Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1164
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1164
File number(s): MLG 1023 of 2019 Judgment of: JUDGE CORBETT Date of judgment: 18 November 2024 Catchwords: MIGRATION - Student (Temporary) (Class TU) (subclass 573) visa – application for judicial review – withdrawal from course enrolments – breach of visa conditions – no jurisdictional error - application for judicial review dismissed. Legislation: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth)
Migration Act 1958 (Cth) ss 116(1)(fa)(i), 116(10(fa)(ii), 359AA
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Regulations 1995 (Cth) rr 2.43, 2.43 (1C), 2.43 (1D)
Cases cited: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230
BNB17 v Minister for Immigration and Border Protection [2020] FCA 304
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors. (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1
SZOYU v Minister for Immigration and Citizenship [2012] FCA 936
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of last submission/s: 17 October 2024 Date of hearing: 23 September 2024, 17 October 2024 Place: Melbourne Solicitor for the applicant The applicant appeared in person Solicitor for the respondents Ms Stone, Australian Government Solicitor ORDERS
MLG 1023 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARSHDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
18 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
2.The name of the second respondent be amended to Administrative Review Tribunal.
3.The application for judicial review filed 8 April 2019 be dismissed.
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
This is an application filed 8 April 2019 for judicial review of a decision of the second respondent (Tribunal) made 14 March 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573) visa (visa).
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court on 17 October 2024, marked exhibit “R1”. References to “SCB” pages are references to the Supplementary Court Book that was tendered and admitted as evidence, marked exhibit “R2”.
BACKGROUND
The applicant is an Indian citizen (CB 40). The applicant was granted the visa on 24 November 2014 (CB 47) to study a course package which would result in the completion of a Bachelor of Business (Information Systems Management) degree (CB 24). The applicant arrived in Australia on 2 December 2014 (CB 55).
The applicant did not commence studies for the Bachelor of Business degree and instead enrolled in various certificate and diploma courses which were subsequently cancelled for either non-commencement, unsatisfactory attendance, or non-payment of fees. Between 28 September 2015 and 25 March 2016, the applicant completed a Certificate IV in Accounting at Wentworth Institute of Higher Education (CB 54). However, that was the only course completed by the applicant since his date of arrival in 2014. The applicant continued to enrol in certificate and diploma courses throughout 2015, 2016 and 2017, none of which he completed (CB 24-5) (SCB 6-11).
On 6 April 2017, a delegate of the Minister gave the applicant a notice of intention to consider cancellation of the visa under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) (Act) on the basis that the applicant did not appear to be a genuine student (SCB 6–11).
On 26 April 2017, a migration agent appointed by the applicant emailed the delegate and indicated that they were authorised to act for the applicant and that the applicant would provide an explanation and documents to the delegate by 6 May 2017 (CB 39–44). Neither the applicant nor the migration agent provided an explanation or any documents to the delegate by 6 May 2017.
On 9 May 2017, the visa was cancelled by the delegate (CB 45–58). At the time of cancellation, the applicant was approved for enrolments in a Certificate III in Painting and Decorating and a Diploma of Building and Construction (Management) to commence on 15 June 2018 at Western Institute of Technology, neither of which were courses upon which the visa was granted.
On 16 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 59 – 60).
On 18 December 2018, the Tribunal sent an invitation to the applicant to attend a hearing to give evidence and present arguments. The hearing was scheduled for 7 March 2019 at Melbourne (CB 64–6).
On 28 February 2019, the applicant provided a Genuine Temporary Entrant (GTE) statement and medical records to the Tribunal (CB 67–81). The GTE statement explained that the applicant had not completed the courses in which he had been enrolled due to a number of health and drug related issues, together with financial problems that meant he could not maintain consistent enrolment in the various courses of study in which he had enrolled. The applicant explained that he had enrolled in the Certificate III in Painting and Decorating to change his circumstances, however, the cancellation of the visa led to the cancellation of his enrolment in that course (CB 71). The applicant maintained that he was a genuine student with the true and genuine intention to achieve a world-class qualification from Australia so that he can obtain a better and settled professional career (CB 74).
On 7 March 2019, the applicant appeared in person at a hearing before the Tribunal in Melbourne. He was assisted by an interpreter fluent in the English and Punjabi languages (CB 82-3).
