Singh v Minister for Immigration
[2019] FCCA 1182
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1182 |
| Catchwords: MIGRATION – Judicial review – citizen of India – higher education visa cancellation affirmed by Administrative Appeals Tribunal – whether failure to consider relevant material – adverse findings – whether illogical and unreasonable exercise of discretion – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.3.05 Migration Act 1958 (Cth), Pt.7, Div.4, ss.116, 422B, 425, 476, 477 Migration Regulations 1994 (Cth), sch.2, cll.573.223(1A), 573.231, sch.8 |
| Cases cited: Ates v Minister of State for Immigration & Ethnic Affairs (1983) 67 FLR 449 |
| Applicant: | HARMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 389 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Raftos |
| Solicitors for the Applicant: | Shahid Shakur |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the application filed 7 February 2017 to extend time in which to amend the application filed 24 August 2015 be dismissed.
That the application filed 24 August 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 389 of 2015
| HARMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 28 July 2015. The Tribunal affirmed the decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to cancel the applicant’s Subclass 573 Higher Education Sector visa (“Student Visa”) under s.116 of the Migration Act. The Tribunal Decision appears at Court Book (“CB”) 159-163.
Applicable Legislation
Provisions of the most relevant applicable legislation are set out hereunder.
The power to cancel a visa where a condition has been breached is discretionary and contained in s.116(1)(b) of the Migration Act:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa; or
(Section 116(2) and (3) of the Migration Act are not presently relevant).
Neither s.116 of the Migration Act nor the Migration Regulations 1994 (Cth) (“Migration Regulations”) set out any mandatory considerations for the Minister in the exercise of discretion to cancel a visa, and the discretion is broad, but must be exercised reasonably: Gupta v Minister for Immigration & Border Protection [2017] FCAFC 172; (2017) 255 FCR 486; (2017) 161 ALD 1 at [53]-[54] per Gilmour, Logan and Mortimer JJ.
Condition 8516 of Sch.8 to the Migration Regulations states:
The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
(“Condition 8516”).
Clause 573.231 of Sch.2 to the Migration Regulations provides that:
If the applicant is not an eligible higher degree student, or does not have a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; …
Background Prior to Tribunal Hearing
On 20 May 2014, the applicant was granted a Student Visa with conditions attached, one of those being Condition 8516 which required the applicant to continue to satisfy the primary or secondary criteria for the grant of the Student Visa: CB 1-5.
The Department of Immigration & Border Protection (“Department”) issued the applicant with a Notice of Intention to Consider Cancellation (“NOICC”) in respect of the Student Visa by emails dated 21 and 24 November 2014: CB 8-12 and 13-19.
The NOICC indicated that there appeared to be a ground for cancelling the Student Visa on the basis that the applicant had breached Condition 8516.
The applicant responded to the NOICC on 24 November 2014 attaching submissions and a copy of a Cambridge International College Written Agreement dated 21 November 2014: CB 20-30.
On 19 January 2015 the Delegate decided to cancel the Student Visa pursuant to s.116(1)(b) of the Migration Act: CB 38-47.
On 21 January 2015, the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 48-49.
On 18 June 2015 the applicant was invited to appear before the Tribunal on 20 July 2015: CB 55-57 (“Tribunal Hearing”).
The applicant’s migration agent emailed the Tribunal on 12 July 2015 attaching submissions, certificates of enrolment, academic records, media articles, PRISMS printouts, affidavits and various other documents: CB 58-120.
The applicant attended the Tribunal Hearing with his migration agent on 20 July 2015: CB 125-128.
On 27 July 2015 following the Tribunal Hearing the applicant’s migration agent emailed the Tribunal further submissions, enrolments, emails and bank statements: CB 129-155.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)considered the grounds for cancellation, and:
i)found that Condition 8516 was attached to the Student Visa, and required the applicant to meet the primary or secondary criteria for the grant of the Student Visa, which included cl.573.231(a) of sch.2 of the Migration Regulations, being that the applicant must be enrolled in, or subject of a current offer of enrolment, in a course of study which is the principal course of study: CB 160 at [7];
ii)found that the applicant was granted the Student Visa on the basis of him being enrolled in a Diploma of Information Technology (“IT Diploma”) at Murdoch University finishing on 29 May 2015 and a Bachelor of Science commencing on 17 July 2015: CB 160 at [8] (the Court notes that the reference at CB 160 at [8] to the applicant “commencing” his IT Diploma at Murdoch University on 29 May 2015 is incorrect, and that this is in fact the finishing date of the IT Diploma: CB 72, but the mistake of fact is immaterial for present purposes);
iii)noted that the applicant withdrew from the IT Diploma and later re-enrolled in a Bachelor of Business degree: CB 160 at [9];
iv)noted that the applicant had enrolled in a Certificate III in Commercial Cookery commencing on 5 September 2014 leading to a Certificate IV in Commercial Cookery and a Diploma in Hospitality: CB 160 at [9];
v)noted that the applicant did not dispute the Delegate’s finding that he was not enrolled in, or subject to an offer of enrolment in, a bachelor degree course following his withdrawal from the IT Diploma at Murdoch University in September 2014: CB 161 at [10];
vi)noted that the applicant had provided an enrolment application form indicating his interest in a Bachelor of Business as of 17 November 2014, however the Tribunal was satisfied that from September to November 2014, after the applicant withdrew from the IT Diploma he was not enrolled in, and did not hold an offer of enrolment in, a bachelor degree course and was therefore in breach of Condition 8516 for approximately two months: CB 161 at [10]; and
vii)was satisfied, for the above reasons, that the ground for cancellation of the Student Visa in s.116(1)(b) of the Migration Act existed: CB 161 at [11]; and
b)in considering whether to exercise the discretion to cancel in s.116(1) of the Migration Act:
i)noted that the ground for cancellation in s.116(1)(b) of the Migration Act did not require mandatory cancellation, and that the Tribunal would therefore consider whether it should exercise its discretion to cancel the Student Visa with regard to relevant circumstances, including the matters identified in the Department’s Procedures Advice Manual PAM 3 (“PAM 3 Guidelines”): CB 161 at [11]-[12];
ii)although it invited the applicant to provide evidence of his difficulties with the IT Diploma course, all that the applicant provided was an email from student services at Murdoch University dated 5 August 2014 making an appointment with him to discuss strategies that could assist him to achieve results, but the applicant did not provide any evidence he had actually met with student services: CB 161 at [13];
iii)invited the applicant to provide evidence in the form of bank statements to enable the Tribunal to endeavour to assess whether or not the applicant was working during the period of his IT Diploma course, and concluded that the applicant appeared to have been working in the period following his withdrawal from the IT Diploma, based upon the bank statements the applicant provided: CB 161 at [14];
iv)enquired as to why the applicant had changed his academic interests from information technology and science to cookery leading to a Bachelor of Business, to which the applicant indicated that he did not want to be a cook but wanted to understand the procedure of cookery to enable him to run a restaurant in the Punjab area which had potential for tourism and hospitality: CB 161 at [15];
v)was not satisfied that the applicant had genuinely attempted to study the IT Diploma because it was too difficult, noting that the applicant had provided little evidence in support of his genuinely attempting to undertake the IT Diploma course, even though the Tribunal had invited him to provide evidence such as assignments, assessments, or evidence from teaching staff to undertake the study requirements, and the email that the applicant provided from Murdoch University showing that student services had initiated a meeting to discuss strategies to assist him, but no evidence that he actually attended the meeting: CB 162 at [19];
vi)found that the applicant’s bank statements showed he had been “frequently employed and had been working for several different employers”, and noted that no written submissions were made in relation to the applicant’s work activity: CB 162 at [20];
vii)found that the evidence indicated the applicant was quite motivated to work in Australia and that his interests may be more related to work than study in Australia, and considered that the applicant may also have been exceeding his permitted work hours under his Student Visa conditions: CB 163 at [23], and that this suggested that his work may have been responsible for his inability to complete the IT Diploma and that the applicant may have been more interested in work than studying: CB 162 at [21];
viii)was not satisfied that the applicant had a genuine commitment to completing higher education in Australia as it appeared that he had enrolled in a further course of study giving him the maximum time and opportunity in Australia and had set back the bachelor degree course considerably: CB 162-163 at [22]; and
ix)found that the potential hardships faced by the applicant as a result of the cancellation, including the disappointment and possible stigma in society, the cost to date and potential loss of opportunity in India, did not sufficiently outweigh the Tribunal’s concern that the applicant did not have a genuine intention to study at a higher education level: CB 162 and [17] and 163 at [24]-[25]; and
c)considering the applicant’s circumstances as a whole, the Tribunal concluded that the Student Visa should be cancelled: CB 163 at [26] and affirmed the Delegate’s Decision: CB 163 at [27].
