Singh v Minister for Home Affairs
[2019] FCCA 1670
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1670 |
| Catchwords: MIGRATION – Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – cancellation of visa – review of decision of Administrative Appeals Tribunal – whether failure to consider relevant information and evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.116, 140, 357A, 360, 368, 474, 476 Migration Regulations 1994 (Cth), sch.8, Condition 8202 |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| Applicant: | GURJANT SINGH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 685 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 17 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Counsel for the First Respondent: | Ms C I Taggart |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The first respondent have leave to rely on the affidavit of Faye Heather Lawson affirmed 6 May 2019.
The application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 685 of 2018
| GURJANT SINGH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 24 December 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 11 December 2018.
The applicant is an Indian citizen who was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the “visa”) on 26 November 2013.
On 1 December 2016, the applicant was notified that a delegate of the Minister for Home Affairs had cancelled his visa pursuant to s.116 of the Migration Act 1958 (Cth) (the “Act”) (CB 28-32).
On 3 December 2016, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 45-46).
On 11 December 2018, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
The applicant now seeks judicial review of the Tribunal’s decision.
This proceeding is brought pursuant to s.476(1) of the Act. To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
Factual Background
The Court has reviewed the Court Book (“CB”) and the Minister’s outline of submissions filed 10 May 2019. The Court is satisfied that [10]-[19] in those written submissions accurately summarise the factual background of this matter. That summary was not disputed and the Court adopts it as its own. Relevantly, other than as edited below, that summary provides as follows.
The applicant’s visa was granted on 26 November 2013. It was a condition of the visa that the applicant be enrolled in a full-time registered course (condition 8202 of the Migration Regulations 1994 (Cth), Schedule 8).
On 11 November 2016, a notice of intention to consider cancellation (the “NOICC”) of the visa pursuant to s.116 of the Act was sent to the applicant (CB 2).
The NOICC stated that it appeared that the applicant had not been enrolled in a registered course since 6 April 2016, contrary to condition 8202(2).
On 24 November 2016, the applicant (through his representative) made written submissions in response to the NOICC (CB 17-26).
Those submissions contended:
a)the applicant travelled to India on 20 January 2016 and returned to Australia on 7 March 2016. The purpose of that travel was to visit the applicant’s mother. She was ill and wanted to see her son (CB 19);
b)upon his return to Australia, the applicant suffered medical issues which rendered him immobile. A doctor recommended surgery. The applicant took medication for a further month but did not improve. He travelled to India on 6 May 2016 for the purposes of receiving medical treatment and subsequently returned to Australia on 7 July 2016 (CB 19);
c)at some point prior to or shortly after his travel to India in May 2016, the applicant requested his education provider defer his course as he was not then in a position to continue full-time study (CB 19);
d)the applicant continued to experience medical issues and resumed his course of study on 14 November 2016 (CB 19 and 21); and
e)the applicant sought an opportunity to continue his studies in Australia (CB 19 and 21).
On 1 December 2016, the applicant was notified that his visa had been cancelled pursuant to s.116 of the Act (CB 28-32). The reasons for the delegate’s decision were provided with this notification (CB 34-38).
On 3 December 2016, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 45-46).
On 5 October 2018, the applicant was invited to attend a hearing before the Tribunal in relation to his application for review (CB 54).
The Tribunal heard the applicant’s application for review on 29 October 2018 (CB 61).
The applicant gave oral evidence to the Tribunal and relied on documentary records relevant to his studies (CB 64).
