Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 50
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 50
File number: MLG 1722 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 4 February 2022 Catchwords: MIGRATION – Application for judicial review of Administrative Appeals Tribunal decision – cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa – whether Tribunal failed to take into account relevant considerations – whether Tribunal misapplied facts, law, regulations, policy and guidelines or failed to ask itself the right question – whether Tribunal had a duty to inquire – whether Tribunal’s decision was unreasonable – no jurisdictional error – application dismissed. Legislation: Constitution of the Commonwealth of Australia, s.75(v)
Migration Act 1958 (Cth), ss.48, 116, 121, 360, 476, 477, Division 5 of Part 5
Migration Regulations 1994 (Cth), reg.2.44, condition 8202(2)(a) in Schedule.8Cases cited: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 19 January 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1722 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 7 August 2017 is 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 LADHAMS:
INTRODUCTION
By application filed on 7 August 2017, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 4 July 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (student visa). The application to this Court is brought under s 476 of the Migration Act 1958 (Cth)
(Migration Act).
For the reasons set out below, I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application to this Court is dismissed.
BACKGROUND
The applicant is a non-citizen who was granted a student visa on 15 July 2014.
On 2 September 2016 the Minister’s Department sent an email to the applicant attaching a Notice of Intention to Consider Cancellation (NOICC) of the student visa. The NOICC stated that there appeared to be grounds for cancellation of the applicant’s visa under s 116(1)(b) of the Migration Act. The particulars advised the applicant that it appeared that he had not complied with condition 8202(2)(a) in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), which required that he be enrolled in a registered course of study. The evidence available through the Provider Registration and International Student Management System (PRISMS) suggested that the applicant had not been enrolled in a registered course of study since 1 August 2015. The applicant was invited to comment and give reasons as to why he thought the ground for cancellation did not exist and why his student visa should not be cancelled.
By email to the Department on 16 September 2016 the applicant responded to the NOICC. In his response, the applicant said:
(a)He came to Australia to study after he completed year 12. He wanted to do a vocational course but his parents wanted him to get a degree. When he came to Australia, he became home sick and the degree was too much for him and he could not keep up.
(b)He decided to enrol in a vocational course but this did not work out well. He had an issue with management, and the education provider did not mark his attendance for one month due to a wrong roll number.
(c)
He also had issues at home which affected his studies in Australia. The family business was doing poorly and his father was suffering. The applicant was late in paying his course fees and his enrolment was cancelled due to non-payment. He was close to his father and was also experiencing a depressive mood. The applicant’s performance was affected by his father’s illness, the difficulties with the family business, the
non-payment of fees, the school attitude, the applicant’s loneliness, an injury suffered by the applicant that caused three months’ bed rest and difficulties the applicant was facing in his relationship with his girlfriend.
(d)He knew he was required to be studying, but he was in a difficult situation. He had also developed a gambling habit and was not thinking properly. He should not be punished for his misfortune.
(e)His father is now getting better and business is good. The applicant is feeling well and wants to get the best education. He should be given a further chance. He now wishes to study for a diploma.
On 20 September 2016 the delegate cancelled the applicant’s student visa.
On 29 September 2016 the applicant applied to the Tribunal for review of the delegate’s decision.
On 30 May 2017 the Tribunal invited the applicant to attend a hearing on 15 June 2017 to give evidence and present arguments. The applicant appeared at the hearing before the Tribunal on 15 June 2017 with the assistance of an interpreter in the Punjabi language.
The Tribunal affirmed the decision under review on 4 July 2017.
TRIBUNAL DECISION
The issues before the Tribunal were whether the applicant had breached condition 8202 and, if so, whether the Tribunal should exercise its discretion to cancel the visa having regard to the applicant’s circumstances.
The Tribunal found that the applicant had not complied with condition 8202(2). Having regard to the evidence before it, including the applicant’s PRISMS record and the applicant’s evidence and submissions to the Department and the Tribunal, the Tribunal found that the applicant was not enrolled in a registered course of study from 1 August 2015, until after the NOICC had been issued.
The Tribunal then considered its discretion to cancel the student visa. The Tribunal took into consideration the matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).