Judicial Review Application
On 24 August 2015 the applicant filed a Judicial Review Application containing the following grounds:
1. I came to Australia on a Student Visa subclass 573 on 28th May 2014 to start a course in Diploma of Information Technology at Kaplan Higher Education Pty Ltd (Murdoch Institute of Technology, Murdoch Language Centre) leading to Bachelor of Science at Murdoch University (Murdoch) in Perth
2. On 24 November 2014 I received an email by the department with Notice of Intention to Consider Cancellation (NOICC) and to respond within 5 days under Section sl16 (General Power) of the Migration Act 1958 (the Act).
3. I responded to Notice of Intention to Consider Cancellation (NOICC) on 24 November 2014 stating the circumstances that resulted in my changing the course from the original packaged course of Information Technology at Murdoch University to another packaged course at Cambridge International College (another SVP provider) in commercial cookery leading to Bachelor of Business (Management).
4. Despite my request not to cancel my SC 573 student visa, department issued me a letter of cancellation on 19 January 2015.
5. I lodged an appeal against the decision to Administrative Appeals Tribunal (Migration Review Tribunal) on 21 January 2015 vide MRT case number: 1500898
6. I was invited for a hearing in Perth AAT office on 20 July 2015 that I attended with my Migration Agent. In the hearing Tribunal Member asked me to provide further documents in 7days to show I am a genuine student who had difficulty in my previous course that motivated me to change my study pathway.
7. I provided the evidence through my Migration Agent yet the Tribunal Member affirmed the decision to cancel the applicant's Subclass 573 Higher Education Sector visa.
8. My appeal to this Honourable Court is to provide me with Natural Justice and set aside the decision of the Department of Immigration and Border Protection and set aside the decision made by Administrative Appeals Tribunal (Migration Review Tribunal).
(Transcribed verbatim).
Proposed Amended Judicial Review Application
Consent Orders made by a Judge of this Court on 24 June 2016, gave the applicant leave to file and serve any amended Judicial Review Application, including any affidavits in support of any application for an extension of time, on or before 15 July 2016.
On 7 February 2017 the applicant filed a Proposed Amended Judicial Review Application (“Proposed Amended Judicial Review Application”), the grounds of which are as follows:
The Second Respondent, in making its decision (or purported decision) of 28 July 2015 to affirm the decision of the delegate of the First Respondent to cancel the Applicant’s Subclass 573 Higher Education Sector visa under section 116 of the Migration Act 1958 (the Act) committed jurisdictional error in that it illogically and unreasonably:
1. concluded or suspected that the applicant was not a genuine student by failing to take into account the applicant’s subsequent enrolment in a course meeting the criteria under subclause 573.231, schedule 2 of the Migration Regulations 1994 (Cth); and
2. failed to take into an account a relevant consideration, namely the period for which the applicant was enrolled in his original course before cancelling his enrolment.
3. made adverse findings against the applicant in relation to his genuineness as a student based on suspicion and not findings of fact based on probative evidence.
(Transcribed verbatim).
Extension of time application
In the Proposed Amended Judicial Review Application the applicant seeks an extension of time (“Extension of Time Application”) to amend the Judicial Review Application under s.477 of the Migration Act. The extension of time required in this case is, however, one under r.3.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to extend time for the filing of the Proposed Amended Judicial Review Application which has been filed almost seven months after the time prescribed by the June 2016 Consent Orders.
The applicant filed an affidavit of Mr Shahid Shakur on 14 February 2017 (“Mr Shakur’s Affidavit”) in support of an unspecified application for an extension of time. At hearing Counsel for the applicant indicated that Mr Shakur’s Affidavit had been intended to be relied upon in relation to seeking an extension of time to file submissions, but that the applicant did not intend to rely on Mr Shakur’s Affidavit at all: Transcript, page 2. The Court has therefore not had any regard to the content of Mr Shakur’s Affidavit.
The grounds of the Extension of Time Application as set out in the Proposed Amended Judicial Review Application are as follows:
(1) The Applicant seeks an extension of time to amend the application to:
(a) reduce the number of grounds relied by the Applicant; and
(b) further clarify the grounds relied upon,
such amendments are likely to lead to a more efficient resolution of the application which is listed for hearing on 2 March 2017.
(2) The Applicant’s solicitor has conferred with the Respondent’s solicitors on 6 February 2017 and their clients is considering to consent to the applicant’s application for extension of time.
(3) The Applicant respectfully submits that in the interests of the administration of justice the time for filing of the amended application and the supporting affidavit may be extended.
(Transcribed verbatim).
The three grounds as set out above at [23] seek to rely on the principle of efficiency in the administration of justice and that this will be achieved if leave were granted to extend time for the applicant to rely on the Proposed Amended Judicial Review Application.
The applicant’s written submissions did not address the grounds of the Extension of Time Application and simply focussed on the three grounds as set out in the Proposed Amended Judicial Review Application. At hearing the applicant made no submissions concerning the Extension of Time Application.
The Minister’s written submissions observed that leave would be required by the applicant to rely upon the Proposed Amended Judicial Review Application, and that the Minister neither consented to nor opposed leave being granted, and addressed the three grounds in the Proposed Amended Judicial Review Application in any event.
The non-exhaustive list of factors to which regard ought to be had when considering extension of time applications under r.3.05 of the FCC Rules are well settled (see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315), and are as follows:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the other party; and
d)the merits of the amendment sought.