TRIBUNAL DECISION
On 15 March 2019, the Tribunal delivered written reasons for the decision whereby the Tribunal affirmed the decision of the delegate to cancel the visa (Decision). The Decision was ten pages in length comprising 67 paragraphs and attached an extract from r 2.43 of the Migration Regulations 1994 (Cth) (Regulations).
The Tribunal identified that under ss 116(1)(fa)(i) and (ii) of the Act, the Minister had discretion to cancel a student visa if (CB 89 [6]-[7]):
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
The Tribunal then considered whether the applicant was a genuine student under s 116(1)(fa)(i) of the Act and applied the “genuine student” test referred to by Conti J in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 at [32]. The Tribunal also referred to the prescribed matters that may be considered by a decision maker and which are referred to in rr 2.43(1C) and (1D) of the Regulations (CB 89 [8]-[9]).
The Tribunal then referred to the delegate’s decision and the facts considered by the delegate in deciding to cancel the visa, including a period of “non-study” of over eight months between the applicant’s enrolment on 26 July 2016 in a Diploma of Leadership and Management and his subsequent enrolment in the Certificate III in Painting and Decorating (CB 90 [13]).
Pursuant to s 359AA of the Act, the Tribunal put the applicant’s PRISM records to him and invited comment. The applicant responded that his only completed qualification since his arrival in Australia in December 2014 was a Certificate IV in Accounting which he completed on 25 March 2016. The applicant also stated that he did not actually commence any of his other courses except for a Certificate IV in Business Administration which he began on 9 February 2015. He told the Tribunal that he studied that course for six weeks prior to cancelling his enrolment. He thereafter commenced study for his Certificate III in Painting and Decorating which he studied for six weeks prior to the cancellation of his visa. The applicant confirmed that he did not commence his enrolments in his Diploma of Business, Bachelor of Business, Diploma of Accounting or his Diploma of Leadership and Management. He could not commence his Diploma of Building and Construction in 2018 because by that time, the visa was cancelled (CB 91 [21]).
The applicant’s explanation for not completing the bachelor’s degree for which he had been granted the visa was that he had become involved in using drugs and could not complete the business and accounting enrolments (CB 91 [23]). The applicant confirmed that he had an eight-month study gap between enrolment in his last two courses. He also confirmed that he had not studied at the tertiary level commensurate with the visa (CB 92 [27]). The Tribunal also considered the applicant’s GTE statement (CB 92 [30]).
The Tribunal concluded that the applicant did not have a serious intention to study for and achieve any specific qualification in Australia and found that he had breached the terms of the visa by failing to study at the appropriate course level (CB 92 [33]). The Tribunal was sympathetic to the applicant’s mental health and substance abuse related issues as well as his family circumstances, however there was inadequate evidence to give these matters sufficient weight against cancelling the visa (CB 93 [34]).
The Tribunal then considered various discretionary matters in the guidance contained in the Minister’s Procedures Advice Manual (PAM3) under the General Visa Cancellation Powers, including (CB 93-6 [37],[46],[49],[54],[56]-[58],[60]-[62]):
• The purpose of the visa holder’s travel and stay in Australia, whether the Visa holder has a compelling need to travel to or remain in Australia;
• The extent of compliance with visa conditions;
• The degree of hardship that may be caused (financial, psychological, emotional or other hardship);
• Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the grounds are cancellation arose beyond the visa holder’s control;
• Past and present behaviour of the visa holder towards the Department;
• Whether there would be consequential cancellations under s 140;
• Whether there are mandatory legal consequences, such as whether cancellation will result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, whether there are provisions in the act which prevents a person from making a valid visa application without the Minister’s intervention;
• Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation;
• If it is a permanent visa, whether the former Visa holder has strong family, business or other ties in Australia; and
• Any other relevant matters.
The Tribunal considered the extent of compliance with visa conditions and found that the applicant had been “significantly in breach of his student visa conditions” and gave weight to that finding in cancelling the visa (CB 94 [49]).
The Tribunal considered each of the discretionary matters in the PAM3 guidance by weighing the applicant’s evidence and documents provided to it. The Tribunal considered the applicant’s health, mental health issues and family circumstances, however, the Tribunal was not satisfied that there was a compelling need for the applicant to remain in Australia on “student visas” (CB 93-6 [37]–[63]). The Tribunal considered that the applicant’s breach of the visa for non-compliance was significant and concluded that the visa should be cancelled as “the applicant is not, or is not likely to be, a genuine student” (CB 96 [65]). The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
GROUNDS OF REVIEW
In the application for review the applicant identified the following grounds of review (verbatim) (CB 1-7):
1.Member failed to consider that the Department of immigration and border protection did not accord to the applicant procedural fairness and natural justice.