In summary, the information provided was as follows:
a)his purpose in travelling to and remaining in Australia was to study (CB 69);
b)he accepted that he had not been enrolled in a registered course for a period of time, namely from April 2016 until November 2016 (CB 69);
c)he had not been enrolled in a course during that period because he had a health issue relating to his back. The applicant received medical advice from an unnamed doctor that it was preferable for the applicant to return to India to have his health issue treated there because there was a lengthy recovery period and the applicant had advised his doctor that he did not have “anyone” in Australia (CB 69);
d)he travelled to India on 5 May 2016 and returned to Australia on 7 July 2016 (CB 69);
e)upon his return to Australia, the applicant was still unwell and was unable to return to his studies as a result of his ill-health (CB 70);
f)if he was able to resume or continue studying in Australia, the applicant would seek to complete an advanced diploma of management and a degree. Upon completion of that course of study, the applicant would seek to remain in Australia for a further 2-3 years and then return to India (Transcript, p.15);
g)in response to a question from the Tribunal about what hardships he would suffer if his visa was cancelled, the applicant answered that he would not have a future as having a good job was dependent upon having a degree (CB 30);
h)when asked by the Tribunal whether there was anyone else in Australia who would be affected by his visa cancellation, the applicant replied that “…[i]t won’t affect - but it will affect my girlfriend and my baby”. The applicant explained that his partner and child are in Australia but that his partner is also an Indian citizen who is “studying independently” with “her own student visa” (CB 70); and
i)the applicant was asked whether there was any other submission he wished to make about why his visa should or should not be cancelled. In reply, he said “I have told you everything but I just request that you please give me at least one opportunity to do my study here” (Transcript, p.16).
Tribunal Decision
The Minister’s written submissions correctly summarise the Tribunal’s decision. That summary is not argumentative and was not disputed. The Court adopts it as its own. It provides as follows.
The Tribunal explained its approach to the matter before it as follows (CB 71 at [16]):
Having found that the applicant has not complied with a condition of the visa the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The Tribunal then identified eight matters which had been considered in deciding whether the applicant’s visa ought to be cancelled:
a)the purposes of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia (CB 71 at [17]-[20]);
b)the extent of compliance with the visa conditions (CB 71 at [21]);
c)the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the visa is cancelled (CB 71-72 at [22]-[23]);
d)the circumstances in which the relevant ground of cancellation arose – noting that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control (CB 72 at [24]-[26]);
e)past and present behaviour of the visa holder towards the Department (CB 72 at [27]);
f)whether there would be consequential cancellations under s.140 of the Act (CB 72 at [28]);
g)whether there are mandatory legal consequences which would arise as result of a cancellation of the visa (CB 73 at [29]);
h)whether any international obligations (including non-refoulement obligations and the best interests of the children as a primary consideration) would be breached as a result of the cancellation (CB 73 at [30]); and
i)any other relevant matters. The Tribunal here had regard to the fact that the applicant had re-enrolled but found that this appeared to be in response to the NOICC, rather than for genuine reasons (CB 73 at [32]).
The Tribunal explained that it had considered the applicant’s circumstances individually and cumulatively (as against the criteria identified above).
Whilst the Tribunal was satisfied that there were certain aspects of the applicant’s case which weighed in his favour, it was satisfied on balance that the considerations weighed heavily against the applicant (CB 73 at [33]-[34])
Ultimately, the Tribunal upheld the delegate’s decision to cancel the visa.
Proceedings in this Court
The matter came on for hearing on 17 May 2019.
The applicant appeared without legal representation. He appeared with the assistance of a Punjabi interpreter. The Court thanks the interpreter for their assistance.
A Registrar of this Court made orders on 20 February 2019 allowing the applicant to file an amended application, any supporting affidavits and an outline of submissions prior to the hearing of this matter. Nothing further was provided by the applicant.
In addition to written submissions, the Minister also filed an affidavit of Faye Heather Lawson on 6 May 2019. This affidavit was filed out of time. The affidavit provides the transcript of the applicant’s hearing before the Tribunal and, but for necessary information as to the deponent and how the transcript was obtained, does not otherwise seek to introduce evidence.