Extent of delay
The June 2016 Consent Order provided that the applicant file the Proposed Judicial Review Application by 15 July 2016. In this case there was a significant delay of 214 days before the Proposed Amended Judicial Review Application was filed on 7 February 2017.
In Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470; (2000) 177 ALR 491 (“Marks”) at [16] per McHugh J the High Court observed that:
… As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy, “[t]he rules of court must prima facie be obeyed”... In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this Court.
The Court must not only look at the explanation for the delay, but also at the extent of the delay: SZNOR v Minister for Immigration & Anor [2009] FMCA 639 at [14] per Scarlett FM. The Court observes that the Judicial Review Application was made within the 35 day time limit prescribed by s.477(1) of the Migration Act, but then a further 10 months passed until the June 2016 Consent Order was made allowing a further three weeks to file the Proposed Amended Judicial Review Application (and by which time the applicant was legally represented), but that that time limit was not complied with, and it was a further almost seven months before the Proposed Amended Judicial Review Application was filed. The Court cannot overlook the fact that the Proposed Amended Judicial Review Application has been filed at least 17 months after the time prescribed by s.477(1) has expired, and that it would appear that for almost half of that time, the applicant was legally represented.
It is generally recognised that the longer the delay the more persuasive an explanation needs to be in order to justify an extension of time: Jess v Scott (1986) 12 FCR 187; (1986) 70 ALR 185; FCR at 195 per Lockhart, Sheppard and Burchett JJ; Tran v Minister for Immigration & Border Protection [2014] FCA 533 (“Tran”) at [38] per Wigney J.
The delay is significant and must weigh significantly against the extension of time sought.
Explanation for delay
The applicant has not provided any evidence at all in relation to the delay. The applicant thus provides no explanation for the delay, and no explanation as to why there was no explanation for the delay.
In SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the Federal Court observed that the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J; WZATA v Minister for Immigration & Anor [2016] FCCA 305 at [10] per Judge Lucev.
In the above circumstances the Court is of the view that there is no satisfactory explanation by the applicant for the delay of almost seven months, and that the length of that delay, both of itself, and in the context of the Proposed Amended Judicial Review Application being filed almost 17 months after the expiry of the statutory time limit in s.477(1) of the Migration Act, and that during a substantial period of that 17 months the applicant was legally represented, required that there be a satisfactory explanation for the delay, and the absence of any explanation weighs heavily against the grant of an extension of time in which to file the Proposed Amended Judicial Review Application.
Prejudice
The Minister did not make any written or oral submissions in relation to prejudice. The absence of prejudice to the Minister in itself is not sufficient to warrant the grant of an extension for time: SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
In the circumstances the Court is of the view that this factor does not weigh against the Court extending time to allow the applicant to rely upon the Proposed Amended Judicial Review Application, but nor, in the circumstances, does it weigh in favour of it.
Merits of the Proposed Amended Judicial Review Application
Prospects of success
The Court should not exercise its discretion to extend time, even for a short period, if the Proposed Amended Judicial Review Application has no prospect of success: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319 at [39] per Foster J, and it is not in the interests of the administration of justice to use the resources of the Court where there is no real prospect of success were an extension of time to be granted: MZZIV v Minister for Immigration & Border Protection [2013] FCA 1203 at [6] per Mortimer J.
It is not necessary for the applicant to positively establish that the application will succeed at final hearing: SZTES v Minister for Immigration & Border Protection [2015] FCA 719 (“SZTES”) at [48] and [102] per Wigney J. The Court need only examine the grounds of review in the Proposed Amended Judicial Review Application and determine if any ground might be arguable, reasonably arguable, or have a reasonable prospect of success: SZTES at [48] per Wigney J. Success in this context is to be measured by reference to the fact that the Tribunal Decision may be liable to be set aside on judicial review where it is found to be affected by jurisdictional error (as to which see [40] below).
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 (“Plaintiff S157/2002”) at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may establish jurisdictional error if the Tribunal; identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a Tribunal decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In particular circumstances a denial of procedural fairness may also establish jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
The Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Grounds
The Proposed Amended Judicial Review Application contains three grounds as outlined at [20] above.
Ground 1
Ground 1 is unlikely to succeed because the Tribunal plainly did take into account the applicant’s subsequent enrolment in the commercial cookery courses when determining that he was not a genuine student. The Tribunal specifically:
a)when assessing the applicant’s work record according to the bank statements he provided, referred to the period when he commenced the Certificate III course in Commercial Cookery: CB 161 at [14];
b)questioned the applicant as to why he changed his academic path to take up the Certificate III course in Commercial Cookery (to be followed by the Certificate IV in Commercial Cookery, a Diploma in Hospitality and a Bachelor of Business) instead of the IT Diploma and noted the reasons as to why the applicant said he was undertaking cookery studies: CB 161 at [15];
c)noted that the applicant provided evidence of his financial ability to pay the fees for the subsequent Certificate IV course in Commercial Cookery: CB 162 at [18]; and
d)noted that under the applicant’s original enrolment he was due to commence his Bachelor of Science degree in July 2015, whereas under his current enrolment he was to commence the Certificate IV course in Commercial Cookery in August 2015, in relation to which the Tribunal observed that it “appears … he has enrolled in a course of study that provides maximum time and opportunity in Australia, and set back the Bachelor degree course considerably”: CB 162-163 at [22]. The starting date for the Certificate IV course in Commercial Cookery appears to be incorrect, the date on the confirmation of enrolment being June 2015, but this mistake of fact is immaterial for present purposes, the gist of the Tribunal’s reasoning being directed to the fact that the applicant was now enrolled to commence in the Bachelor of Business degree in May 2016: CB 30.
The reasoning in the Tribunal Decision is sufficiently comprehensive, and the question of the applicant’s enrolment in the Commercial Cookery courses is sufficiently identified, such that it cannot be said that it is arguable that the Tribunal failed to take into account the applicant’s enrolment in the Certificate III course in Commercial Cookery subsequent to his withdrawal from the IT Diploma, or his subsequent enrolment in other courses.
Ground 2
Ground 2 is unlikely to succeed given that the Tribunal did take into account the period of time the applicant was enrolled in the IT Diploma before he withdrew from it, and the Tribunal specifically referred to:
a)the applicant’s contention that the IT Diploma was too difficult but noted that “it is not clear why the course was so difficult that he had to withdraw from the course [with]in only three months of enrolment”: CB 162 at [19]; and
b)its concern that only three or four months after commencing the IT Diploma the applicant had had several employers and was working a great deal: CB 162 at [21].
In the above circumstances it is not arguable that the Tribunal “failed to take into account” the period for which the applicant was enrolled in the IT Diploma before cancelling that enrolment. If the issue in relation to this ground is whether the Tribunal gave enough weight to the fact that the applicant had been enrolled for some three to four months before withdrawing, that was a matter for the Tribunal as to how much weight it gave to that information as part of its fact-finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J.
In the above circumstances, it is not arguable in the Court’s view that the Tribunal failed to take into account the period of time the applicant was enrolled in the IT Diploma.