2.Member failed to provide the proper and detailed decision and hence my matter must be looked after again and proper detailed decision must be provided.
3.The decision of the member is affected by the jurisdictional error and was not determined according to law as the circumstances at the time of application was not considered in this must be overlooked again according to law.
4.The reasoning specifically the drug abuse in my story of overcoming the drugs was not applied into consideration and despite of the evidence provided at the time of hearing, member failed to consider that.
5.The member erred in dismissing the applicant’s review application by relying on hearsay evidences obtained by department of immigration which was not tested and put to the applicant.
6.Member also paid no heed towards my circumstances at the time of application and only considered the current circumstances and this depicts the error in the decision.
7.The member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group.
8.The member erred in coming to the conclusion and no opportunity was given to provide the evidences.
9.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
10.The appellant’s application clearly raises an arguable case.
The application for review was supported by an affidavit affirmed by the applicant on 8 April 2019. In that affidavit the applicant said (verbatim) (CB 9-10):
1. I am the applicant and I applied for the student visa and Department of immigration and border protection now known as Department of Home Affairs refused my case.
2. As I was not satisfied with the decision made by DIBP, I applied for the Merit review of my application and in response they made a jurisdiction error but I am not satisfied with the decision of AAT that’s the reason I want lodged my application in Federal Circuit court.
PROCEEDINGS IN THIS COURT
On 28 March 2024, a Registrar of this Court ordered that the applicant file and serve written submissions and any amended application on or before 18 April 2024. However, the applicant did not avail himself to that opportunity.
A hearing was listed to take place at Melbourne on 23 September 2024. On that day, the applicant appeared in person and Ms Stone, solicitor, appeared for the Minister.
Unfortunately, an interpreter fluent in the English and Punjabi languages could not be present in Court at that hearing. An interpreter was available by telephone, however due to connectivity issues and poor call quality, the hearing could not proceed, and the Court adjourned the hearing to a date to be fixed.
At the hearing on 23 September 2024, before telephone connection problems with the interpreter became unworkable, the applicant alleged that during the hearing before the Tribunal, he explained his situation to the Tribunal member, but the interpreter provided by the Tribunal did not interpret to the Tribunal correctly. He explained that many of the matters contained in the GTE statement were not properly interpreted by the interpreter, and it was not explained that he was enrolled in a course of study which he wished to pursue. The Court informed the applicant that if he sought to rely on errors in the translation given to the Tribunal, he would need to put evidence of those errors before the Court at the next hearing and explain why they caused the Tribunal to make a mistake.
The hearing resumed before this Court on 17 October 2024. The applicant appeared in person and Ms Stone appeared for the Minister. An interpreter fluent in the English and Punjabi languages was present to assist the applicant in person, however at times the applicant was able to address the Court in English and articulate submissions without the assistance of the interpreter.
The Court explained to the applicant that the role of the Court is to determine whether the Tribunal has fallen into jurisdictional error. The Court is not permitted to undertake a review of the merits of the Decision, and it was not the function of the Court to grant him a visa (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors. (1996) 185 CLR 259 at 272) (Wu Shan Liang). The role of the Court was to look at the legality of the Tribunal’s Decision and not to simply reconsider the facts.
APPLICANT’S SUBMISSIONS
The applicant explained that the Tribunal had fallen into error because it “did not consider [his] case well”. The applicant referred to the failure of the Minister’s delegate to obtain the applicant’s correct email address to notify him that the “Department of Immigration” was considering cancelling his visa. He asserted that the Department had sent emails to the wrong address and that when he finally received notification of the intention to cancel the visa, he was not given enough time to respond to that email. He claimed that if he had been given enough time, he would have been able to explain himself better and explain all of the circumstances regarding his course of study. He submitted that the Tribunal did not take the Department’s conduct into proper consideration.
