SHRESTHA v Minister for Immigration

[2015] FCCA 2262

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2262

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) to cancel a Student visa (Visa) – visa cancelled on basis that applicant did not satisfy condition 8202 – whether incorrect finding of Tribunal materially affected the decision – whether finding of Tribunal was unreasonable or irrational or both – whether incorrect finding of Tribunal materially affected Tribunal’s decision – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.116(1), 418, 424A

Tribunals Amalgamation Act 2015 (Cth), sch.9 item 15AG
Migration Regulations 1994 (Cth), cond.8202 of sch.8

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1
Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZRHL v Minister for Immigration and Citizenship & Anor [2013] FCA 1093; (2013) 136 ALD 641

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Applicant: RANJAN SHRESTHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 517 of 2014

Judgment of: Judge Manousaridis

Hearing date: 17 September 2014

Delivered at: Sydney

Delivered on: 28 August 2015

REPRESENTATION

Counsel for the Applicant: Mr S Jeppesen

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The decision of the second respondent made on 5 February 2014 affirming the decision of a delegate of the first respondent made on 12 September 2013 to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa is quashed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

3. Pursuant to item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the second respondent to review the decision of a delegate of the first respondent made on 12 September 2013 to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa.

4. The first respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 517 of 2014

RANJAN SHRESTHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (573 visa).

2. The delegate cancelled the applicant’s 573 visa pursuant to s.116(1) of the Migration Act 1958 (Cth) (Act), which provides that the Minister may cancel a visa if he or she is satisfied that, among things, its holder has not complied with a condition of the visa. The delegate cancelled the applicant’s visa because the applicant failed to comply with condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (condition 8202) which required the applicant be enrolled in a registered course, and the delegate was satisfied that the reasons for cancelling the applicant’s 573 visa outweighed the reasons for not cancelling it.

3. The applicant does not dispute that he failed to comply with condition 8202. Nor does he dispute that, because of that failure, the Minister had the power under s.116(1) of the Act to cancel the applicant’s 573 visa. The applicant claims, however, that the power conferred by s.116(1) of the Act is discretionary, and the Tribunal made a number of jurisdictional errors in exercising its discretion in favour of cancelling the applicant’s 573 visa.

4. Although the application states a number of grounds, at the hearing before me the applicant’s challenge focused on what the applicant submitted was the Tribunal’s relying on an incorrect finding or assumption of fact. The applicant submitted this led the Tribunal to make an adverse assessment of the applicant’s credibility which, in turn, infected the Tribunal’s entire consideration of the applicant’s case. Additionally, or alternatively, the applicant submitted that the Tribunal’s reliance on the incorrect finding or assumption rendered its decision irrational or unreasonable.

Background

1. On 20 August 2013 a delegate of the Minister sent the applicant a notice of intention to consider cancellation of the applicant’s 573 Visa (NOICC) in which the delegate informed the applicant he considered the applicant did not comply with condition 8202.[1] The delegate invited the applicant to inform the delegate whether the applicant did not agree there were grounds for the cancellation of the visa and, if he accepted such grounds existed, why the visa should not be cancelled.

   [1] CB11

2. The applicant responded by letter dated 26 August 2013.[2] The applicant said he arrived in Sydney on 7 October 2008 and started to study a diploma of business management for two years. He joined an advanced diploma in accounting in ZBA College from 14 February 2011 to 13 February 2012. He obtained a certificate of enrolment (COE) from Victoria University from March 2012 to November 2013, but he wanted to change to the University of Southern Queensland, having received a letter of offer from that University. The applicant, however, did not secure a place at that University because it required a release letter which he was unable to obtain. The applicant attempted to secure enrolment with other educational institutions. That led the applicant to enrol in the Holmes Institute for a bachelor’s degree for March 2012 to June 2012.

   [2] CB19-20

3. All “was going according to plan”, the applicant continued, until the applicant received a telephone call from his mother on 21 June 2012.  The applicant received news his farther had a serious heart problem. His father was hospitalised for more than six months. The applicant became depressed and anxious about his father’s condition. The applicant’s parents could no longer send money for his tuition fees. As the applicant’s father’s condition improved, the applicant’s condition also improved, and he enrolled with the Pacific College of Technology, Auburn.