Ground 3
Ground 3 cannot succeed because the Tribunal did consider the probative evidence before making adverse findings which were open to it on that evidence, and in particular the Tribunal:
a)invited the applicant to provide evidence to support his claim that he was genuinely attempting to study the IT Diploma but found it too difficult. Although the applicant provided a copy of an email from student services demonstrating an appointment was made, he provided no evidence that he attended this appointment and discussed with student services his difficulty with the course: CB 138 and 161 at [13]. The applicant stated he was not very interested in studying information technology but was told to apply for it by his agent: CB 162 at [16]. The applicant was only enrolled in this course for three months before he withdrew and provided no evidence, such as assignments, assessments or from teaching staff that he had genuinely attempted to undertake the IT Diploma: CB 162 at [19];
b)was concerned that the applicant may have been working at the time he was supposed to be studying the IT Diploma, and that this may have contributed to him not being able to successfully complete it. The applicant said he was not working at the time and the Tribunal invited the applicant to provide his bank statements in order to assess his evidence. The applicant provided bank statements which indicated that he was working for several different employers, contrary to his evidence that he was not working, and that only some three to four months after he began his IT Diploma, he had worked for several employers and was clearly working a great deal: CB 161 at [14] and 162 at [20]-[21]; and
c)asked the applicant why he had changed his academic path from the IT Diploma and Bachelor of Science to the Commercial Cookery courses, Diploma of Hospitality and Bachelor of Business, and the applicant stated that he was from a farming family in the Punjab area where there was potential for hospitality and tourism and that he did not want to be a cook but wanted to learn the process of cookery in order to run a restaurant and hire cooks: CB 161 at [15]. The Tribunal found that the change in courses meant the commencement of the bachelor degree course was pushed back, therefore maximising the time and opportunity for the applicant to stay in Australia: CB 162-163 at [22].
Prospects of success – conclusion
Having regard to what is said above with respect to grounds 1, 2 and 3 of the Proposed Amended Judicial Review Application the Court is of the view that the Proposed Amended Judicial Review Application has no realistic prospect of success, and it follows that this factor therefore weighs against the grant of an extension of time for the filing of the Proposed Amended Judicial Review Application.
Basis
The Extension of Time Application is also not made out when regard is had to the basis upon which it is made. In essence, it is made on the basis that there will be a reduction in, and clarification of, the grounds, resulting in the more efficient resolution of these proceedings, if the amendments in the form of the Proposed Amended Judicial Review Application are granted. Ultimately, that is not so, because, for reasons set out below: see [92]-[93] below, the Judicial Review Application contains only one ground of review (being ground 8 of the Judicial Review Application), and that ground is not made out, and as set out at [93] below, is a ground which the Court was able to deal with very shortly. The Extension of Time Application to file the Proposed Amended Judicial Review Application has, therefore, had the reverse effect to that contended for in the grounds of the Extension of Time Application, namely, it has made the proceedings lengthier and more complex, and is therefore not made out on the basis upon which it is made.
Conclusions on Extension of Time Application
In the Court’s view, the extent of the delay, which is significant, combined with the fact that there is simply no explanation for the delay, would be factors which would, of themselves, have warranted dismissal of the Extension of Time Application. Combined with the fact that the Court is of the view that the grounds of the Proposed Amended Judicial Review Application have no reasonable prospects of success, and that the Proposed Amended Judicial Review Application is not made out on the basis on which it was made, it follows that the Court will dismiss the Extension of Time Application for filing of the Proposed Amended Judicial Review Application.
Proposed Amended Judicial Review Application
Albeit the Court has dismissed the Extension of Time Application as it relates to the Proposed Amended Judicial Review Application, if that conclusion is found to be incorrect, the Court considers below the merits of the Proposed Amended Judicial Review Application.
At hearing the applicant’s Counsel confirmed that the applicant did not seek to challenge the Tribunal’s finding that the applicant had breached Condition 8516, and conceded that s.116(1) of the Migration Act applies: Transcript, pages 3 and 11. The issue was therefore whether the Tribunals’ exercise of its discretion under s.116(1) of the Migration Act gave rise to jurisdictional error on the grounds alleged in the Proposed Amended Judicial Review Application.
The three grounds of the Proposed Amended Judicial Review Application are based on the assertion that the Tribunal committed jurisdictional error by reason of illogicality and unreasonableness in respect of each of those grounds. In that regard the Court notes:
a)the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131] and [135] per Crennan and Bell JJ discussed the approach to be taken when asking whether the Tribunal’s fact finding was illogical:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
b)the Full Court of the Federal Court in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) FCR 437 summarised the standard to be adopted as to unreasonableness at [44] per Allsop CJ, Robertson and Mortimer JJ:
In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court's supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [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’: Giris Pty Ltd v FCT (1969) 119 CLR 365; [1969] HCA 5 at 383-384;. 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’: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
Ground 1
Applicant’s Submissions
The applicant submitted that:
a)a decision-maker may commit jurisdictional error by a failure to take into account a relevant consideration: The Queen v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13; (1980) 54 ALJR 314; (1980) 29 ALR 289;
b)a decision-maker must act “rationally” having regard to mandatory considerations, and a finding may be unreasonable if it is not based on an evident and intelligible justification: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [29] per French CJ, [63] per Hayne, Kiefel and Bell JJ and [88] per Gageler J;
c)unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or plainly unjust: Li at [28] per French CJ and [110] per Gageler J;
d)migration decisions should also be made “by reference to a liberal and even compassionate outlook”: Ates v Minister of State for Immigration & Ethnic Affairs (1983) 67 FLR 449 at 455-456 per Smithers J;
e)at CB 162 at [22] of the Tribunal Decision Tribunal states that it “is not satisfied that the applicant has a genuine commitment to completing higher education in Australia” but fails to reference this finding with any evidence in relation to the Commercial Cookery course the Tribunal had accepted he had enrolled in, and the Tribunal repeated this finding at CB 162 at [25];
f)there was no evidence before the Tribunal to support the finding that the applicant was not genuine in completing higher education in Australian. In SZTIF v Minister for Immigration & Anor [2014] FCCA 945; (2014) 285 FLR 251 at [25] per Judge Manousaridis the Court said that:
It therefore follows that the Tribunal [Second Respondent], when making a finding of fact based on evidence or the absence of evidence, must engage in reasoning that links the evidence or other matters before it with the findings of fact it makes on the basis of such evidence or other matters;
g)accordingly there was no rational basis to not consider the applicant’s subsequent enrolment in the Certificate III course in Commercial Cookery, and to infer no commitment by the applicant in completing higher education in Australia.
At hearing the applicant further submitted that:
a)there is nothing to suggest that the applicant had not attended classes, and on that basis the decision is an irrational decision: Transcript, page 3;
b)the applicant enrolled in another course prior to the NOICC being issued: Transcript, page 4;
c)the applicant did not push back his studies: he cancelled them and later re-enrolled: Transcript, page 4; and
d)the additional liability incurred by the applicant of $54,000.00 for his new enrolment was not considered by the Tribunal: CB 24: Transcript, page 5.