Furthermore, the applicant submitted that the Tribunal did not consider the hardships which he had suffered during his enrolments. He asserted that the Tribunal member did not explain why the visa was to be cancelled, but that he repeatedly told the Tribunal that he was a genuine student and that he answered all the Tribunal’s questions honestly. At the time that the visa was cancelled, the applicant was studying and intended to continue studying. He submitted that the Tribunal did not consider that he was genuine in his pursuit of the Certificate III in Painting and Decorating and his desire to complete a Diploma of Building and Construction. The applicant claimed that the Tribunal also did not consider the fact that he could not return to India until he had completed those two courses, as he would be unable to study those courses in India, particularly because of his student record in Australia. He also submitted that the Tribunal placed too much reliance on the delegate’s decision and not on the applicant’s evidence and documents before it.
The applicant also submitted that the Tribunal did not ask him questions about his intentions and why the only completed qualification he had was his Certificate IV in Accounting. He referred to paragraph [45] of the Decision and he explained to the Court that he could not complete the other courses in which he had been enrolled due to financial pressures (CB 94 [45]). Further, some of the applicant’s courses had been cancelled because they formed part of a course package in which he had not satisfied the first qualification, which resulted in cancellation of enrolment in the remaining courses within the package.
He also asserted that he had a study gap for eight months because he had difficulty obtaining a Certificate of Enrolment from the course provider. He thought he had provided a copy of the Certificate of Enrolment to the Department of Immigration but “was confused”. At that time, the applicant moved from Sydney to Melbourne, and it was then that he enrolled in the Certificate III in Painting and Decorating. The applicant repeated that the Tribunal erred because it did not consider that he could not return to India and undertake study because of the significant gap in his study history in Australia. The applicant asserted that he told the Tribunal he wished to return to India, but only after completion of the Diploma of Building and Construction with the intention of starting a business, and that the Tribunal did not consider that explanation.
The Court then invited the applicant to address each of the grounds of review in his application for judicial review.
Ground One
The applicant asserted that the Tribunal did not fully consider his case and did not listen to his story. The applicant claimed that the “Department of Immigration” did not treat him fairly and did not give him enough time to respond to notification of intention to cancel the visa. The Tribunal did not properly consider the conduct of the Department, and the Department/Minister should have given him more time and listened to his story. He stated that the Tribunal only considered the Department’s documents and not the applicant’s evidence. He was not able to supply information to the delegate and therefore, the delegate’s decision was not an informed one. It was not a decision based in “law and fact”.
Ground Two
The applicant asserted that the member of the Tribunal did not give proper attention to his study history and plans. It was submitted that the Tribunal did not properly record that the applicant intended to be a genuine student and that he had overcome his personal difficulties and was enrolled in a course of study which he needed to pursue in Australia and could not pursue in India.
Ground Three
The applicant explained that the Tribunal did not consider the three-year gap in studies and the other reasons he had for not completing the courses in which he had enrolled. This was a general allegation of a failure to consider the totality of the evidence and his state of mind at the time of the hearing before the Tribunal and at the time of the delegate’s decision.
Ground Four
The applicant claimed that the Tribunal did not consider his drug rehabilitation and health issues. He explained that he had been unable to study due to his substance abuse problem and health, that many other people have similar problems, and that he had not breached his visa by engaging in any criminal acts and should be given a further chance to pursue further study in Australia.
Ground Five
In relation to this ground, the applicant asserted that the Tribunal member considered information that was not provided to the applicant and wrongly relied upon information provided to the Tribunal by the Department of Immigration. He could not identify what that information was or how it had been used by the Tribunal but believed that the Tribunal had “other things” that it considered in reaching the Decision.
Ground Six
The applicant said that this ground differed to grounds three and four. Here, he was trying to say that he was not given a fair hearing because he was not aware of what the Tribunal was considering prior to making the decision to cancel the visa. He alleged that, had he had been aware of what the Tribunal expected from him, he would have addressed those concerns.
Ground Seven
In relation to this ground the applicant claimed that each case was different and must be considered separately by the Tribunal. The applicant claimed that the Tribunal did not consider his substance abuse problem and did not understand the reasons that he gave for using drugs. He explained this to the Tribunal member, but it was not considered properly by the Tribunal.
Ground Eight
This ground was a complaint about procedural fairness. The complaint was that the Tribunal should have asked the applicant for further evidence as to why he was a genuine student and should have told him what further documents he was required to produce.
Ground Nine
Here, the applicant complained that the Tribunal did not tell him what the decision would be during the hearing and had known what the intention of the Tribunal was he would have asked for more time to prove his case. If afforded more time, he would have explained his health condition and what happened to him during the course of his study.
Ground Ten
This was a catch all ground of all nine previous grounds because the previous grounds demonstrated that there was “an arguable case against the member”.