For the following reasons the Court grants leave for the Minister to file the affidavit:
a)the evidence that it contains (via the transcript) is known to the applicant;
b)the affidavit is relevant to the matters in issue;
c)the affidavit was filed 10 clear days before the hearing so that, although out of time, there was sufficient time to consider that evidence before the hearing; and
d)the Court is satisfied that granting leave for the affidavit to be relied on will not cause prejudice to the applicant.
Accordingly, an order will be made granting leave for the Affidavit of Faye Heather Lawson dated 6 May 2019 to be filed.
During the course of the hearing, the Court raised a further legal issue with the Minister (discussed below). Leave was given for the filing of further written submissions. Those supplementary submissions were received on 29 May 2019. The applicant was provided an opportunity to reply but did not do so.
Judicial Review Application
The applicant’s application raises ten “grounds of review”. Those grounds provide as follows:
1. My name is Gurjant Singh ….. and I am holder of Passport No. ….
2. I applied for and was granted a student visa on 26th November 2013 which was due to expire on 21st September 2017. I continued to be a genuine student and study during my visa.
3. On 11th November 2016, the immigration department told me they were considering cancelling my visa as I was not able to maintain my enrolment. I explain to them the compelling and compassionate reasons I could not enrol which was due to my medical problems. They did not consider this properly and cancelled my visa on 1st December 2016.
4. I then apply to Administrative Appeals Tribunal (AAT) for a review of this decision and I explained to them all the reasons why I genuinely could not enrol and told them about my medical problems. I attended hearing for this on 29th October 2018 as well to give more evidence and to explain my situation.
5. The AAT did not consider my reasons fairly and affirmed the decision of immigration department on 11th December 2018.
6. I believe that both the AAT and Department of Home Affairs did not consider the facts, reasons and evidence I provided to support my application.
7. The unfair decision of the department and AAT will have a horrible impact on mine and my family’s life and I would like Federal Circuit Court to consider this when looking at my case.
8.I think AAT has made jurisdictional error in making decision for my application and I would like the Federal Circuit Court to review this.
9. I would like the court to find this jurisdictional error so that my application will be returned to the AAT for further reassessment.
10. I can provide the court any information they need to help me in this situation and I thank the court for taking time to consider my application.
(Identifiers omitted)
The applicant’s grounds of review lack substance. A number of the grounds narrate the factual history of the proceedings, rather than articulating a claim of jurisdictional error.
The Court is mindful of the decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] whereby His Honour commented that the consequences of a failure to particularise will depend upon the circumstances. It is generally more appropriate for an applicant to be offered an opportunity to orally explain what the grounds of their application entail. This approach was recently confirmed by Justice Anastassiou in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7] as applicable to a non-protection visa context.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28] (“Li”); Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal decision or grant him the visa he seeks. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
The applicant was asked what he thought the Tribunal “did wrong”. Unfortunately, he added little of substance. In effect, he referred to his medical records and stressed that he was not medically fit to study.
Overall, the applicant seemed to point to the merits of the Tribunal’s decision – explaining to the Court why he was not enrolled. While the Court is sympathetic, matters of this sort are not relevant to a judicial review of this sort.
The Court asked the applicant about a statement he made at the Tribunal hearing – ie, that his lawyer had told him he could no longer study. The Court will address this issue below.
Consideration
The Court agrees with the Minister that, based on what is contended in the application, there appear to be three potential grounds of review:
a)the Tribunal did not ‘fairly’ consider the applicant’s reasons for failing to maintain his enrolment (paragraphs [4] and [5] of the application) (“Ground One”);
b)the Tribunal did not consider the ‘facts, reasons and evidence’ the applicant provided in support of his application (paragraph [6] of the application) (“Ground Two”); and
c)the decision to cancel the applicant’s visa would have a ‘horrible impact’ on the applicant’s and his family’s lives (paragraph [7] of the application) (“Ground Three”).