Minister’s submissions
The Minister submitted that:
a)section 116(1)(b) of the Migration Act provides that a visa may be cancelled if a visa holder has not complied with a condition of the visa. Condition 8516 was a condition of the applicant’s Student Visa, and required that the applicant continue to meet the primary or secondary criteria for the grant of the Student Visa: CB 3;
b)the evidence before the Tribunal was that the applicant withdrew from the IT Diploma in September 2014 and enrolled in a Certificate III in Commercial Cookery on 8 September 2014. The Tribunal referred to the applicant’s enrolment application form submitted in respect of a Bachelor of Business degree dated 17 November 2014: CB 135-137. Having considered this evidence, the Tribunal found that from September to November 2014, the applicant was not enrolled in a bachelor degree course: CB 161 at [10];
c)the applicant was not enrolled in a bachelor degree course at the time (having only enrolled in the Bachelor of Business course in November 2014), therefore the applicant did not satisfy cl.573.231(a) of the Migration Regulations, and further was not an eligible higher degree student for the purpose of c1.573.223(1A) of the Migration Regulations, and therefore did not meet the requirements for the grant of the Student Visa;
d)having found that the applicant was not enrolled in a bachelor degree course between September to November 2014, the Tribunal found that the applicant was in breach of Condition 8516 during this time. That factual circumstance was not overcome by obtaining an enrolment in a bachelor degree course at some future point: Singh vMinister for Immigration & Border Protection [2016] FCA 679 at [38] per Buchanan J;
e)that the applicant accepted there had been a breach of Condition 8516: CB 133.
f)the contention that the Tribunal failed to consider the applicant’s subsequent enrolment in the Certificate III course in Commercial Cookery in deciding whether to exercise its discretion to cancel the Student Visa is plainly incorrect, and the reasons of the Tribunal reveal that it did refer to and consider the applicant’s enrolment in that course: CB 161 at [14]-[15] and CB 162 at [18] and [22];
g)the Tribunal was not satisfied that the applicant had a genuine commitment to completing higher education in Australia. It appeared to the Tribunal that the applicant had enrolled in a course of study that provided maximum time and opportunity in Australia and set back the bachelor degree course considerably: CB 162 at [22]. These findings were open to it for the reasons it gave, including:
i)the applicant provided no independent evidence from Murdoch University of his commitment to the IT Diploma course;
ii)bank statements indicated that the applicant worked considerably during September and October 2014, the period in which the applicant commenced the Certificate III in Commercial Cookery; and
iii)under the applicant’s original enrolment he was due to commence his bachelor degree in July 2015, whereas under his current enrolment he was to commence a Certificate IV course in Commercial Cookery in August 2015; and
h)there is no jurisdictional error established by this ground.
At hearing the Minister made further submissions that:
a)the Bachelor of Science degree course which was the purpose of the higher education degree, was due to commence in July 2015 however the enrolment in the second bachelor degree was not due to start until May 2016 which is a significant delay: Transcript, page 12; and
b)the Tribunal did consider that studying in Australia had cost the applicant some money to date: CB 70 and 134, however, no specific submission was made by the applicant as to the outlay of the deposit made or any financial loss the applicant would suffer as a result of cancellation of the enrolment: Transcript, page 13.
Consideration – ground 1
The applicant’s contention is that, the Tribunal’s finding that he was not a genuine student failed to take into account the applicant’s subsequent enrolment in the Commercial Cookery course, meeting the criteria in cl.573.231(a) of sch.2 of the Migration Regulations, and therefore was illogical and unreasonable in its exercise of the discretion under s.116(1)(b) of the Migration Act.
The applicant was enrolled in a course of study including an IT Diploma which he withdrew from on 5 September 2014, and enrolled in a Certificate III in Commercial Cookery due to commence on 8 September 2014: CB 24, the reason for the variation in enrolment being given as “non-commencement of studies”: CB 30. The applicant did not apply to enrol in the Bachelor of Business course until 17 November 2014: CB 135-137.
It was open for the Tribunal to find that the applicant had not satisfied cl.573.231(a) of sch.2 of the Migration Regulations. For the period between September and November 2014 the applicant provided no evidence that he was enrolled in a bachelor degree course and therefore was in breach of Condition 8516, a fact not ultimately in dispute: Transcript, page 3.
The Tribunal Decision referred to and considered the applicant’s enrolment in the Certificate III course in Commercial Cookery in relation to exercising its discretion in s.116(1)(b) of the Migration Act. The Tribunal:
a)notes the applicant’s enrolment in a Certificate III course in Commercial Cookery, commencing 5 September 2014, leading to a Certificate IV in Commercial Cookery and a Diploma of Hospitality: CB 160 at [9] and 161 at [15];
b)the Tribunal sought clarification in relation to the applicant’s work and made a finding in relation to his work which refers to the period during which the applicant commenced the Certificate III course in Commercial Cookery: CB 161 at [14];
c)the Tribunal asked the applicant why he had changed his academic interests to the Certificate III and IV courses in Commercial Cookery and the applicant stated: CB 161 at [15]:
…that he came from a farming family and the Punjab area had potential for tourism and hospitality. He was studying cookery not because he wanted to be a cook but to understand the 'procedure of cookery' so that he could hire cooks and people to run a restaurant…
d)found that the applicant was due to commence the Certificate IV course in Commercial Cookery and had provided evidence of financial capacity to pay for the course: CB 162 at [18]; and
e)noted that the applicant described the Certificate III course in Commercial Cookery as being “not very difficult” and the Tribunal found that because the Certificate IV course in Commercial Cookery did not commence until June 2015 (see CB 30 and [44(d)] above) it appeared the applicant had enrolled in a course of study which would maximise his time and opportunity in Australia: CB 162-163 at [22].
The Court finds that:
a)it was not unreasonable for the Tribunal to make a finding that the applicant was not a genuine student, in the sense that he lacked a commitment to higher education in Australia. The Tribunal’s findings in this regard were not findings which lacked an evident and intelligible justification, based, as they were in large part, on the applicant’s study and work history (limited as it was): Li at [76] per French CJ, Hayne, Kiefel, Bell and Gageler JJ;
b)the applicant’s claim that the Tribunal’s finding was illogical can only be supported if it can be demonstrated that the Tribunal formed a view that no other rational or logical decision-maker could have made on the same evidence: SZMDS at [130] per Crennan and Bell JJ, and when regard is had to the applicant’s study history (including his failure to adduce evidence of steps taken to meet with student services at Murdoch), the applicant’s work history as revealed by his bank account statements, the applicant’s enrolment history (including the gap in enrolment in a relevant bachelor degree course), and the Tribunal’s consideration of the matters put as to the hardship that the applicant might suffer as a result of the cancelation of his Student Visa, it cannot be said that no other rational or logical decision-maker could have made the same decision to cancel the applicant’s Student Visa on the same evidence;
c)the weight that the Tribunal gave to evidence of the applicant’s enrolment is clearly an issue for the Tribunal as part of its fact finding function: NAHI at [11] per Gray, Tamberlin and Lander JJ; and
d)the Tribunal clearly referred to and considered the issue of the applicant’s enrolment in the Certificate III and IV Commercial Cookery courses, the Diploma in Hospitality and the Bachelor of Business, including his financial capacity insofar as there was a current necessity to pay any fees: CB 162 at [18], and had regard to and considered the circumstances as a whole: CB 161 at [12] and 163 at [26], such that the Tribunal’s findings regarding the genuineness of the applicant’s study commitments were open to it based on the evidence.