MINISTER’S SUBMISSIONS
On behalf of the Minister, Ms Stone tendered the Court Book and Supplementary Court Book which were marked exhibits “R1” and “R2”. Ms Stone also sought to rely upon an affidavit affirmed by her on 11 October 2024 that was tendered and admitted as evidence, marked exhibit “R3”.
The affidavit deposed to correspondence with the applicant regarding a recording of the Tribunal hearing on 7 March 2019 and annexed a transcript (Transcript) of that hearing. The applicant was provided with a recording of the Tribunal hearing and the full Transcript prior to the hearing so that he may further explain any complaint he had about the quality of translation before the Tribunal. Annexed to the affidavit of Ms Stone was a two-page letter from the applicant to the solicitors for the Minister, in which he listed various complaints about the adequacy of the interpretation before the Tribunal.
It was submitted by Ms Stone that the applicant had not satisfied the onus of proof that interpretation errors occurred before the Tribunal or that there was jurisdictional error arising from the adequacy of the interpretation provided. This was to counter the submission made by the applicant at the first hearing that the interpretation services provided to the Tribunal were inadequate. However, at the second hearing the applicant did not raise that allegation when making his submissions as to jurisdictional error. It was submitted that the applicant could not demonstrate that the standard of interpretation related to a matter of significance in the Decision, thereby it was submitted that the applicant could not satisfy the relevant principle cited in BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [63]-[64] (BNB17). The applicant had not established that the quality of transcription resulted in jurisdictional error.
Ms Stone then compared the complaints made in the two-page letter to the Transcript. The Transcript revealed that many of the complaints raised by the applicant at the hearing before the Court were addressed by the Tribunal and that all of the circumstances that the applicant now sought to raise as overlooked by the Tribunal, were in fact considered by the Tribunal in reaching the Decision.
On behalf of the Minister, it was submitted that there was no jurisdictional error by the Tribunal because the Tribunal considered all of the following:
(1)The amount of time that the applicant had been in Australia compared to the amount of study undertaken;
(2)The applicant study history as evidenced by his PRISMS record;
(3)The applicant’s health issues;
(4)The applicant’s financial difficulties and his mother mother’s health issues; and
(5)The applicant’s evidence as to his substance use, mental health and intended future course of study.
The Tribunal also considered the discretionary considerations identified in the PAM3 as relevant to the general cancellation powers as well as to the circumstances of the applicant’s case.
In response to the broad allegation made by the applicant that he had been denied procedural fairness, it was submitted on behalf of the Minister that it was not the function of the Tribunal to revisit whether the delegate of the Minister had extended procedural fairness, rather the role of the Tribunal was to conduct a de novo review of the merits. There had been no information withheld from the applicant upon which the Tribunal relied, and a copy of the delegate’s decision record had been provided to the applicant by the Tribunal. The Tribunal invited the applicant to attend a hearing in person and the applicant did so, gave evidence, produced documents and made submissions.
It was submitted that there was no obligation upon the Tribunal to reveal to the applicant the Tribunal’s thought processes or deliberations during the hearing. The Tribunal was not required to mention every particular piece of evidence considered by it and that the reasons for decision should not be scrutinised with an eye to error (see Wu Shan Liang at 272 [30] and LPDT v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCAFC 64 at [61]). The weight to be given to the evidence was also a matter for the Tribunal and not the Court (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[6] (Tran)).
It was further submitted that insofar as it was alleged that the Tribunal failed to consider the applicant’s circumstances, there was a lack of particularity about those allegations and scrutiny of the Decision revealed that all the circumstances now said to have been overlooked, were in fact considered by the Tribunal.
Finally, it was submitted that there was nothing unreasonable or irrational about the reasoning of the Tribunal in the Decision and that the complaints now raised by the applicant were no more than an attempt to relitigate the merits of the application before the Tribunal which was not permissible on an application for judicial review (see Wu Shan Liang at 272 [31]).
REPLY
The applicant was invited to reply to the submissions made on behalf of the Minister and did so at length. The applicant was critical of the comparison by Ms Stone of his two-page letter and the Transcript of the hearing before the Tribunal. He explained that he prepared the two-page letter with the assistance of a friend. He alleged that the parts of the Transcript relied upon by Ms Stone as reflecting the proper interpretation of the applicant’s evidence did not correspond with the time markings referred to in his two-page letter of complaint.