4. The applicant submitted to the Tribunal a statutory declaration which repeated the matters on which he relied before the delegate.[3] The applicant also provided some documents, one of which was a COE issued by the Pacific College of Technology for Advanced Diploma of Management which shows that that course was scheduled to begin on 12 August 2013.[4]

   [3] CB84-85

   [4] CB124

Tribunal’s reasons

1. The Tribunal recognised that the power under s.116(1) of the Act to cancel a visa was discretionary. It noted that, although the Act and the regulations do not specify matters that must be considered when exercising the discretion, the Tribunal had regard to matters raised by the applicant, and government policy guidelines contained in the “Procedures Advice Manual” prepared by the Department of Immigration and Border Protection.

2. The Tribunal first considered the purpose for which the applicant held the 573 visa; it was to study. The Tribunal found the applicant “was not fulfilling the purpose of a student visa” because, for the period from June 2012 to August 2013, which the Tribunal considered to be a lengthy period, the applicant undertook no study in Australia. The Tribunal, therefore, considered the applicant’s breach of condition 8202 to be significant.[5]

   [5] CB138, [11]

3. Next, the Tribunal considered the courses the applicant had completed over the five and a half years he had been in Australia. The applicant had completed a two-year Diploma, but no other study. That suggested the applicant is not a genuine student, and does not have a genuine interest in studying in Australia.[6] The Tribunal acknowledged the applicant presented evidence of his current study, but noted the applicant informed the Tribunal he has no intention of completing that course, and that he intends to transfer to a bachelor course. That suggested that “the only reason the applicant enrolled in a course in August 2013 was to assist him in the visa cancellation process and not because he is genuinely interested in studying”.[7]

   [6] CB138, [12]

   [7] CB138, [12]

4. The Tribunal then considered the applicant’s circumstances as described in the applicant’s response to the delegate’s letter dated 20 August 2013 and in the applicant’s statutory declaration. The Tribunal, however, for a number of reasons, did not accept the applicant’s claims:

   a)First, the applicant provided “no probative documentary evidence concerning his father’s health condition or any changes in his financial circumstances and, more significantly, the applicant presented no probative and convincing evidence to [sic] his own mental health”.[8]

   b)Second, the applicant presented no evidence of his having travelled to Nepal to be with his family and father. That suggested to the Tribunal that the applicant was not being truthful about his claim that his father suffered from a serious illness.[9]

   c)Third, the relevant issue was the applicant’s enrolment in a registered course, not his ability to attend the course. If the applicant was unable to undertake study, the applicant had the option of enrolling but deferring his study.[10]

   d)Fourth, the applicant “enrolled in a new course in August 2013, at the same time when he was issued with the NOICC”. The Tribunal did not accept that the applicant was too depressed to enrol in any course for a period exceeding a year but at the same time he was issued with the NOICC he was able to overcome his depression, acquire funds, and enrol in another course. The “timing of these actions suggests that the applicant’s failure to enrol was not caused but his claimed depression or other matters to which he refers”.[11]

   e)Fifth, the applicant was aware that he was holding a student visa which required him to maintain enrolment. If he was unable to study, he could have returned to Nepal to deal with the difficulties there, and then return to Australia when the difficulties were over. That he did not do these things indicates that the applicant did not intend to study, and that he was in Australia for the purpose other than undertaking study.[12]

   f)Sixth, the applicant informed the Tribunal he worked as a pizza maker since 2011. The Tribunal did not accept that the applicant was too depressed or ill to be able to enrol in a course but not too depressed to engage in employment at the same time.[13]

   [8] CB138, [14]

   [9] CB139, [15]

   [10] CB139, [16]

   [11] CB139, [17]

   [12] CB139, [18]

   [13] CB139, [19]

5. The Tribunal also addressed a number of other matters raised by the applicant. First, it did not accept the applicant’s explanation for not enrolling, namely, that his parents did not send him money. In any event, the Tribunal found that that would not have been a proper reason for the applicant to remain in Australia as the holder of a student visa.[14] Second, the applicant’s claimed difficulties in obtaining a letter of release did not prevent the applicant from enrolling in March 2012 because those difficulties were resolved by March 2012.[15] Third, the Tribunal did not accept the applicant’s claim that he had a gambling problem which led him to gamble away the refund he received from Holmes College.