The Court finds that the Tribunal considered the applicant’s enrolment in the Certificate III and IV Commercial Cookery courses, and the Diploma in Hospitality and the Bachelor of Business, when making its findings that the applicant did not have a genuine commitment to higher education studies as part of the exercise of its discretion as to whether to cancel the Student Visa under s.116(1)(b) of the Migration Act, and that the Tribunal’s findings were neither illogical nor unreasonable, and ground 1 would therefore not have been made out, and would not have established jurisdictional error in the Tribunal Decision.
Ground 2
Applicant’s Submissions
The applicant submitted that:
a)section 116(1)(b) of the Migration Act provides for a wide discretion by the decision maker. Although that provision does not expressly state the considerations the Minister must or may have regard to when exercising that power relevant and mandatory considerations are identified by implication from the subject matter, scope and purpose of the Migration Act: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”), CLR at 39-40 per Mason J;
b)the Tribunal is required to determine the substantive issues raised by the material and evidence before it: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 94 FCR 28; (1998) 160 ALR 24; (1998) 56 ALD 1; FCR at 63 per Merkel J; MZWDG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 497 at [39] per Young J;
c)the Tribunal’s consideration of such material must be real or active. In Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 595 per Kirby J the High Court said:
... the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief;
d)the failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all: Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26; CLR at [57]-[60] per Stone, Foster and Nicholas JJ; Owens v Repatriation Commission (1995) 59 FCR 559; (1995) 22 AAR 121; (1995) 38 ALD 481; and
e)the Tribunal failed to take account the period of time the applicant was originally enrolled in the IT Diploma. In failing to take into account this factor the Tribunal fell into one of the grounds of jurisdictional error identified in Plaintiff S157/2002 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
At hearing the applicant further submitted that the length of time the applicant was enrolled in the IT Diploma also goes to the genuineness issue: Transcript, page 11.
Minister’s submissions
The Minister submitted that:
a)an error on the basis of a decision-maker’s failure to take into account a “relevant consideration” can only arise if that consideration was a “mandatory consideration” in the sense discussed in Peko-Wallsend, CLR at 39 per Mason J. In order for a matter to amount to a mandatory consideration it must be expressly stated to be required to be taken into account by the relevant legislation or, otherwise, must arise by implication from the subject-matter, scope and purpose of the relevant legislation: Peko-Wallsend, CLR at 40 per Mason J;
b)the period for which the applicant was enrolled in his original course before cancelling his enrolment was not a mandatory consideration in the Peko-Wallsend sense. Neither the legislation, nor the policy guidance issued in the PAM3 “General visa cancellation powers”, expressly refer to this factor. In any event, insofar as the applicant contends that the factor may be required to be taken into account by implication, the Tribunal did give consideration to this factor. In this regard, it is evident that:
i)in deciding whether the ground for cancellation existed, the Tribunal referred to the applicant commencing the IT Diploma course on 29 May 2015 (this appears to be a typographical error and should read 2014): CB 160 at [8], and withdrawing from this course in September 2014: CB 161 at [10]; and
ii)in deciding whether it should exercise its discretion to cancel the Student Visa, the Tribunal referred to the applicant’s contention that the course was difficult but noted that “it is not clear why the course was so difficult that he had to withdraw from the course [with]in only three months of enrolment”: CB 162 at [19]. The Tribunal also referred to the issue when outlining its concern that only three or four months after commencing the IT Diploma the applicant had had several employers and was working a great deal: CB 162 at [21];
c)the applicant’s complaint with respect to this ground appears to be that the Tribunal placed too much weight on this factor. Matters of weight are within the exclusive province of the Tribunal: Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 (“SZJSS”) at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; and
d)that no jurisdictional error is established by this ground.
At hearing the Minister made further submissions that:
a)the Tribunal made a number of references to the length of time in which the applicant had been enrolled in the IT Diploma: CB 160-161 at [8] and [10] and 162 at [19] and [21]; and
b)in that regard the findings made by the Tribunal were open to it: Transcript, page 13.
Consideration – ground 2
The applicant’s contention is that the Tribunal “failed” to take into account a relevant consideration, namely the period for which the applicant was enrolled in the IT Diploma before cancelling his enrolment, and therefore the Tribunal was illogical and unreasonable in its exercise of the discretion under s.116(1) of the Migration Act.
In Peko-Wallsend, CLR at 40-42 per Mason J in the High Court the legal principles which apply on judicial review in relation to failing to take into account relevant considerations were described as follows:
…where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.
It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.
…in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty. Ltd. v. MacKellar (42); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44);Pickwell v. Camden London Borough Council (45).
So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.
The period for which the applicant was enrolled in the IT Diploma before withdrawing was not a mandatory relevant consideration in the exercise of the Tribunal’s discretion, as neither the Migration Act nor the Migration Regulations, nor the policy guidance issued in the PAM 3 Guidelines, expressly refer to it being so. The Tribunal did, however, consider the period of enrolment in the Tribunal Decision. In that regard the Court notes that the Tribunal:
a)referred to the three month period the applicant was enrolled in the IT Diploma and stated that it was not clear why the course was so difficult that he had to withdraw from the course after only three months of enrolment: CB 162 at [19]; and
b)noted that the period when the applicant appeared to commence working was only some three to four months after the enrolment in the IT Diploma and was concerned as to whether that was a factor which contributed to the applicant’s inability to complete the IT Diploma, and the applicant’s commitment towards future studies: CB 162-163 at [21]-[22].
The weight that the Tribunal gave to material before it was a matter for the Tribunal in considering whether or not the Student Visa ought to be cancelled: Peko-Wallsend, CLR at 42 per Mason J; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; NAHI at [11] per Gray, Tamberlin and Lander JJ, and the Tribunal could accept or reject any evidence proffered as it thought appropriate in the circumstances, so long as the applicant was afforded procedural fairness: Lee at [27] per French J.
The Tribunal gave the applicant ample opportunity to put his case before the Tribunal: the applicant appeared at the Tribunal Hearing together with his migration agent, and made both pre and post Tribunal Hearing submissions, and during the Tribunal Hearing was invited to provide evidence as to why he withdrew from the IT Diploma course after three months, but provided little evidence beyond his statement that the course was too difficult, a statement which does not appear to have gone beyond bare assertion: CB 161 at [13] and [15] and 162 at [19], and cannot be said to have been denied procedural fairness in this regard.
The Tribunal considered the applicant’s circumstances as a whole when concluding that the Student Visa should be cancelled, and the period for which the applicant was enrolled in the IT Diploma course was considered, and was but one factor of a number that the Tribunal considered: CB 163 at [26].