The Tribunal considered the following issues to be critical to the consideration of its discretion to cancel the student visa:
(a)Purpose of the visa holder’s travel to and stay in Australia - The Tribunal accepted that the applicant experienced some difficulties in the past. However, the Tribunal found that there was no evidence that the applicant had completed any course work or that he could not have re-enrolled earlier than after the issuing of the NOICC. The Tribunal did not accept that the applicant had the capacity and aptitude to complete a registered course pertaining either to vocational education or higher education degrees because of his lack of academic progress, the admission that the applicant struggled with his Bachelor’s degree soon after arriving in Australia, and the period of time he was not enrolled. The Tribunal was not satisfied of the applicant’s oral testimony that he would ‘try his best’ or that he was committed to establishing a business in India in the future. Based on these findings, the Tribunal was not satisfied that the applicant was a genuine student or that he would uphold the conditions on any future student visa. The Tribunal placed little weight on the applicant’s claims that his travel to and stay in Australia was for the purpose of study and to advance his career.
(b)Extent of compliance with visa conditions - The Tribunal found that there was no evidence to indicate that the applicant had not complied with conditions other than condition 8202(2). The Tribunal noted that the applicant applied for a further registered course after being issued a NOICC, but this did not diminish the Tribunal’s concern that the applicant was not enrolled in a registered course for a long period of time. The Tribunal placed some weight on this factor towards the visa being cancelled.
(c)Degree of hardship that may be caused - The Tribunal noted that the applicant would be returning to India as a single man without any responsibilities towards a spouse or children. The Tribunal accepted that the applicant may suffer some hardship if the visa remained cancelled, including emotional and financial hardship arising from his parent’s disappointment and the challenges of being an independent adult. However, the Tribunal found that the applicant’s evidence did not demonstrate any significant or severe hardships. The Tribunal placed little weight on these hardship considerations towards the visa not being cancelled.
(d)Circumstances in which the ground for cancellation arose
- The Tribunal accepted the applicant’s claims that a number of extenuating circumstances led to his
non-compliance with condition 8202(2). These circumstances included homesickness soon after the applicant arrived in Australia, a relationship breakdown with his girlfriend, a gambling habit, a short period of time when his health was affected by treatable typhoid, an injury to his hand while working as a cleaner, and financial difficulties with his father’s farming enterprise. However, the Tribunal was not satisfied that these circumstances, by themselves or in combination, over the period the applicant was not enrolled amounted to credible barriers to maintaining enrolment in a relevant course or continuing related studies. The Tribunal placed very little weight on this evidence towards the visa not being cancelled.
(e)Past and present conduct of the visa holder towards the Department - The Tribunal found that there was no evidence that the applicant had not been cooperative towards the Department. The Tribunal noted that the applicant responded to the NOICC in a timely manner and that there was no evidence that the applicant had breached other conditions imposed on him in the past. The Tribunal placed some weight on this factor towards the visa not being cancelled.
(f)Whether there are mandatory legal consequences of cancellation - The Tribunal accepted that the applicant would have limited opportunities to remain in Australia if the visa was to remain cancelled as a result of the effect of s 48 of the Migration Act, which would limit him in applying for other visas, and that he may need to depart or be detained. The Tribunal gave this matter little weight towards the visa not being cancelled.
(g)Any other relevant considerations - The Tribunal asked the applicant if there were further relevant considerations and the applicant responded by submitting that he wanted to return to India to be a business person, he had learned a large and valuable lesson, and he had too much failure to date. The Tribunal placed very little weight on these additional relevant considerations.
The Tribunal considered the evidence available and weighed the above factors, both individually and cumulatively. The Tribunal placed more weight on the cumulative findings and evidence in favour of the visa remaining cancelled than those countervailing considerations in favour of not cancelling the visa.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant advances eleven grounds of review in his written application, reproduced below without alteration:
1.The Delegate has failed to have regard to relevant considerations, I have claimed that I am directly came to Australia after the 12th education when I come to Australia for bachelors education, I have found the bachelors education is very tough for me so that I have changed my mind to join in VET sector before I start the Bachelors. Also I have found the hard time in finding Bachelors E Coe for hospitality management once my existing Bachelors E Coe is cancelled. Delegate should have exercised his discretion not to cancel the visa. This did not happen in my case. I have found that delegate has failed to assess my case, there is procedural fairness to carry out his statutory task assessing my overall situation in Australia.