The Court notes that insofar as paragraphs 1, 3, 6 and 7 of the grounds of review refer to the Immigration Department (arguably a reference to the delegate’s decision), the Court is unable to review that decision as it is a “primary decision” and not within the jurisdiction of this Court: per s.474 of the Act.
As for the other “grounds of review”, these are statements of fact (paragraphs [1]-[3]) or pleas to the Court for assistance (paragraphs [8]-[10]). None of these “grounds” give rise to jurisdictional error.
Ground One
In relation to the applicant’s claim that the Tribunal did not consider the applicant’s reasons for failing to maintain his enrolment ‘fairly’, the Court agrees with the Minister’s submissions and notes as follows.
“Fairness” in this context seems to relate to whether there was a failure to provide procedural fairness.
It is well established that procedural fairness is concerned with the fairness of the process followed in reaching a decision – not with the fairness of the decision itself: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88, [16] citing and following Kioa v West (1985) 159 CLR 550 at 622.
In this case, the applicant was afforded an opportunity to put forward information and evidence that explained his failure to comply with condition 8202(2) of the visa and otherwise as to why the visa should not be cancelled.
The applicant explained his situation and the Tribunal considered what was said. The Tribunal accepted some of the applicant’s explanations but not all of them.
The Tribunal accepted that the applicant had been unwell for a period of time in 2016. However, the Tribunal did not accept that that period of ill-health applied to the entire period for which the applicant had not been enrolled in a relevant course.
Further, the Tribunal did not accept that the applicant’s education provider would have given a “verbal indication that it was ok” for the applicant not to attend his course whilst he was being treated for an illness and then cancel his enrolment (CB 76 at [25]-[26]).
These findings were open to the Tribunal on the evidence before it (evidence which had been provided by the applicant himself).
Having given the applicant an opportunity to provide evidence relevant to his application for relief and having then considered and relied upon that evidence to reach available findings of fact, it cannot be said that there has been a failure here to provide procedural fairness.
Further, there is nothing to suggest the Tribunal breached the exhaustive procedural fairness obligations provided in pt.5, div.5 of the Act (s.357A). To summarise:
a)the applicant was invited to a hearing before the Tribunal to provide evidence and arguments: s.360 of the Act. While the applicant’s representative was not present at the hearing, the applicant did have the benefit of a representative to assist in the preparation of his review before the Tribunal (CB 69 at [5]);
b)a Punjabi interpreter assisted the applicant. There do not appear to have been any difficulties or issues raised by the applicant during the hearing with the interpretation provided. Nor do any issues arise on the face of the Transcript; and
c)there is nothing in the decision record or on the Transcript that would lead a reasonable fair-minded lay observer to believe the Tribunal was displaying bias or prejudgment.
Any contention that there was “unfairness” here cannot be sustained. What the applicant submits is, in effect, an argument that he disagrees with the Tribunal’s decision. He seeks merits review – a review that this Court cannot undertake: Wu Shan Liang at 272.
Ground Two
In relation to whether the Tribunal erred by failing to consider the ‘facts, reasons and evidence’ before it, the applicant (at paragraphs 3 and 4 of the application) refers to the failure to consider the genuineness of his explanation that he could not enrol because of his medical problems.
It was not disputed that the applicant provided verifying medical reports.
The Tribunal expressly dealt with the applicant’s medical problems at [24]-[26] of its decision. It acknowledged all the “evidence” the applicant provided in the form of medical reports and receipts. Further, it accepted that the applicant suffered a medical condition for around two and a half months in 2016.
However, the Tribunal noted there was an absence of medical evidence after 7 July 2016. It also noted that the medical certificate stated that the applicant was only unable to study from 1 to 29 April 2016. The applicant was not enrolled in any course from 6 April 2016. The Tribunal reasoned that, notwithstanding the accepted medical problem, the applicant was not enrolled for 7 months of 2016 without adequate explanation or independent evidence in relation to the whole period.
