Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 453
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 453
File number: SYG 3742 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 10 June 2022 Catchwords: MIGRATION – Cancellation of a Student (Higher Education Sector) visa – whether the delegate failed to consider compelling and compassionate circumstances – whether the Tribunal failed to consider compelling and compassionate circumstances – whether the Tribunal was biased – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 116 and 476
Migration Regulation 1994 (Cth), cll 573.223(1) and 573.231 in Schedule 2, condition 8516 in Schedule 8
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 8 June 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr E Taylor Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 3742 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of India (Court Book (“CB”) 30-31). On 17 February 2014, he was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the “visa”) (CB 13).
The applicant then arrived in Australia on 20 February 2014 as the holder of the visa (CB 46).
On 22 August 2016, the then Department of Immigration and Border Protection (the “Department”) sent the applicant a “Notice of Intention to Consider Cancellation” letter (the “NOICC”) (CB 10-16). The NOICC referenced a breach of condition 8516 in Schedule 8 of the Migration Regulations 1994 (Cth) (the “Regulations”), which was a condition of the applicant’s visa. Specifically, the delegate noted that it appeared that the applicant had not continued “to be a person who would satisfy the primary or secondary criteria … for the grant of the visa” (CB 13). Relevantly, it appeared that the applicant had ceased to be enrolled in a Bachelor’s or Master’s degree (CB 14).
On 23 August 2016, the applicant’s former representative sent an email to the Department attaching a completed “Form 956” document and requesting an extension of time of five business days within which to respond to the NOICC (CB 17-20).
On 25 August 2016, the Department responded, granting the applicant’s former representative the five day extension. The Department noted in its response that the applicant (through his former representative) was required to respond to the NOICC by 5 September 2016
(CB 21-22).
On 5 September 2016, the applicant’s former representative sent an email to the Department in response to the NOICC (CB 23-24). That email attached a further copy of the completed “Form 956” document (CB 25-27), a statement made by the applicant (CB 28-29), an affidavit affirmed by the applicant’s father (CB 30), an Overseas Student Confirmation-of-Enrolment (“CoE”) (CB 31) and a letter of offer from Elite Education Institute Pty Ltd trading as Elite Education Institute (CB 32-36).
On 16 September 2016, the applicant’s visa was cancelled (CB 45-51). He was sent a notice of cancellation (through his former representative) (CB 39-44) which attached a copy of the delegate’s decision record (CB 45-51). The delegate had determined that, as of 2 July 2015, the applicant was no longer enrolled in a course of study (that is a principal course of a type specified for the visa) and, as such, was not a person who would satisfy either cll 573.231 or 573.223(1A) in Schedule 2 of the Regulations. On that basis, the delegate was satisfied that the applicant had breached condition 8516 in Schedule 8 of the Regulations (CB 47).
On 21 September 2016, the applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) (CB 52-53).
On 12 September 2017, the Tribunal invited the applicant (through his representative) to attend a hearing before it on 3 November 2017 (CB 70-73).
On 2 November 2017, the applicant’s representative notified the Tribunal that he was no longer representing the applicant and that another migration agent had been engaged in the matter (CB 79-80).
On 3 November 2017, the applicant attended a hearing before the Tribunal. He did so with the assistance of a Punjabi interpreter but without representation (CB 81-84).
On 3 November 2017, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa (CB 88-93). The applicant was notified of that decision (through a new representative) via email on 6 November 2017 (CB 85-87).
On 4 December 2017, the applicant sought judicial review of the Tribunal’s decision in this Court. The application was supported by an affidavit which annexed a copy of the Tribunal’s decision. The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 28 paragraphs.
The Tribunal began by detailing the type of decision under review (at [1]) and identified that the relevant issue before it was whether the applicant’s visa should be cancelled pursuant to s 116(1)(b) of the Act and condition 8516 in Schedule 8 of the Regulations (at [2]).
The Tribunal confirmed that the applicant had appeared before it at a hearing on 3 November 2017 and that he was assisted at the hearing by a Punjabi interpreter (at [3]).
The Tribunal then outlined the circumstances under which the Minister may cancel a visa pursuant to s 116 of the Act (at [6]-[7]).
The Tribunal then explained as follows:
8.The applicant was granted a three year Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 17 February 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 22 August 2016, the applicant was advised that it appeared he had breached condition 8516. The applicant was then advised the criteria for the grant of the Student visa required him to meet, amongst other things, subclause 573.223(1A), or subclause 573.231. These stated:
573.223
(1A) If the applicant is an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
(a) the applicant gives the Minister evidence that the applicant has:
(i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and
(ii)educational qualifications required by the eligible education provider; and
(b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:
(i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
(ii) any other relevant matter; and
(c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:
(i)the costs and expenses required to support the applicant during the proposed stay in Australia; and
(ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.
and:
573.231
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; and
(b)the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:
(i) made under regulation 1.40A; and
(ii) in force at the time the application was made
The Tribunal further identified that the NOICC letter stated that, as of 2 July 2015, the applicant was no longer enrolled in a course of study specified for subclass 573 visas (at [9]).