1.1. I have provided information to delegate also I have done oral submissions to Tribunal that requires a delegate to make an inquiry on my medical condition and my relationship with Australia for the purposes of establishing a critical fact, the delegate must make every reasonable effort to make this inquiry before proceeding to make a decision whether or not to cancel. This did not happen. At present my wife (Australian Citizen) carrying and going to give the birth. Also I have health issues as I have worked part time as concreter but I did not keep medicals records with me to provide to Immigration.
1.2. I have presented evidence. The delegate did not take this into account, nor did he make enquiries with the course provider or doctor or my parents regarding that communication. Such enquiries could easily have confirmed my claims, and satisfied the delegate’s obligations.
2.The decision of the delegate to cancel my visa was legally unreasonable.
2.1. Delegate hasn’t taken into account the claims raised when I have to comment with NOICC issued and delegate has not afforded procedural fairness having regard to the matters raised in Ground 1,if he has assessed it could have reached the conclusion that it did within the range of reasonable Natural Justice.
3.I was denied the opportunity to respond meaningfully to the Notice of Intention to Consider Cancellation issued to my pursuant to s.119 of the Migration Act 1958 also I did not have much chance to give oral explanation at tribunal as well.
3.13.1 The delegate did not comply the rules and regulations as the time allowed for me to respond to the NOICC was not a ‘reasonable’ period having regard to the circumstances particular to the my de-facto partner situation and also my health. De-facto partner husband was sick and passed away is not normal situation to avoid. I and my de-facto partner both were in depression. I request the honour to see any act which will allow delegate to provide more time if any applicant is in that situation.
4.The delegate was in rush and not fair in assessing my cancellation which has jurisdictional error.
5.I did not know much of visa regulations and also I am not aware of 8202 condition so that I am was in situation to understand the NOICC correspondence.
6.As I did not have enough time to provide the evidence to Immigration officer, it was not reasonable possible for Immigration officer to conclude that a breach of Condition 8202 had occurred, further to cancel my visa.
7.Officer did not see my exceptional circumstances at all. The delegate has misunderstood and mishandled my case while officer cancelling my visa.
8.Justice of Federal Circuit court should see the present and past situation of this case as I wish to complete my studies in Australia. My presence is necessary to my de-facto and also for my child (who is growing in my de-facto womb).
9.My health is getting better, so that I can concentrate on studies.
10.Court and Justice may consider this matter about the overseas student situation in Australia if this kind of Problems occurred during the visa to an overseas student.
11.Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter.
The application was accompanied by an affidavit, which annexed the Tribunal decision. The affidavit also contained information about the applicant’s situation at the time of making the affidavit. It does not allege any error in the Tribunal decision and does not contain evidence that would establish jurisdictional error.
On 18 April 2018 a Registrar of this Court made orders to progress the matter to hearing. Those orders required the applicant to file and serve 28 days before the hearing any amended application, supplementary court book and written submissions. The applicant did not file any documents in accordance with these orders.
The matter came before me for hearing on 19 January 2022. The applicant was self-represented and the Minister was represented by Mr A Anastasi.
At the hearing, I made an order to allow an oral amendment to the applicant’s application. In his original application, the only relief the applicant sought was a writ of certiorari. The Court’s jurisdiction under s 476 of the Migration Act is the same as the High Court’s jurisdiction under s 75(v) of the Constitution of the Commonwealth of Australia, which does not extend to matters where only a writ of certiorari is sought. The oral amendment at the hearing varied the application so that the applicant also seeks a writ of mandamus. This allows the Court to consider the application. The Court thanks the Minister’s representatives for bringing this matter to the Court’s attention.
SUBMISSIONS OF THE PARTIES
Applicant’s submissions
As indicated above, the applicant did not file any written submissions.
I gave the applicant an opportunity at the hearing to explain to the Court what he believes the Tribunal did wrong. The applicant submitted that he thought the Tribunal had not looked at his case in a very good way. He was stressed and accepted that he made some mistakes but believed that he should be given a second chance.