The Court is satisfied that the Tribunal addressed the applicant’s medical problems sufficiently. In the absence of any explanation for the period not covered by the medical evidence, it was logical and reasonable for the Tribunal to conclude that the absence of enrolment for that seven month period (after the medical illness) was a factor weighing against the exercise of the discretion and in favour of the visa being cancelled.
There is no jurisdictional error evident as per ground 2.
Ground 2, accordingly, is dismissed.
Ground Three
In relation to the applicant’s contention that the Tribunal’s decision will have a “horrible impact” on him and his family, on its face no reviewable error arises.
If the applicant is alleging that the Tribunal did not consider the consequences for the applicant or his partner or child in the event that his visa is cancelled, the Court agrees with the Minister and is not satisfied that that submission can be made out.
The Court observes that, in its decision, the Tribunal refers to the applicant’s “wife”. The evidence the applicant provided was that he had a “girlfriend” with whom he shares a child. Nothing turns on this point. It is clear that while this is an error in characterising the nature or status of the relationship, the error here in no way inhibited the Tribunal from undertaking its statutory task or was material to the outcome: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780.
In undertaking its review function, the Tribunal’s decisions “must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains”: Li at [10].
The Court notes that the Tribunal did consider the impact of cancelling the visa having regard to the evidence which the applicant advanced.
At [20], the Tribunal considered the applicant’s “wife” and their child and determined that it was not satisfied that the evidence provided offered a compelling reason for the applicant to remain in Australia:
The applicant advised he has a wife and child in Australia. The applicant’s wife is also an Indian citizen, who it was submitted, is studying independently of him and holds her own visa. If the applicant’s visa is cancelled, his wife may decide to return to India with the applicant, or continue her studies before returning to her home country. That is a matter for the parties themselves to decide. In summary, the Tribunal considers the applicant has not demonstrated a powerful or convincing reason for staying in Australia and is not satisfied the applicant has a compelling need to remain.
Without context, this assessment might at first seem “harsh”. However, read in context, it cannot be said that this finding was not open to the Tribunal.
There was limited evidence before the Tribunal as to what impact the visa cancellation would have on the applicant’s partner and child (noting [23] in this regard). There was no evidence, for example, that the applicant’s partner and child would suffer financial or psychological harm if the applicant’s visa was cancelled. The available evidence was, simply, that the applicant had a partner and child in Australia and that his partner had a visa in her own right. There was no evidence that the applicant’s partner could not or would not return to India with the applicant. The Tribunal reasoned that whether the applicant and his partner returned together or whether the applicant’s partner remained in Australia to complete her studies “was a matter entirely for them”. Given the limited evidence before it, there was nothing illogical or unreasonable in the Tribunal reasoning as it did.
The Court is satisfied that the Tribunal considered the applicant’s family to the extent it was able to on the limited information before it. The reasons it gave for not finding this to be a compelling reason or as causing hardship were sound. It cannot be said that no reasonable decision-maker could have reasoned in the same way.
Ground 3, accordingly, is dismissed.
Additional issue
As indicated, the Court raised a further issue with the Minister that had not been addressed in written submissions.
The Court referred the Minister to [9] of the Tribunal decision where the Tribunal states:
…the applicant said he had wanted to finish studies in Human Resource Management. The applicant agreed he had re-enrolled to study an Advanced Diploma in Leadership and Management in November 2016 after paying for fees. However, the Department still cancelled his visa. The applicant said he did not continue with the course because he was advised by his representative that he no longer had study rights.
Paragraph 9 of the Tribunal’s decision appears to provide a summary of what occurred at the Tribunal hearing. The Tribunal Transcript provides:
MEMBER: Okay. So after this Diploma of Management what did you want to go on and study after that?
INTERPRETER: Because I asked the college to enrol me in a new course. But they said, “You have already been reported, we can’t do anything”.
MEMBER: But apart from the college not enrolling you what had you intended to study after Diploma of Management? What did you want to study?