   [14] CB140, [21]

   [15] CB140, [23]

6. The Tribunal also concluded that the applicant’s breach of condition 8202 did not occur in circumstances beyond his control, and there were no extenuating or compassionate circumstances in the applicant’s case.[16] The Tribunal, however, acknowledged that the applicant may suffer some hardship because of the cancellation of his visa because he will not be able to undertake further study in Australia.[17]

   [16] CB140, [25]

   [17] CB140, [26]

Grounds advanced at hearing

1. As the matter was conducted at the hearing before me, the principal ground on which the applicant relied for claiming the Tribunal made a jurisdictional error is that the Tribunal decided the case before it on an erroneous factual premise. The Tribunal found or assumed that the applicant enrolled with the Pacific College of Technology for Advanced Diploma after he received notice of the NOICC. The applicant submits that that finding or assumption is incorrect because the COE shows that it was created on 9 August 2013 whereas the NOICC is dated 20 August 2013.

2. The applicant submits that the Tribunal’s reliance on the incorrect finding or assumption renders its decision liable to be set aside for two reasons. First, the Tribunal’s reliance on the finding or assumption led it to take an adverse view of the applicant’s credibility. That, in turn, meant that, although the Tribunal relied on other matters for not accepting the applicant’s claim for the favourable exercise of discretion under s.116(1) of the Act, it could not be said that, in the absence of the Tribunal having relied on the incorrect finding or assumption, the Tribunal would have rejected the applicant’s claim.[18] Second, the applicant submits the Tribunal’s reliance on the incorrect assumption rendered its decision unreasonable or irrational.[19]

   [18] VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (Hill, Sundberg, Hill JJ)

   [19] SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093

Was applicant aware of NOICC at time of enrolment?

1. The Minister does not submit that the applicant enrolled with the Pacific College of Technology after he received the NOICC. The document that evidences the COE for the Pacific College of Technology on its face states it was created on 9 August 2013.[20] There is no question, therefore, that if the Tribunal found or assumed the applicant was aware of the NOICC before he enrolled with the Pacific College of Technology, it will have made an error of fact.

   [20] CB124

Did the Tribunal find or assume applicant to be aware NOICC at time of enrolment?

1. The applicant relies on two passages from the Tribunal’s reasons as showing that the Tribunal found or assumed that the applicant enrolled in the Pacific College of Technology after he received notice of the NOICC. The first is the following (emphasis added):[21]

   The applicant informed the Tribunal that he completed a two year Diploma in Australia but no other study. The applicant offered various reasons why he did not complete other study. In the Tribunal’s view, completion of a two year course in five and half years the applicant spent in Australia suggests he is not a genuine student and does not have a genuine interest in pursuing study in Australia. That suggests that the only reason the applicant enrolled in a course in August 2013 was to assist him in the visa cancellation process and not because he is genuinely interested in studying.

   [21] CB138, [12]

2. In my opinion, the emphasised portion of this passage indicates the Tribunal was of the view that the applicant was aware of the NOICC at the time he applied to be enrolled with the Pacific College of Technology. The emphasised passage attributes to the applicant a reason for enrolling; and the reason is the applicant’s believing that his enrolling will assist him “in the visa cancellation process”. The Tribunal could only rationally make this finding if it was of the view the following matters were true:

   a)when enrolling with the Pacific College of Technology, the applicant had in mind the reasons the Tribunal ascribed to him, namely enrolling would assist him “in the visa cancellation process”;

   b)the applicant believed there was a “visa cancellation process” in train; and

   c)the “visa cancellation process” the applicant believed was in train was that initiated by the NOICC.

3. The second passage is as follows (emphasis added):[22]

   Fourthly, and also significantly, the Tribunal notes that the applicant enrolled in a new course in August 2013, at the same time when he was issued with the NOICC. The Tribunal does not accept that the applicant was too depressed to enrol in any course for a period exceeding a year but at the same time as he was issued with the NOICC, he was able to overcome his depression, acquire the funds and enrol in another course. The timing of these actions suggests that the applicant’s failure to enrol was not caused by his claimed depression or other matters to which he refers.