In his reply submissions, the applicant submitted that at the hearing before the Tribunal he was nervous and stressed, and had a lot of things to explain but was unable to express himself well.
Minister’s submissions
The Minister filed written submissions in accordance with the Order made on 18 April 2018.
Noting that the Court does not have jurisdiction to review the delegate’s decision in accordance with s 476(2)(a) of the Migration Act, the Minister treated all grounds of review as alleging error in the Tribunal decision.
Insofar as ground 1 alleges that the Tribunal failed to take into account relevant considerations, the Minister submitted that the Tribunal had regard to the guidelines contained in PAM3 and to the matters raised by the applicant including his study plans, homesickness, relationship breakdown, ill-health, his family’s financial difficulties and his study related difficulties. The Minister also submitted that there were no matters specified as mandatory relevant considerations in s 116 of the Migration Act or any provision in the Regulations. The Minister submitted that the applicant’s reference to his wife’s pregnancy appears to be a submission on the merits and, in any event, it conflicted with the information that was before the Tribunal. The Minister submitted that the applicant has not otherwise particularised what evidence he says that he gave to the Tribunal, but the Tribunal failed to take into account.
The Minister also addressed the applicant’s allegation that the Tribunal ought to have made inquiries in relation to the applicant’s medical condition, the circumstances surrounding his wife’s pregnancy and with his course provider. The Minister submitted that the Tribunal was under no obligation to inquire in relation to the matters raised by the applicant. The Minister further submitted that the applicant has not shown how any investigation the Tribunal might have made involved an obvious inquiry about a critical fact. The Minister submitted that there was no obligation to inquire in relation to the wife’s pregnancy because there was nothing before the Tribunal to suggest that the applicant’s wife was pregnant.
The Minister submitted, in relation to ground 2, that the Tribunal’s findings were logical and open to it on the evidence and that the Tribunal’s decision was not unreasonable.
In relation to the allegations that the Tribunal denied the applicant procedural fairness, raised by grounds 3, 4 and 6, the Minister submitted that the Tribunal had complied with the codified procedural fairness obligations in Division 5 of Part 5 of the Migration Act. The Minister submitted that the applicant had been given the prescribed amount of time to respond to the NOICC, and had been granted an extension of time upon his request. The Minister also submitted that there was nothing rushed about the Tribunal decision with the Tribunal hearing lasting for one hour and the decision being made some 19 days later. The Minister submitted that the applicant was given a sufficient opportunity to present his case.
In so far as ground 6 asserts that it was not open for the Tribunal to conclude that the applicant breached condition 8202, the Minister submitted that the ground is misconceived and noted that the applicant had admitted in his response to the NOICC that he was not enrolled in a course of study.
The Minister submitted that grounds 5 and 7 to 11, as well as the matters raised at [2]-[10] of the applicant’s affidavit, address the merits of the visa cancellation, which is beyond the jurisdiction of the Court.
At the hearing, Mr Anastasi made oral submissions that were consistent with his written submissions.
CONSIDERATION
Jurisdictional error
In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Ground 1
Ground 1 alleges error on the part of the delegate. The delegate’s decision cannot be judicially reviewed by the Court. This is because it is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act, as it is a privative clause decision, or a purported privative clause decision, that is reviewable under Part 5 of the Migration Act. The Court does not have jurisdiction in relation to a primary decision: s 476(2)(a) of the Migration Act.
In circumstances where the applicant is self-represented, I have treated ground 1 as asserting error in the Tribunal decision.
Failure to take into account relevant considerations
The considerations that the Tribunal is bound to take into account when making a decision is determined by the construction of the statute conferring the discretion: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Anor (1986) 162 CLR 24; [1986] HCA 40 at [15(b)].
The Migration Act and the Regulations do not prescribe any mandatory relevant considerations that the Tribunal is required to take into account when exercising its discretion to cancel a visa under s 116 of the Migration Act. The Department has set out a range of factors in its PAM3 guidelines to which decision-makers should have regard when exercising the discretion, where those factors are relevant to the particular case.