The Tribunal continued:
10.In reply, the applicant said he came to Australia on a Student visa on 21 February 2014; he was enrolled in English for Academic Purposes to be followed by a Diploma of Business; his course started 24 February 2014; he “failed some credit points in English course”; he again enrolled in an English language course; everything was going well; he returned to India in January 2015 to meet his family for a “short trip”; he referred to having changed his education provider (on his return from India); his father “suffered in his farming operations due to loss of crops” (flooding); the applicant could no longer obtain student fees from his father; he was extremely upset about his father’s situation; he could not then be a “burden on his parents”; he wished to return home and had told his father; his father told him not to do this so he remained in Australia; the applicant became “highly stressed”; he could not attend college; his COE was cancelled; his “dreams were shattered”; he now wants to continue to study and believes he can “apply for some credit recognition”; he was later enrolled with Apex College and had already started (at hearing he conceded he had not successfully completed any course in Australia); he does not want to let his father down; he has received an offer letter from Elite Institute of Education to study a Bachelors of Business but was not able to pay “full upfront fee for the COE”; he hopes his father’s “next crop cycle” will enable him to support the applicant; he now wants to “gain skills that will lead to a successful career in a multinational company in India”.
The Tribunal also noted the applicant’s evidence (at the hearing) that he had “unsuccessfully attempted” to study English in Australia on three occasions, with the most recent course ceasing in January/February 2015 due to a lack of funds from his father to “pay for [his] ongoing study (at [11]).
The Tribunal explained that the delegate was satisfied that the applicant did not continue to satisfy cll 573.223(1A) or 573.231 in Schedule 2 of the Regulations and, on that basis, had cancelled the applicant’s visa on 16 September 2016 (at [12]).
The Tribunal noted that, at the hearing, the applicant did not dispute that at the time the NOICC letter was issued (being on 22 August 2016), he had not been enrolled in a course of the type specified for a subclass 573 visa (at [13]).
The Tribunal explained that, because it was satisfied that the ground for cancellation existed (pursuant to s 116(1)(b) of the Act), and because that ground did not require mandatory cancellation, it was required to “consider whether the power to cancel the visa should be exercised” (at [14]).
In this regard, the Tribunal outlined as follows:
15.There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
In relation to the “applicant’s purpose in travelling to and residing in Australia”, the Tribunal noted that the applicant had not been enrolled in a course of study for “some 13 months” from 2 July 2015 (at [16]).
The Tribunal explained that the delegate had considered PRISMS records which indicated that the applicant’s enrolment in a Bachelor course had been cancelled because he “had not commenced a pathway course”. A further enrolment in a Diploma course was cancelled due to “extremely low attendance”. The applicant gave evidence at the hearing that he had not successfully completed any course of study in Australia. That was one basis upon which the Tribunal considered the applicant’s intention for residing in Australia was not to study (at [17]).
The Tribunal noted that, apart from the “substantial period of non-enrolment”, it was not aware of any other conditions of the visa breached by the applicant (at [18]).
The Tribunal continued:
19.Regarding the degree of hardship that may be caused to the applicant or family members if his visa is cancelled, the Tribunal notes that if the applicant is visa is cancelled he will become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, the Tribunal is not satisfied the applicant will be subject to indefinite detention. If the applicant’s visa is cancelled he would also have limited options to apply for a visa in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation).
20.When discussed at hearing, the applicant said he would suffer financial stress if he returned to India. He said his father was unwell and the applicant was working in Australia (he said that for the last three years he had worked for 20 hours per week at Flemington Market); and he was sending money to his family in India, in order to inter alia pay for his father’s ongoing medical expenses (20,000 rupees – approximately AUD$415.00), per month. The applicant was particularly interested in being able to continue paying some or all of his father’s ongoing medical expenses. He feared he would not be able to do so if he had to return to India. The Tribunal accepts this may be true. However, and as stated at hearing, the purpose of the Higher Education Student visa is to enable non-citizens to study in Australia. In the over three years since the applicant had been in Australia, he had not successfully completed any course of study.