The applicant submitted that the interpreter had not properly explained his circumstances to the Tribunal and that his complaint was not that the Transcript was inaccurate, but that the interpreter had not translated words said by him in Punjabi to the Tribunal when he had asked her to do so in Punjabi. The applicant did not identify any relevant fact or submission that had not been correctly interpreted but maintained that not everything he said was reflected in the Transcript.
The applicant repeated many of the submissions made previously about the Tribunal’s failure to consider his personal circumstances and hardship and to fully understand his intentions. In particular, that he was a genuine student.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [18] (Djokovic), the Full Court of the Federal Court of Australia explained that the decision to cancel a visa under s 116 of the Act has two elements: power and discretion.
Firstly, in this case, the power to cancel the visa is to be found in ss 116(1)(fa)(i) and (ii) of the Act, which require the decision-maker to be satisfied the grounds for cancellation exist. Relevantly, under s 116(1)(fa)(i) of the Act, the Tribunal is to be satisfied that the holder, is not, or is likely not to be, a genuine student.
Secondly, as to discretion, once satisfied that the grounds for cancellation exist, the decision-maker has the discretion whether or not to cancel the visa. The jurisdictional precondition and the discretion are separate considerations and must be determined and then exercised on a legally reasonable basis (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [39]-[40] and Djokovic at [29]).
The applicant in this proceeding has sought to challenge the findings of the Tribunal on numerous grounds, both as to the jurisdictional pre-condition and the exercise of discretion. The applicant has added to the equation a denial of procedural fairness, errors in translation and a failure to consider integers of and the entirety of his claim to be a genuine student. The applicant was given several opportunities to explain the matters he considered to be the mistakes made by the Tribunal and had the opportunity to reflect on his application and seek assistance between the first and second hearings (see MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [77] (MZAIB) and DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9]). The applicant was unable to identify any clear error or factual mistake in the findings of the Tribunal. At best the applicant made general criticisms of a failure to consider all of the facts specific to his case and asserted general errors in translation. In essence, he asked this Court to undertake a rehearing of the merits of the review, which is not the function of this Court (see Wu Shan Liang at 272 [31] and Djokovic at [17]).
The Court has also scrutinised the application for judicial review, the Decision and the information submitted to the Tribunal, to identify any jurisdictional error, noting the Court’s obligations as outlined in MZAIB at [58], [77], [100] and [112]-[114], and no error is found. Each of the grounds of review that can be distilled from the application for review and the applicant’s submissions to the Court are identified and addressed below. For the reasons expressed, none of those grounds amount to jurisdictional error by the Tribunal.
Interpretation Errors
At the first hearing and again in reply the applicant alleged that his evidence and submissions were not well translated. To show jurisdictional error the applicant must demonstrate that he was prevented from effectively giving evidence or, that the interpretation caused errors which were material to the adverse conclusions of the Tribunal (see Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1 at 6; SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 at [31] and Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17], [22]).
In BNB17 at [64] Anderson J said:
Accordingly, not every departure from the standard of interpretation will prevent a visa applicant from properly giving evidence; error will only be established if the departure relates to a matter of significance for the visa applicant’s claims or the ultimate decision; Perera at [45]; SZRMQ at [66] per Robertson J; SZTFQ at [34]. Thus, the court should consider whether the misinterpretation had, or could have had, significance if the visa applicant’s words had not been mistranslated: SZRMQ at [67] per Robertson J; SZSEI at [76]-[77]; SZTFQ at [40].
The Transcript produced by the Minister shows that the facts which the applicant says were not well explained, were explained and in a way that was entirely consistent with the GTE statement provided to the Tribunal (CB 69-74). The Decision also reflects the consideration by the Tribunal of facts which the applicant now claims were not considered. The Tribunal further considered the applicant’s mental health issues, physical health, stress, family circumstances, the study gap of eight months and the potential for the applicant to resume study in India. The Tribunal was not presented with any evidence by the applicant to support his assertion that he could not study in India if he was to return but the Tribunal did consider hardship to the applicant if he was to return to India when exercising the discretion to cancel (CB 94-5 [50]–[54]).