   [22] CB139, [17]

4. I am satisfied that this passage, too, indicates that the Tribunal was of the view the applicant was aware of the NOICC at the time the applicant enrolled at the Pacific College of Technology. That is made clear by the words “at the same time”.

Consequences of incorrect finding or assumption

1. As I have already noted, the applicant relies on two grounds for submitting that the Tribunal’s reliance on the incorrect assumption renders its decision liable to be set aside. The first ground relies on the decision of the Full Federal Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs.[23] In that case, the Tribunal made a jurisdictional error by failing to consider relevant material, in that case a letter which had been presented to the Secretary of the Department of Immigration and Citizenship under s.418(3) of the Act. The Tribunal incorrectly assumed that the applicant had produced the letter only after the Tribunal issued a notice under s.424A of the Act. The Tribunal relied on that incorrect assumption together with other matters to find that the first and second appellants had fabricated evidence.

   [23] [2005] FCAFC 117 (Hill, Sundberg, Hill JJ)

2. Although the Full Federal Court in VAAD accepted the Tribunal may still have rejected the appellants’ claims if it did not make the error, it was “impossible to know whether the Tribunal’s assessment of the appellants’ credibility would have been different” had the Tribunal not made the erroneous assumption.[24] That was so because “an assessment of credibility is not necessarily linear”.[25] By the expression “not necessarily linear”, it appears the Full Federal Court meant that an adverse assessment of credibility on a particular matter may extend to other matters in a manner or by a process that is not proportional to the particular matter’s apparent significance. In that regard, the Full Court referred[26] to the following passage from the judgment of Gleeson CJ in Re Refugee Review Tribunal & Anor; Ex parte Aala:[27] 

   Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.

   [24] [2005] FCAFC 117 at [79]

   [25] [2005] FCAFC 117 at [79]

   [26] [2005] FCAFC 117 at [79]

   [27] [2000] HCA 57; (2000) 204 CLR 82 at [4]

3. The Full Federal Court also referred[28] to the following passage from the judgment of Kirby J in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor:[29]

   [D]ecision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

   [28] [2005] FCAFC 117 at [79]

   [29] [2004] HCA 62; (2004) 221 CLR 1 at [81]

4. The applicant before me submitted that the Tribunal’s incorrect finding or assumption that the applicant had enrolled with the Pacific College of Technology led the Tribunal to form an unfavourable view of the applicant’s credibility. That, in turn, had the same impact on the Tribunal’s decision as the Full Federal Court held the Tribunal’s erroneous finding had in the Tribunal’s decision in VAAD.

1. The reasoning in VAAD on which the applicant relies was predicated on the Tribunal having made an error, namely, a failure to take into account relevant material. That was a jurisdictional error. The Full Court’s reasoning was directed to whether the error it found the Tribunal made in that case was one which could or could not have materially affected the Tribunal’s decision. The Full Court’s reasoning in VAAD can only apply to the circumstances of the applicant’s case before me only if I find the Tribunal made a jurisdictional error in making and relying on the incorrect finding or assumption that the applicant enrolled with the Pacific College of Technology after he received the NOICC. And this leads me to the second ground on which the applicant relies for submitting that the Tribunal made a jurisdictional error by relying on its erroneous finding or assumption that the applicant enrolled with the Pacific College of Technology after he received the NOICC.

2. The applicant’s second ground relies on the decision of Logan J in SZRHL v Minister for Immigration and Citizenship & Anor.[30] In that case, the Tribunal rejected a part of the applicants’ claims that was based on the allegation that they had been subject to a “false case”. In rejecting that allegation, the Tribunal relied on its view that the applicants did not make this allegation in their application for a Protection visa. That view was incorrect. The primary judge found the error had “no jurisdictional significance”. Logan J, however, disagreed.