INTERPRETER: I just wanted to finish my human resource management, work sector
MEMBER: Yes. So the Immigration Department say that in November you were enrolled in another course, in November 2016.
INTERPRETER: When I told the college that Immigration has cancelled my visa - - -
MEMBER: Yes.
INTERPRETER: - - -they said you pay us this much amount and we can enrol you in a new course.
MEMBER: So what did you enrol in, then? Is that leadership and advanced diploma?
MR SINGH: Yes, that’s leadership. Yes.
MEMBER: Yes, okay. So you enrolled in that in November 2016?
INTERPRETER: Yes, Member.
MEMBER: And what happened about your study of that course?
INTERPRETER: Because earlier I received mail from Immigration that, you haven’t been attending - - -
MEMBER: Yes.
INTERPRETER: - - -that course. You know, the days you mentioned earlier?
MEMBER: Yes.
INTERPRETER: And then I enrolled in this. But after that they cancelled my visa.
MEMBER: But if you had enrolled in that course why didn’t you just continue with that?
INTERPRETER: Because the lawyer to whom I used to lodge this application in AA T, he advised me that you don’t have study rights in Australia.
…
(Transcript, pp.12-15)
At [32], the Tribunal concluded:
32. The Tribunal took into account the fact that the applicant re-enrolled to study an Advanced Diploma of Leadership and Management on 18 November 2016 but this appears to have occurred in response to the Department’s Notice of Intention to Consider Cancellation rather than for genuine reasons.
The concern the Court has here is whether the Tribunal’s finding that the applicant’s re-enrolment was not for genuine reasons was in part premised on the fact that the applicant did not continue with the course – particularly in circumstances where the applicant says he did not attend because his lawyer said he could not. The question put to Counsel was: if any weight was attached to his non-continuation, should the Tribunal have addressed it and explained why it was still of the view that the re-enrolment was not genuine?
The Court notes the Minister’s summary of the evidence that was before the Tribunal. In particular, the Court notes that:
a)at an unidentified point before November 2016, the applicant was advised by his education provider that it had reported his non-attendance (in other courses) to the Minister (or his Department);
b)the applicant was advised by his education provider that upon payment of fees, he could be (and then was) re-enrolled in his studies, however that the report of non-attendance was not a matter which could be altered;
c)on 11 November 2016, the Minister gave the applicant the NOICC;
d)on 18 November 2016, the applicant enrolled in a new course of study, being an Advanced Diploma of Leadership and Management;
e)the applicant did not attend, or ceased attending, classes or other sessions in his Advanced Diploma of Leadership and Management because “the lawyer to whom [the applicant] used to lodge this application” in the Tribunal advised the applicant he did not have “study rights” in Australia.
In this context, the Court also notes the Tribunal’s findings at [19] as follows:
The applicant said he wanted to stay in Australia to complete a degree in order to get a good job. He did not provide details of plans for the future or why it was necessary for him to obtain a Bachelor degree. While the applicant may wish to continue studying, the Tribunal considers that without a particular purpose, this is not a sufficiently compelling reason.
Having assessed the Tribunal’s analysis overall, the Court does not see anything in the Tribunal’s assessment of “genuineness” that leads the Court to conclude that the Tribunal’s assessment relies on or is grounded in the fact that the applicant failed to attend classes.
Rather, what the Tribunal relies on is a timeline that indicates that the re-enrolment occurred after the NOICC was received and within a context in which no particular purpose for study was identified. Attendance or non-attendance is neither here nor there in this context.
It was reasonable in these circumstances for the Tribunal to form the view that enrolment post-NOICC was not for a genuine purpose.
No jurisdictional error arises in relation to this issue.
Conclusion
Overall, the Court is satisfied that the Tribunal considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicant.
The Court is also satisfied that the Tribunal’s decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal.
There is no jurisdictional error demonstrated by the applicant’s sixteen grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 27 June 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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