Further, the GTE statement sets out in a very comprehensive way all the factors necessary for the Tribunal to assess, both the jurisdictional precondition and the exercise of discretion. In addition to that statement, the Tribunal put to the applicant his PRISMS records which showed the applicant’s poor academic progress, abandoned study plans and history of enrolments. The applicant produced medical records to the Tribunal pertaining to his physical health (liver damage), however no report from a treating doctor or psychologist, or any other evidence to substantiate his explanation for poor study attendance. The Tribunal acknowledged the applicant’s explanation of his substance addiction, stress, financial hardship, family trauma, and mental health, despite the absence of corroborating evidence (CB 92-4 [30]-[33], [43],[50]), but gave more weight to the applicant’s failure to comply with the condition of his visa that he study at a Tertiary level (CB 92-4 [33], [47],[49]). The Tribunal also considered the applicant’s assertion that he could not study in some form back in his home country if he were to return but it did not accept that claim. The Tribunal expressed concern that the applicant had not been able to cope with his study commitments in Australia (CB 95 [53]). That was both a reasonable and logical assessment of the evidence.
There is nothing to suggest that the applicant’s evidence was not properly translated to the Tribunal, or that the applicant was prevented from effectively giving evidence to the Tribunal. There is also no evidence that the interpretation given to the Tribunal caused errors which were material to the adverse conclusions of the Tribunal. To the contrary, the evidence which the applicant relied on in his submissions as not present or considered was clearly considered by the Tribunal, and the Tribunal explained that it did not give them weight in the applicant’s favour (CB 93-6 [34], [63]).
In Tran at [5], Kiefel, RD Nicholson and Downes JJ said:
There was no error in the primary judge’s conclusion that the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give appropriate weight. I agree with the respondent that this is even more particularly the case when the Tribunal is considering and applying a Ministerial Direction. Such direction is to be used as a “guide” and itself states that the decision-maker is to balance matters before it and the discretion under the Act is unfettered. That is the case in respect of the relevant discretion arising under s 200 of the Act. The matter of the weight to be given to the evidence was in the domain of the Tribunal and not the primary judge on judicial review.
The applicant did not identify any errors in the Decision arising from misinterpretation of his evidence and as such, this ground of review fails.
Procedural Fairness (Grounds One, Five, Eight & Nine)
The applicant submitted that the Tribunal did not extend him procedural fairness in making the Decision. However, the basis for making this allegation is vague and unclear.
It appears in ground one of the application for judicial review, the applicant contends that the delegate of the Minister denied him procedural fairness when the Minister sent the original notice of intention to cancel the visa to the wrong email address and the applicant was given a very short time to respond (SCB 6-11). This was mentioned by the applicant in the Transcript and repeated in his oral submissions to the Court (R3, Annexure MES-07, page 26 line 15). There is also a suggestion in ground five of the application for judicial review that the Tribunal relied on the delegate’s decision and other information, rather than reaching a new decision based on the further evidence and materials supplied by the applicant. Neither claim withstands scrutiny.
In the Decision, the Tribunal does no more than identify the findings of the delegate and the history of the visa and the applicant’s history of study. The role of the Tribunal is to conduct a de novo review of the merits of the delegate’s decision and that is what occurred in this case. It was not the function of the Tribunal to determine whether the delegate failed to accord the applicant procedural fairness (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA16; 264 CLR 217 at [17],[85] and [92]; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [15] and [87]-[88]; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [16]; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [33]; DVO16 vMinister for Immigration and Border Protection [2019] FCAFC 157 at [11] and Lee v Minister for Immigration & Anor [2020] FCCA 2243 per Judge Kelly at [30]).
The applicant was invited to attend a hearing before the Tribunal to provide additional information and documents that he may wish to rely on (CB 65-6). In response to that invitation the applicant provided the GTE statement together with medical records (CB 69–81). There was then an in person hearing before the Tribunal at which the applicant was heard and made submissions. The Transcript shows that the process to be followed by the Tribunal was fully explained by it and that the applicant was given the opportunity to “tell the Tribunal everything [he] believe[s] is relevant to the cancellation decision” (R3, Annexure MES-07, page 20 line 35). The Tribunal put the applicant’s PRISMS record to him and invited comment. The applicant was offered additional time to consider that information which he took before responding (R3, Annexure MES-07, page 20 line 30). The applicant then explained his study history and personal circumstances. There was nothing in the Transcript to indicate that the Tribunal considered other information that was not disclosed to the applicant or was placing undue reliance on the delegate’s decision.
There is nothing disclosed by scrutiny of the Decision, the Transcript and the information provided by the applicant to the Tribunal to suggest that the process of the Tribunal was procedurally unfair to the applicant and amounted to jurisdictional error.