In exercising the discretion to cancel the applicant’s visa, the Tribunal had regard to those of the factors in the PAM3 guidelines that it considered to be relevant. It considered the information in the Department file, including the applicant’s response to the NOICC, PRISMS record and the information that the applicant provided to the Tribunal. There is no error in this approach by the Tribunal, and it was appropriate for the Tribunal to have regard to all of these matters.
It is apparent from the information recorded in the Tribunal decision that the Tribunal asked the applicant questions throughout the hearing which were relevant to the matters identified in the PAM3 guidelines. In so doing, the Tribunal afforded the applicant procedural fairness by giving him an opportunity to attend the hearing and give evidence and submissions on matters relevant to the review. There is no evidence before the Court to suggest that the Tribunal did not have regard to the answers given by the applicant.
In relation to the specific matters raised by the applicant, I make the following observations:
(a)The applicant suggests that the Tribunal failed to have regard to his claim that he came directly to Australia after his year 12 education, he found the bachelor degree tough and so he changed his mind to do a course in the vocational sector before doing a bachelor degree. The Tribunal was clearly aware of this evidence, having included it in its summary of the content of the applicant’s response to the NOICC, set out at [12] of the Tribunal’s reasons. The Tribunal took this information into account in considering the purpose of the applicant’s travel to and stay in Australia, and also took into account the more updated information about the applicant’s study intentions that the applicant gave at the Tribunal hearing. The Tribunal’s consideration of the applicant’s evidence about his study intentions and difficulties faced in his studies can be seen most clearly at [23] and [24] of the Tribunal’s reasons, where the Tribunal said (reproduced without alteration):
23. According to the applicants' response to the NOICC, he undertook a Bachelor's degree based on his parents' advice and expectations, but he wanted to complete a bachelor's degree. According to the decision record, the delegate found the non-enrolment period of the applicant to be significant and that the purpose of not being in Australia was no longer to study. During the Tribunal's scheduled hearing, the applicant claimed that he wanted to complete his studies, that he will not be accepted in India by his parents and that the opportunity to complete studies will affect his future. The applicant elaborated that he wanted to have relevant studies to begin an import/export in India and that he chose to study commercial cookery because it was difficult time for him to adjust to Australia. The applicant claimed that a Bachelor of Business Management was more relevant to him and he was determined to his best despite struggling with his previous studies.
24.In the light of its findings below where the applicant did credibly struggle with some matters in the past, cumulatively considered, the Tribunal accepts it be the case that the applicant has some difficulties but there is no evidence that the applicant has completed any course work or he could not have re-enrolled earlier than after the issuing of the NOICC. Given the lack of academic progress, the admission that the applicant struggled with his Bachelor's degree soon after arriving in Australia and the period of time he was not enrolled, the Tribunal does not accept that the applicant has the requisite combination of the capacity and aptitude to complete either a registered course or a package of registered courses pertaining either to vocational education or higher education degrees. For the same reasons, the Tribunal is not satisfied that the applicant's oral testimony that he will try his best or is committed to establishing an import/export business in India in the future. While the Tribunal accepts that he has some very limited intention to remain in Australia to study and advance his career prospects, had he been a genuine student in the past the Tribunal would have expected greater compliance with 8202(2) and academic progress.
Based on these paragraphs, it cannot be said that the Tribunal failed to consider the applicant’s arriving in Australia soon after his year 12 studies were complete, his difficulties in his studies after arrival and his desire to study a vocational course first (commercial cookery being such a course).
(b)Insofar as the applicant’s ground can be read as an assertion that the Tribunal should have had regard to his wife being about to give birth, it is not established. There is no evidence before the Court that shows that the applicant ever gave evidence to the Tribunal about his wife being pregnant, or that he made any submission that this is a factor that should be taken into account. The Tribunal was not required to take into account the applicant’s wife’s pregnancy, and indeed, could not have done so if it were not raised before it.
(c)The applicant asserts that he has health issues and worked part time as a concreter, but did not keep medical records that he could provide to the Tribunal. The evidence before the Court does not establish that the applicant claimed before the Tribunal to have had any health issues relating to employment as a concreter, and the ground to this Court appears to acknowledge that there was no evidence before the Tribunal, as the applicant claimed he did not have any documentary medical evidence to provide. Again, the Tribunal was not required to take into account any medical condition that was not referred to in the evidence before it.