The fact that the Tribunal placed particular weight (whether lesser or greater does not matter) on the fact that the applicant had been enrolled for three months in the IT Diploma course prior to withdrawing does not, in the circumstances, constitute a jurisdictional error. Having regard to the circumstances set out above, and the Tribunal’s consideration of the period for which the applicant was enrolled in the IT Diploma as a whole, it cannot be said that the Tribunal’s consideration is either illogical or unreasonable within the meaning of the authorities referred to at [55] above.
It follows that ground 2 would not have been made out, and would not have established jurisdictional error in the Tribunal Decision.
Ground 3
Applicant’s Submissions
The applicant submitted that:
a)a decision made by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It may also be unreasonable: Li at [71]-[76] per Hayne, Kiefel and Bell JJ;
b)a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion: R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; (1965) 39 ALJR 66; [1965] ALR 1067; CLR at 189 per Kitto J;
c)notably in Rawson Finances Pty Ltd v Federal Commissioner of Taxation [2013] FCAFC 26; (2013) 93 ATR 775; (2013) 59 AAR 221; (2013) 296 ALR 307; (2013) 133 ALD 39 at [62] per Jessup J the Federal Court concluded that having regard to the legal framework within which the AAT’s fact-finding function was set, while it was not a court, the Tribunal, “must, however, proceed by reference to ‘rationally probative evidence’ rather than on mere ‘suspicion or speculation’”; and
d)the Tribunal made repeated statements that the applicant “may be” more interested in work than study and that he “may have” been working longer than permitted under his Student Visa: CB 162-163 at [21] and [23]. These statements are mere suspicion and speculation and not findings based on rationally probative evidence. There is a complete absence of a finding by the Tribunal in this regard.
At hearing the applicant further submitted:
a)the bank statements do not support the Tribunal’s finding that the applicant may be more interested in working as he only received three payments, one in July 2014 and two in September 2014: CB 141; Transcript, page 7;
b)the applicant withdrew from the IT Diploma on 14 September 2014 and did not receive a pay from Pizza Hut until 16 September 2014: Transcript, page 7;
c)the bank statements were provided to the Tribunal after the Tribunal Hearing: Transcript, page 9; and
d)the applicant did say that he was not working, however being dishonest in relation to working is a different matter to the applicant’s genuineness in relation to his intention to study: Transcript, page 10.
Minister’s submissions
The Minister submitted that:
a)the applicant’s submissions impugn the Tribunal’s statements that “[the applicant’s] interests in Australia may be more related to work than studies”, and that “the applicant may also have been exceeding his permitted work hours and visa condition in relation to work”: CB 162 at [21], and “the applicant’s bank accounts also indicate that he may have been exceeding permitted work hours and visa restrictions related to work hours”: CB 163 at [23];
b)the Tribunal will commit a jurisdictional error if it makes a finding based on no evidence: Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1 (“Bond”); CLR at 356 per Mason CJ;
c)in order to succeed on a “no evidence” ground, the applicant is required to demonstrate that there was no evidence at all before the Tribunal upon which its finding was based: Bond, CLR at 356 per Mason CJ. Furthermore, even if a Court held that the evidence in support of the relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: “VAS” v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ;
d)such findings as were made by the Tribunal were based upon the bank statements submitted by the applicant, and the “no evidence” ground cannot therefore succeed;
e)the applicant’s grounds are also couched in the terms that the Tribunal made a finding which was illogical or unreasonable;
f)the Tribunal was not satisfied that the applicant had a genuine commitment to completing higher education in Australia: CB 162 at [22]. It reached this finding based on the evidence before it that:
i)the applicant had claimed that the IT Diploma course had been too difficult for him: CB 161 at [13], but had provided no evidence from Murdoch University suggestive of his commitment or the contention that he had actually met with student services at the University: CB 162 at [22];
ii)it appeared that he had enrolled in a subsequent course of study maximising his time and opportunity to stay in Australia, and setting back the commencement of a bachelor degree course considerably: CB 162 at [22]; and
iii)the applicant’s bank statements revealed that the applicant had been frequently employed and working for several different employers which may have been responsible for his inability to complete the IT Diploma: CB 162 at [20]-[21];
g)a Court should not lightly find that reasoning is irrational or illogical: SZMDS at [40] per Gummow ACJ and Kiefel J, and this was not a case where “no rational or logical decision maker could arrive at [the finding] on the same evidence”: SZMDS at [130] per Crennan and Bell JJ, and the applicant’s description of the Tribunal’s reasoning as being illogical should be viewed merely as an emphatic way of expressing disagreement with it: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [40] per Gleeson CJ and McHugh J; and
h)insofar as the applicant contends that the Tribunal’s discretion to cancel the Student Visa was exercised unreasonably, the Tribunal considered the circumstances for and against cancelling the Student Visa and reached a decision that was open to it on the evidence before it, and the exercise of its discretion in this manner was not unreasonable in any legal sense: Li.
At hearing the Minister made further submissions that:
a)the Tribunal specifically raised its concerns with the applicant that he may be more focussed on work than study: Transcript, page 13; CB 161 at [14];
b)the bank statements were provided to the Tribunal after the Tribunal Hearing and the applicant provided no submissions in relation to them, however, the Tribunal was aware that the work history it was looking at included the time after the applicant withdrew from the IT Diploma course: Transcript, page 13;
c)it was more than open for the Tribunal to consider that having ceased enrolment and then directly commencing work with a number of different employers suggested the applicant was more interested in work than his studies: Transcript, page 14; and
d)this issue was only one of the distinct issues on which the Tribunal based its finding that the applicant did not intend to study at the higher education level: Transcript, page 14.
Consideration – ground 3
The applicant’s contention is that the Tribunal made adverse findings against the applicant based on suspicion and not findings of fact made on probative evidence and therefore was unreasonable and illogical in the exercise of its discretion under s.116(1) of the Migration Act.
The Tribunal Decision must only be based on findings or inferences of fact which are grounded upon probative material and logical grounds: SZMDS at [37]-[42] per Crennan and Bell JJ.
The Court notes the following:
a)the Full Court of the Federal Court in MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 at [50] per North, Bromberg and Mortimer JJ said that:
The Tribunal is not precluded from developing some scepticism as it performs its task, based on the evidence and other material before it, so long as it also approaches the review of the delegate's decision with a mind open to persuasion, and goes about its task in a procedurally fair way in accordance with the requirements of the Migration Act and the common law.
b)in Minister for Immigration & Citizenship v SZGUR& Anor [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [9] per French CJ and Keifel J it was said in the High Court that:
…Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 228 CLR 152 at [29]-[32] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme(2003) 216 CLR 212 at [22] per Gleeson CJ, Gummow and Heydon JJ and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte MIAH(2001) 206 CLR 57 at [194] per Kirby J. …
c)the approach a Tribunal ought to take was considered in the High Court in SZMDS at [133] per Crennan and Bell JJ as follows:
However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.