Duty to Inquire (Grounds Eight & Nine)
The applicant submitted that the Tribunal should have asked him to provide more evidence as to why he was a genuine student and did not do so. The applicant did not identify the further evidence he would have provided or that he had further evidence that would have been decisive to the review.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ, the High Court of Australia held that the Refugee Review Tribunal was under no general duty to make inquiries about an applicant’s claim for protection under s 36(2) of the Act. The Court observed at [45] that the rules of procedural fairness may, in certain circumstances, and individual cases, require some special steps or procedures to be followed but there was no denial of procedural fairness by a failure to, in that case, inquire about the competency of the applicant to take part in a hearing.
In Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39 at [25]-[26], the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was mothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates… For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
In Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10] (Li), French CJ said:
The review function of the tribunals created by the Act is sometimes called “inquisitorial”. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled predetermined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.
The duty to review does not require the Tribunal to examine the applicant as to whether he may or may not have additional material relevant to the review. In this case the Tribunal invited the applicant to provide further information, and the applicant accepted that invitation. The information upon which the Tribunal reached its decision as to the jurisdictional precondition was the applicant’s history of study and breach of the conditions of the visa. It is unclear what other information available to the applicant, if any, would alter the conclusion reached by the Tribunal.
The applicant submits that at the time of the delegate’s decision he was a “genuine student” because he was enrolled in a course of study for Certificate III in Painting and Decorating and intended to pursue further study. However, that is not conclusive of the objective test of whether the applicant was in fact a “genuine student”. Simply because the applicant claims to be a genuine student, does not mean that the Tribunal must accept that assertion when conducting a review of a cancellation of the visa. The Tribunal considered all of the information before it as a review de novo and there was nothing to suggest that a material fact or submission was overlooked in reaching the Decision. This ground of review also fails.
Circumstances and Hardship (Grounds Two, Four, Six & Seven)
The Decision reflects that the applicant’s personal circumstances and hardship were duly considered by the Tribunal when exercising the discretion whether or not to cancel the visa. The applicant submitted that the Tribunal did not give enough weight to his intention to study, rehabilitation and personal hardship. There is nothing in the Decision to suggest that the Tribunal overlooked or did not consider these matters. The Tribunal did not give all of these considerations weight when exercising the discretion but instead gave weight to the significant breaches by the applicant of the student visa conditions. There was no error in doing so.
Discretion (Grounds Two, Three, Four, Six & Seven)
The Decision records each factor considered by the Tribunal in exercising the discretion whether or not to cancel the visa. The weight to be given to the evidence was also a matter for the Tribunal and not the Court (Tran at [5]-[6]). There is no error identified by the applicant or the reasoning in the Decision to indicate a jurisdictional error in the exercise of discretion.
Breach of Visa Conditions (Grounds Two, Four, Six & Seven)
The Tribunal considered that the applicant’s failure to comply with the conditions of the visa by enrolling in courses of study that were not at a tertiary or higher education level, was significant in considering the jurisdictional precondition. It was entitled to do so and drew inferences from the fact that the applicant did not complete many of the courses in which he was enrolled and instead chose to enrol in vocational courses at Technical and Further Education institutions. The Tribunal then considered whether as a matter of discretion the visa should be granted. When considering the discretionary criteria which it was directed to consider the Tribunal considered all the information available to it. There was nothing unreasonable or illogical about the conclusions reached not could it be said the exercise of discretion lacks an evident and intelligible justification (Li at [76] per Hayne, Keifel and Bell JJ). There was no jurisdictional error in concluding that the applicant’s breach was significant, and in the consideration of breach in finding that the breach of the visa condition was significant and conclusive (CB 96 [65]).
CONCLUSION
The Decision does not disclose jurisdictional error by the Tribunal for the grounds identified in the application for judicial review or upon any other grounds. The application for judicial review filed 8 April 2019 is dismissed.
COSTS
At the conclusion of the Minister’s submissions, the solicitor for the Minister informed the Court that if the application for judicial review was dismissed, then the Minister sought an order for the legal costs of and incidental to the application for review in the sum of $6,000.00. That sum is less than the applicable scale amount in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) and is fair and reasonable.
OTHER MATTERS
At the conclusion of the hearing, the solicitor for the Minister also sought an order that the name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
Further, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent be amended to Administrative Review Tribunal.
The application for judicial review filed 8 April 2019 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $6,000.00.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 18 November 2024
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