The Tribunal has not failed to take into account any mandatory relevant consideration.
Duty to inquire
In Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25] (SZIAI), the High Court acknowledged that, in some cases, it might amount to jurisdictional error if the Tribunal fails to make an obvious inquiry about a critical fact, the existence of which is easily ascertained.
No such error has been made by the Tribunal in the present case. The applicant asserts that the Tribunal should have made inquiries in relation to his medical condition and his relationship with Australia. He asserts that his wife is pregnant and that he has health issues from working part time as a concreter, but did not keep medical records that he could provide.
The applicant has not established that there was an obvious inquiry about a critical fact that could have been easily ascertained in the present matter.
(a)The suggestion that the Tribunal should have inquired about the applicant’s relationship with Australia cannot be accepted. That is a broad general matter about which it is unclear to whom any inquiry by the Tribunal should have been directed and precisely what the nature of the inquiry should have been.
(b)There can be no error on the part of the Tribunal for failing to inquire in relation to the wife’s pregnancy, because there is no evidence before the Court to show that the Tribunal was even aware of the applicant’s wife’s pregnancy. Rather, it appears that the Tribunal understood that the applicant was a single man without a spouse or children and that his relationship with his girlfriend had ended: see [12] and [27] of the Tribunal’s reasons.
(c)It is also unclear what inquiry it is said the Tribunal should have made in relation to the applicant’s medical conditions. The Tribunal accepted that the applicant had endured a short period of time when his health was affected by treatable typhoid and that he had suffered a deep cut on his hand while working as a cleaner. The Tribunal further accepted that these health conditions amounted to genuine extenuating circumstances which contributed to the applicant’s non-compliance with condition 8202(2). There was no evidence before the Court to suggest that the applicant told the Tribunal he had faced any further medical conditions as a result of his work as a concreter.
Further, and in any event, all of the matters that the applicant identified as matters in relation to which the Tribunal should have inquired were matters that the applicant could have brought to the Tribunal’s attention if he thought they were important to his case.
Ground 1 is not established.
Ground 2
Ground 2 alleges that the Tribunal’s decision to cancel the visa was unreasonable because the Tribunal failed to take into account the applicant’s claims.
The power of the Tribunal to cancel the applicant’s visa is a discretionary power and must be exercised reasonably.
A conclusion that a decision is legally unreasonable can be reached after the identification of jurisdictional error for a recognised species of error, or it can be an ‘outcome focused’ conclusion without any specific jurisdictional error being identified: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [27]-[28], [72]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [6].
The applicant’s allegation that the decision is unreasonable because the Tribunal failed to take into account the applicant’s claims appears to be an allegation of unreasonableness that can be reached after the identification of jurisdictional error for a recognised species of error.
For reasons explained in the discussion on ground 1, I am satisfied that the Tribunal had regard to the information provided by the applicant. There is no unreasonableness in the Tribunal’s decision resulting from any alleged failure to have regard to the applicant’s claims.
Although not specifically raised by the applicant, I have also considered whether the Tribunal decision is legally unreasonable based on an outcome focused analysis. The Tribunal decision will be unreasonable if it lacks an evident and intelligible justification: Li at [76].
The Tribunal set out detailed reasons for its decision which clearly show the factors that the Tribunal took into account and the weight it gave to each of the factors relevant to the exercise of the discretion to cancel the applicant’s student visa. In so doing, the Tribunal has provided an evident and intelligible justification for its decision. While other decision-makers may have reached a different view, the decision made by the Tribunal is one which is within the area of decisional freedom.
Ground 2 is not established.
Ground 3
By ground 3 the applicant asserts that he was denied a proper opportunity to meaningfully respond to the NOICC and that he did not get much of an opportunity to give an oral explanation to the Tribunal.
