a visa can still be cancelled under s 116 of the Migration Act provided a NOICC has been issued, and as such a notification under s 20 of the ESOS Act was not an essential precondition to the cancellation of a visa for breach of a visa condition: Khattri v Minister for Immigration & Anor [2018] FCCA 768 at [33]-[34] per Judge Cameron. No jurisdictional error would therefore have arisen even if the Tribunal had found that s 20 of the ESOS Act had been contravened by Mr Sharma’s education provider.
It follows that ground 6 is not made out, and does not establish jurisdictional error in the Second Tribunal Decision.
Consideration - Futility
The Minister also submitted that if, and to the extent that, the Second Tribunal Decision was affected by error (no error being conceded), the Court should exercise its discretion to refuse relief on the ground of futility.
Futility as a basis for the refusal to grant prerogative relief can be expressed in a number of different ways, including that:
(a)“no useful result could ensue”: R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; (1949) ALR 675; (1949) 23 ALJ 278, CLR at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or
(b)it would “lack utility”: SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or
(c)it would “be an exercise in futility”: Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J,
but where such phrases can be applied to the facts of a case the end result is generally the same: prerogative relief is refused.
The circumstances supporting a finding of futility in this case include the following:
(a)Mr Sharma’s Student Visa expired on 15 March 2017: CB 12. In Patel v Minister for Immigration & Anor [2014] FCCA 2000 at [46] per Judge Lucev it was observed that:
A further basis on which to refuse prerogative relief is that it would have no practical effect, that is, it would be futile, because the applicant’s Higher Education Visa expired in 2013. Thus, even if cancellation of the Higher Education Visa were a consequence of jurisdictional error (which it is not in the Court’s view) prerogative relief would have no practical consequence, the Higher Education Visa long since having expired.
(b)no power is contained in the Migration Act to allow the Tribunal to extend the period of time for which a Student Visa is granted: Samah at [84]-[92] per Judge Kendall (and cases there cited); and
(c)the class of Student Visa previously held by Mr Sharma has now been repealed, and only two sub-classes of a Student Visa now exist, a subclass 500 (Student) and subclass 590 (Student Guardian): Migration Regulations, Sch 1, Pt 2, cl 1222(6). This change in legal circumstances means that Mr Sharma’s Student Visa category no longer exists. Thus, even if the matter were to be remitted, the Tribunal is restricted to setting aside the Delegate’s Decision and substituting a new decision, which it cannot do because it cannot substitute a different visa class outside of the class of visa originally applied for: Migration Act, ss 31, 45 and 46; Minister for Immigration & Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513; (1999) 161 ALR 53; (1999) 53 ALD 315 at [36] per Weinberg J; Kemei v Minister for Immigration & Anor [2019] FCCA 1735 at [30] per Judge Lucev.
Even if the Second Tribunal Decision were to be affected by jurisdictional error (which it is not) the Court would refuse prerogative relief in the exercise of discretion because, in the above circumstances, it would be futile to remit the matter to the Tribunal as there could be no practical consequence to, or outcome from, any future Tribunal decision in circumstances where Mr Sharma’s Student Visa has long since expired and there is no power to extend the period of the Student Visa, and where, in any event, the particular class of Student Visa held by Mr Sharma no longer exists.
Jurisdictional error otherwise
The Court is also cognisant that Mr Sharma was self-represented, and that in those circumstances the Court must endeavour to remain independently alert to the possibility of a jurisdictional error being made by the Tribunal: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 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 at [26] per Judge Lucev. In the Court’s view, there is nothing in the materials before it which indicates that the Tribunal made a jurisdictional error otherwise in the Second Tribunal Decision.
Conclusion and Orders
The Court has concluded that the Second Tribunal Decision is not affected by jurisdictional error, and even if it were (which it is not) prerogative relief would be futile. It follows that there will be an order dismissing the Judicial Review Application filed on 19 June 2019.
There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 15 November 2022
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