21.The Tribunal also notes the applicant does not wish to ‘let his father down’. He also claimed his father will be very upset if he does not continue to study. He also claimed he studied well in India. However, this did not motivate the applicant to return to his studies in Australia sooner, or to seek a temporary deferment in order to await the improvement of his financial circumstances. The Tribunal also notes that it is an intended consequence of the legislation that when a Student visa holder fails to meet the criteria for the grant of the visa, that their visa may be cancelled (subject to all the circumstances).
The Tribunal also referenced the applicant’s evidence that he had been “stressed” but had not sought any medical assistance in Australia. The Tribunal noted that, despite the claimed stress, the applicant had continued to work in Australia for the previous three years (at [22]).
The Tribunal ultimately determined as follows:
23.Regarding the circumstances the ground for cancellation arose, the applicant claimed that his father was unable to provide him with financial assistance due to suffering economic loss as a result of a loss of crops. At hearing, the applicant also explained that his father suffered a heart attack in 2015 (which was why the applicant returned to India in January 2015); that he still wishes to assist his father pay for his ongoing medical expenses; that his father owns and operates a farm, and that when the father is unwell the father’s brother assists the father to run his farm. Also, the applicant said he wished to be given another chance to study in Australia, as his financial situation was improving. However, the Tribunal notes the applicant appeared particularly concerned he would not be able to continue to financially assist his family if he returned to India, the Tribunal understands the father is unwell and he is presently assisted in the operation of the family farm (claimed to be a ‘small plot’ of land). Based on this evidence, the Tribunal is not satisfied the applicant will be able to fund his studies in Australia at an appropriate level, in the foreseeable future.
24.Regarding the applicant’s past and present behaviour towards the Department, based on the evidence before for me, I am not satisfied the applicant has been uncooperative with the Department or the Tribunal.
25.Regarding whether there are persons in Australia whose visa would or may be cancelled, according to Department records there are no other persons who currently hold a visa as a result of the applicant being granted a Student’s visa.
26.Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, based on the evidence before the Tribunal I am not satisfied that Australia’s international obligations would be breached if the applicant’s visa is cancelled.
On the basis of the above findings, the Tribunal concluded that the applicant’s visa should be cancelled and affirmed the decision to cancel the applicant’s visa (at [27]-[28).
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 4 December 2017 contains eight “grounds of review”, as follows (without alteration):
1. I am a national of India, born on 5TH November 1994.
2.I was granted a three-year Subclass 573 Student Visa on 17th February 2014. The delegate cancelled this visa on the basis that I did not satisfy subclause 573.223(1A), or subclause 573.231 of the regulations. The delegate did not consider the compelling and compassionate circumstances I had for not meeting this requirement.
3.I sought a review of the delegate's decision at the Administrative Appeals Tribunal (AAT) but the AAT did not give a fresh look at my case but rather affirmed the decision.
4.I believe that the AAT and DIBP made an error by not considering the compelling reasons I had for not satisfying subclause 573.223(1A), or subclause 573.231 of the regulations. I also gave evidence for the reasons I could not meet this requirement but it was still not taken into consideration.
5.My father’s agriculture business in India was suffering due to flooding which resulted in a large loss of crops and revenue. My father also suffered a heart attack after this. This resulted in many financial, mental and psychological problems for me which made it very difficult for me to focus on my studies.
6.I need to gain skills that will lead to a successful career in India to support my family and without an Australian education I cannot do this. I am now ready to continue my studies in Australia. The injustice of the AAT and DIBP’s decision will have detrimental impacts on my life if I cannot complete my studies here.
7.I wish to be given a fair chance to pursue my study goals and complete my academic career here in Australia.
8.I believe the AAT has made a jurisdictional error in deciding my application and I would like the Federal Circuit Court to investigate this matter and return my application to the Administrative Appeals Tribunal for reassessment.
In support of his application, the applicant filed an affidavit which was deposed by him on 28 November 2017. That affidavit annexed a copy of the Tribunal’s decision and related notification letters and restated the grounds of review (as outlined above).
On 1 November 2021, procedural orders were made by this Court giving the applicant an opportunity to file any amended application, any affidavit evidence and written submissions. No further materials were provided by or on behalf of the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 4 December 2017, a Court Book numbering 93 pages (marked as Exhibit 1) and written submissions filed by the Minister on 24 January 2022.
The applicant appeared before this Court without legal representation. He was assisted at the hearing, when required, by an interpreter in the Punjabi language. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was stressed that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (“Singh”) at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he only asked the Tribunal to “give him one chance” to continue his studies as that is “why he came here” and that he just needs “a chance to be able to finish the study he started”. Unfortunately, this does not raise any issue of jurisdictional error of the sort that this Court can address.