As mentioned above, the delegate’s decision cannot be reviewed by the Court. If the applicant is asserting that the time afforded to him by the delegate to respond to the NOICC somehow led to jurisdictional error in the Tribunal decision, the ground is not established. The applicant was afforded the maximum time allowed by the relevant legislation to respond to the NOICC. Pursuant to s 121(2) of the Migration Act and reg 2.44(2)(a) of the Regulations, the prescribed timeframe for the applicant to respond to the NOICC was five working days. Pursuant to s 121(4) of the Migration Act and reg 2.44(3) of the Regulations, the prescribed period of an extension of time is five working days. In the present case, the applicant was given the NOICC on 2 September 2016 and invited to respond five working days later, namely by
9 September 2016. When he requested an extension of time, he was granted an extension of five working days to 16 September 2016.
In any event, the applicant was given an opportunity to supplement his responses to the NOICC in the course of the review conducted by the Tribunal. After the applicant lodged his application with the Tribunal, the Tribunal sent to him an acknowledgement of that application which enclosed an information sheet. Amongst other things, that information sheet advised the applicant that he could provide any other material which he believed supported his application as soon as possible. The applicant was then invited to attend a hearing, as required by s 360 of the Migration Act. The invitation to attend a hearing requested that the applicant provide any additional documents or information one week before the hearing. The applicant did not provide any additional written documents to the Tribunal and the record of the Tribunal hearing indicates that the hearing ran for just over one hour. There is nothing to suggest that the applicant was unable to effectively participate in that hearing or that the invitation to attend a hearing was not a real and meaningful one.
There is no evidence before the Court from which the Court can conclude that the applicant was not given a proper opportunity to respond to the NOICC and to present his case to the Tribunal. Ground 3 is not established.
Ground 4
This ground appears to assert error based on the speed of the decision-making process. No jurisdictional error is discernible based on the timing of the Tribunal decision.
The applicant lodged his application to the Tribunal on 29 September 2016. The applicant attended a hearing before the Tribunal on 15 June 2017, almost nine months later. As mentioned above, the Tribunal hearing ran for just over one hour. The Tribunal then made a decision on 4 July 2017, which is 19 days after the hearing, as the Minister identified in his submissions. The Tribunal has conducted the review in a timely manner, but without any undue haste.
Ground 6
By ground 6 the applicant asserts that he did not have enough time to provide his information to the delegate, and because of the lack of time, it was not reasonably possible for the Tribunal to conclude that he had breached condition 8202 or to cancel his visa.
To the extent that the ground alleges that the applicant did not have sufficient time to present his case, it overlaps with ground 3 and is dismissed for the same reasons.
To the extent that the ground alleges that the Tribunal decision was unreasonable, it overlaps with ground 2 and is dismissed for the reasons identified in the discussion on ground 2 above. Further, the applicant conceded in his response to the NOICC that he had not been enrolled in a course of study. It was the failure to be enrolled in a course of study that led to the applicant breaching condition 8202. Accordingly, there was nothing unreasonable in the Tribunal’s conclusion that the applicant breached condition 8202.
Grounds 5, 7, 8, 9, 10 and 11
None of these grounds assert jurisdictional error in the Tribunal decision and they cannot establish jurisdictional error.
Ground 5 is simply a statement that the applicant did not know much about visa regulations and therefore was not in a position to understand the NOICC. This speaks only to the applicant’s understanding and does not allege any error on the part of the Tribunal.
Ground 7 asserts that the delegate did not see his exceptional circumstances, and misunderstood and mishandled his case in cancelling his visa. This appears to be an attack on the merits of the Tribunal decision. The Tribunal had regard to the applicant’s evidence about what he considered to be compelling circumstances in his case. After considering these circumstances, along with the other relevant factors, the Tribunal exercised its discretion to cancel the applicant’s visa. The applicant by this ground asserts that he thinks the Tribunal should have exercised its discretion differently to find in his favour. This does not establish jurisdictional error.
Grounds 8, 10 and 11 all address what the applicant would like the Court to do, and they do not suggest that the Tribunal did anything wrong.
Ground 9 simply states that the applicant’s health is now improving so he can concentrate on his studies. This simply refers to a change in the applicant’s circumstances and does not assert any error in the Tribunal decision.
These grounds are all dismissed.
CONCLUSION
The applicant’s grounds do not establish jurisdictional error in the Tribunal decision. It follows that the application to the Court is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Dated: 4 February 2022
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