The Tribunal invited the applicant to provide further evidence prior to making the adverse findings that the applicant was not a genuine student:
a)in relation to the applicant’s claim that the breach occurred because the IT Diploma course at Murdoch University was too difficult and that the University was not helpful, hence his withdrawal, the applicant provided an email from student services dated 5 August 2014 making an appointment to discuss strategies to assist him with his studies, but did not provide any evidence that the meeting had in fact taken place or any evidence of assignments or assessments completed, or from teaching staff to support this claim: CB 161 at [13] and 162 at [19];
b)in relation to the applicant’s claim that he was not working at the time, the applicant provided bank statements which indicated that he was working for a number of employers in the period after 16 September 2014 which was the period following his withdrawal from the IT Diploma: CB 161 at [14]. The applicant did not provide any written submissions regarding his work activity: CB 162 at [20]. The applicant did not provide any explanation for why he stated to the Tribunal that he was not working: Transcript, page 11;
c)in relation to the applicant’s evidence that he was not very interested in IT, but chose to enrol in the course because the agent told him to apply for it, after the Tribunal Hearing the applicant provided the Tribunal with a letter from his father, Pargat Singh confirming that an agent told the applicant to enrol in an information technology course because it was not very difficult: CB 162 at [17]; and
d)in relation to the applicant’s original enrolment the applicant was due to commence the Bachelor of Science in July 2015, however, under his subsequent enrolment he was not due to start a bachelor degree course until considerably later: CB 162-163 at [22].
The Court is of the view that the adverse findings made by the Tribunal regarding the genuine commitment by the applicant to complete higher education in Australia were not simply based on suspicion but based on findings of fact made on probative evidence, including findings of fact in relation to the applicant’s:
a)studies and course of study;
b)work commitments based upon his bank statements; and
c)enrolment and changed enrolment.
In relation to the applicant’s work commitments based upon his bank statements the Tribunal was entitled to look at the evidence in its entirety in relation to whether or not the applicant might have a genuine commitment to be a higher education student in the future, and to the extent to which his commitment to work might affect his commitment to any future studies. In that regard the Tribunal was entitled to find, on the evidence, that during the period of the bank statement from 1 July 2014 to 30 December 2014 (at CB 141-145), the applicant had seemingly worked for two employers in the period up until his withdrawal from the IT Diploma, and subsequently worked for at least six employers, receiving payments from them on:
a)16, 21 and 24 September 2014;
b)1, 7, 8, 15 (two payments), 22 and 29 October 2014;
c)5, 6, 12, 13, 19 and 26 November 2014; and
d)3, 8, 10, 17, 22 and 29 December 2014,
and whilst there is no evidence as to the hours worked, or the hourly amounts paid to the applicant, the total amounts paid and the frequency of the payments from a variety of employers over the time period concerned is sufficient to raise a rational and logical concern on the part of Tribunal that the applicant’s work commitments might affect his study commitments.
In the above circumstances, it cannot be said that there was no evidence upon which the Tribunal could have made the findings that it did make, including the ultimate finding as to whether or not the applicant had a genuine commitment to ongoing higher education in Australia. If ground 3 complains about the weight attached to the evidence by the Tribunal, it suffices to observe that the question of weight is a matter for the Tribunal: Peko-Wallsend, CLR at 42 per Mason J; SZJSS at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; NAHI at [11] per Gray, Tamberlin and Lander JJ. It may be that a differently constituted Tribunal might have decided this matter differently by attributing different weight to parts of the evidence, and by viewing the evidence differently, but that is not the test as to whether or not the ultimate findings are illogical or unreasonable, and it suffices to observe that the finding is one which another rational or logical decision-maker could have made on the same evidence: SZMDS at [130] per Crennan and Bell JJ. Nor can it be said that the findings are unreasonable in circumstances where they logically and rationally raise a concern which the Tribunal put to the applicant, and then dealt with in the Tribunal Decision, having received further information from the applicant by way of his bank statements which not only demonstrated that the applicant was working, but also contradicted his evidence at the Tribunal Hearing that he had not been working. In the circumstances, the Tribunal’s findings in this regard cannot be said to be arbitrary, capricious or lacking in common sense.
Ground three would not have been made out, and would not have established jurisdictional error in the Tribunal Decision.
Conclusion on grounds of Proposed Amended Judicial Review Application
The Court finds that none of the grounds of the Proposed Amended Judicial Review Application would have been made out in any event, and therefore would not have established jurisdictional error in the Tribunal Decision. It is, however, not necessary to make an order dismissing the Proposed Amended Judicial Review Application in circumstances where the Court has not extended time for the filing of the Proposed Amended Judicial Review Application: BZABK v Minister for Immigration & Citizenship & Anor [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
Consideration of grounds of the Judicial Review Application
In circumstances where the Proposed Amended Judicial Review Application is incompetent, it remains to consider the grounds of the Judicial Review Application.
With respect to the Judicial Review Application it suffices to observe that the “grounds”, as set out at [18] above, can be dealt with as follows:
a)grounds 1-7 inclusive are statements of fact which allege no jurisdictional error in the Tribunal Decision; and
b)ground 8 is incompetent insofar as it seeks to set aside the Delegate’s Decision, which is not a matter within the jurisdiction of this Court: Migration Act, s.476(2)(a) and (4); Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
Insofar as ground 8 seeks to have the Tribunal Decision set aside on the basis of natural justice or procedural fairness it suffices to observe that the applicant was not denied procedural fairness by the Tribunal: see, for example, [63(b) and (c)], [74] and [85(a)] above, especially in circumstances where this was a case to which s.422B of the Migration Act applied, and the Tribunal was not required to afford the applicant normal procedural fairness but only the rights afforded to under Pt.7, Div.4 of the Migration Act: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. No breach of those provisions has been identified, nor particularised, nor is any evident on the materials before the Court, and on the basis of the materials before the Court the Court is satisfied that the Tribunal has complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: SZBEL, and that the applicant attended the Tribunal Hearing, together with his migration agent, and was heard and gave evidence, and also provided written submissions to the Tribunal both pre and post the Tribunal Hearing. In those circumstances the applicant has had a real and meaningful opportunity to put submissions and make his arguments and provide evidence, and cannot make out a case that he has been denied natural justice or procedural fairness by the Tribunal.
In all of the above circumstances the Judicial Review Application, which remains on foot given that the Proposed Amended Judicial Review Application is incompetent, must be dismissed.
Conclusion and orders
The Court has concluded that:
a)an extension of time in which to amend the Judicial Review Application in the terms of the Proposed Amended Judicial Review Application should not be granted, and that the Proposed Amended Judicial Review Application is therefore incompetent;
b)in any event, even if the Proposed Amended Judicial Review Application was within time, none of the grounds of the Proposed Amended Judicial Review Application would have established jurisdictional error in the Tribunal Decision, and an Amended Judicial Review Application would have been dismissed in any event; and
c)the Judicial Review Application does not establish jurisdictional error in the Tribunal Decision.
In the above circumstances there will be orders that each of the Extension of Time Application and the Judicial Review Application be dismissed.
The Court will hear the parties as to costs.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 9 May 2019
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