In the circumstances, the Court is left to scrutinise the applicant’s “grounds of review”. Noting that the applicant prepared his application for judicial review without legal assistance, the Court will, in its duty to him as a self-represented litigant, read the applicant’s grounds of review as broadly as possible and remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
CONSIDERATION
Read broadly, the Court considers that the applicant’s “grounds of review” raise the following issues:
(a)Issue 1: Whether the delegate failed to consider compelling and compassionate circumstances;
(b)Issue 2: Whether the Tribunal failed to consider compelling and compassionate circumstances;
(c)Issue 3: Whether the Tribunal was biased; and
(d)Issue 4: Whether the Tribunal failed to afford the applicant procedural fairness.
These issues will be considered by the Court below.
Issue 1: Whether the delegate failed to consider compelling and compassionate circumstances
In grounds 2 and 3 the applicant alleges a failure on the part of the delegate to consider compelling and compassionate circumstances.
To the extent that the applicant suggests that there was an error in relation to the delegate’s decision, the Court has no jurisdiction to review that decision: the Act, ss 476(2) and (4). Further, once the applicant files an application for review with the Tribunal, the Tribunal conducts a de novo review which would in effect “cure” any error in the delegate’s decision (should any error arise): Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
No jurisdictional error arises in relation to issue 1.
Issue 2: Whether the Tribunal failed to consider compelling and compassionate circumstances
To the extent that the applicant suggests (in grounds 4 and 5) that the Tribunal failed to consider compelling and compassionate circumstances, this fails on a factual level.
The Tribunal expressly considered the applicant’s circumstances:
(a)when assessing financial stress for the applicant and his family, noting that the applicant was working in Australia and sending money to his family in India to “pay for his father’s ongoing medical expenses” each month (at [20] and [23]);
(b)when assessing the applicant’s evidence that he did not want to “let his father down”, noting the applicant’s evidence that his father “will be very upset if he does not continue to study” (at [21]); and
(c)when assessing the applicant’s stress and mental health concerns (at [22]).
Having considered the evidence before it and the applicant’s circumstances, the Tribunal found as follows:
(a)the applicant’s presence in Australia was not for the purpose of study (at [17]);
(b)the applicant had not successfully completed any course of study in more than three years that he had been in Australia (at [20]);
(c)the applicant did not seek a temporary deferment of his studies while he was having financial difficulties (at [21]);
(d)the applicant did not seek any medical assistance for his “stress” (at [22]); and
(e)the applicant would not be able to fund his studies in Australia (at an appropriate level) in the foreseeable future (at [23]).
The Tribunal considered the material before it and assessed and made findings based on that evidence. It cannot be said that the Tribunal failed to consider any information or any of the applicant’s circumstances in this matter.
Further, it is well accepted that the Tribunal is able to determine whether to accept or reject evidence and the weight to place on that evidence: Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
No error arises in relation to issue 2.
Issue 3: Whether the Tribunal was biased
The applicant claims, in ground 3, that the Tribunal “did not give a fresh look” at his case and “rather affirmed the decision”. To the extent that the applicant is suggesting that the Tribunal was biased or had “already made up its mind”, the Court notes as follows.
An allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 (“Jia Legeng”) at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing. The applicant attended that hearing and provided evidence which, as discussed above, the Tribunal regarded comprehensively.
There is nothing on the face of the Tribunal’s decision to suggest that the Tribunal approached its statutory task with a closed mind or that it was not open to persuasion.
The Court is satisfied that no issue of bias arises here.
Issue 4: Whether the Tribunal failed to afford the applicant procedural fairness
Insofar as the applicant raises concerns that the Tribunal acted “unjustly” or that the Tribunal failed to comply with its procedural fairness obligations, the Court notes as follows:
(a)the applicant was given an opportunity to provide any supporting information and evidence explaining why his visa should not be cancelled;
(b)the applicant provided an explanation to the Department (through his representative) (CB 23-36) and to the Tribunal at the hearing. That information was considered by the Tribunal;
(c)the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments: s 360 of the Act. The applicant appeared at that hearing before the Tribunal (with the assistance of an interpreter) (CB 81-84);
(d)as outlined above, there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment (as per the principles in SZRUI and Jia Legeng at [71]-[72]);
(e)the applicant was given an opportunity to provide further evidence to the Tribunal in relation to the visa cancellation but did not do so; and
(f)the findings made by the Tribunal were open to it on the evidence before it and those findings cannot be seen to be illogical, irrational or unreasonable (as per the principles in SZMDS, Li and Singh).
Any allegation of “unfairness” in relation to the Tribunal’s conduct cannot be made out.
CONCLUSION
The application for judicial review filed by the applicant on 4 December 2017 has failed to identify any jurisdictional error on the part of the Tribunal. This Court has also failed to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 June 2022
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