   [30] [2013] FCA 1093; (2013) 136 ALD 641

3. Logan J acknowledged that cases have drawn a distinction between the Tribunal’s failing to consider a claim and “errant fact-finding”. However:[31]

   . . .  a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact finding may yet be that the Tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):

   [105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

   [31] [2013] FCA 1093; (2013) 136 ALD 641 at [23], [24]

4. Logan J concluded that the Tribunal’s reasoning as to the first appellants’ absence of credibility was illogical or irrational because it was based on a false premise; and that a decision so based was not within the range of possible acceptable outcomes.[32]

   [32] [2013] FCA 1093 at [35]

5. In my opinion, Logan J’s reasoning applies to the circumstances of the case before me. The Tribunal’s view that the applicant was aware of the NOICC at the time he enrolled with the Pacific College of Technology was obviously incorrect. One need only compare the date of the NOICC and the date on which the COE relating to the applicant’s enrolment with the Pacific College of Technology was created. Given these documents were both before the Tribunal, and there was no doubt that the COE was authentic, no rational decision-maker could have concluded that the applicant enrolled with the Pacific College of Technology at a time when he was aware of the NOICC.

6. The next question is whether the Tribunal relied on the incorrect finding or assumption that the applicant was aware of the NOICC at the time he enrolled with the Pacific College of Technology and, if so, whether the error was of such insignificance that it could not have materially affected the Tribunal’s decision. In my opinion, these questions must both be answered in the negative. First, the second passage on which the applicant relies as showing that the Tribunal was of the view that the applicant had notice of the NOICC at the time he enrolled shows that the Tribunal directly relied on that view to reject the applicant’s claim that he suffered from depression. The Tribunal said that the timing of the applicant’s enrolling in the new course and the issue of the NOICC “at the same time” “suggests that the applicant’s failure to enrol was not caused by his claimed depression or other matters to which he refers”.[33] The Tribunal prefaced its reference to this timing with the word “significantly”. That indicates the Tribunal placed great weight on what the Tribunal considered to be the coincident timing of the applicant’s receipt of the NOICC and his enrolling with the Pacific College of Technology. This finding is one which affected the Tribunal’s assessment of the applicant’s credibility; it was a ground for the Tribunal not believing the applicant on the core element of the matters he put before the Court. The Tribunal’s reliance on its incorrect view was not insignificant.

   [33] CB139, [17]

7. The Tribunal’s relying on the incorrect view that the applicant had notice of the NOICC at the time he enrolled with the Pacific College of Technology affected the Tribunal’s decision in another, and potentially more significant, way. The Tribunal relied on its incorrect view to give no weight to the applicant’s enrolment with the Pacific College of Technology. That is, because the Tribunal was of the view the applicant enrolled with the Pacific College of Technology at the time the applicant had notice, the Tribunal found that the applicant enrolled to assist him with the cancellation process, not to pursue his studies. Had the Tribunal not relied on its incorrect view that the applicant enrolled with the Pacific College of Technology at the time he received the NOICC, the Tribunal would have had to consider the significance it should attach to the applicant’s enrolment, given that it was made before the applicant had received the NOICC. It may well be that the Tribunal would have given the applicant’s enrolment no weight. But it is not inevitable that the Tribunal would have done so. Thus, it cannot be said that the Tribunal’s incorrectly relying on its view that the applicant enrolled with the Pacific College of Technology at the time he had notice of the NOICC could not have materially affected the Tribunal’s decision.

Conclusions and disposition

1. The Tribunal incorrectly found or assumed that the applicant had enrolled with the Pacific College of Technology after he received notice of the NOICC. That finding or assumption was irrational in that no rational decision-maker would have made that finding or assumption, given the material that was before the Court. The Tribunal relied on that incorrect finding or assumption to conclude that the applicant’s failure to comply with condition 8202 was not caused by the applicant’s claimed depression or other matters to which he relied. The Tribunal also relied on that incorrect finding or assumption to conclude that the only reason the applicant enrolled with the Pacific College of Technology was to assist him in the visa cancellation process. The Tribunal’s reliance on its incorrect finding or assumption was not insignificant. It cannot, therefore, be said, that the Tribunal’s incorrect error or assumption could not have materially affected the Tribunal’s decision.

2. I propose, therefore, to quash the Tribunal’s decision. Because of item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth), it is the Administrative Appeals Tribunal that must determine the applicant’s case according to law. I propose, therefore, to order that the Administrative Appeals Tribunal be added as a party, and that it determine the applicant’s application for review according to law. I also propose to order that the Minister pay the applicant’s costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 28 August 2015