Vitharanage v Minister for Home Affairs

[2019] FCCA 2828

FEDERAL CIRCUIT COURT OF AUSTRALIA

VITHARANAGE v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2828

Catchwords:
MIGRATION – Notice of intention to cancel visa issued to applicant for non-compliance with conditions of issue – failure of applicant to advise of relevant change of circumstances – cancellation of visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.101, 102, 103, 104, 105, 107, 109

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: NUWAN ANURADHA AHANGAMA VITHARANAGE

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 316 of 2019

Judgment of: Judge Egan

Hearing date: 24 September 2019

Date of Last Submission: 24 September 2019

Delivered at: Brisbane

Delivered on: 24 September 2019

REPRESENTATION

Applicant: In-Person

Counsel for the First Respondent: Mr Psaltis

Solicitors for the First Respondent: ClaytonUtz

ORDERS

1. The application for review filed on 1 April 2019 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 316 of 2019

NUWAN ANURADHA AHANGAMA VITHARANAGE

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka. He is 23 years of age. He arrived in Australia on 3 February 2016 as the holder of a subclass 573 Higher Education Sector Visa.

2. The applicant enrolled in a Bachelor of Business Degree course which was to commence on 11 July 2016 and end on 31 July 2019.  The applicant’s PRISMS record shows, however, that the applicant’s enrolments in a number of courses had been cancelled. On 2 August 2018 the Department wrote to the applicant indicating that it was considering cancelling the applicant’s visa.[1]

   [1]        Court book pages 26 – 37 inclusive.

3. The basis of the Department having sent to the applicant its notice of intention to consider cancellation was twofold, namely:

   a)non-compliance with the provisions of s. 103 of the Migration Act1958 (Cth) (the Act) relating to the provision of a bogus document; and

   b)non-compliance with the provisions of s. 104 of the Act relating to notification of a change in circumstance.

4. Sections 103 and 104 of the Act relevantly provide as follows:

   103 Bogus documents not to be given, etc.

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.

   104 Changes in circumstances to be notified  

   (1) If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

   (2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

   (3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

(4) Subsection (1) applies despite the grant of any visa.

1. On 16 August 2018 a representative of the applicant responded to the notice. On 28 August 2018 a delegate of the Minister decided to cancel the visa pursuant to the provisions of sections 107 and 109 of the Act, having regard to the applicant’s non-compliance with sections 103 and 104 of the Act. On 6 September 2018 the applicant made application to the Administrative Appeals Tribunal for review of the delegate’s decision. On 1 February 2019 the applicant’s representative provided written submissions to the Tribunal.

2. On 8 February 2019 the applicant appeared before the Tribunal for a hearing. On 21 February 2019 the applicant’s representative provided further written submissions to the Tribunal. On 27 February 2019 the Tribunal decided to affirm the delegate’s decision to cancel the visa. The Tribunal was satisfied that a valid precondition of cancellation existed in that the applicant had not complied with the provisions of s. 104 of the Act because:

   a)particulars given in relation to the applicant’s compliance with the financial criteria for his visa had changed between the date of the application for the visa being granted and the date on which the applicant had arrived in Australia;  and

   b)the applicant had not notified the Department of such change.

3. On 1 April 2019 the applicant filed an originating application for review of the Tribunal’s decision. 

4. The grounds of the application for review are as follows:

   Grounds of Application

   1. The First Respondent failed to take into account the total value of the funds disclosed in the Applicant’s visa application. Rather, the First Respondent focussed solely on the loan amount which the Applicant’s mother borrowed and then repaid.

   2. The First Respondent misapplied s 99 of the Migration Act because it failed to consider that, for the purpose of that section, the relevant information was that he had access to sufficient funds. That remains unchanged.

   3. The Second Respondent failed to take into account a relevant consideration, namely the Applicant’s submissions dated 1 February 2019. Included in those submissions were the Applicant’s arguments as to why s 104 of the Act was not breached.

   4. The Second Respondent erred in finding that the Minister’s delegate approved the Applicant’s visa application based on the funds borrowed by the Applicant’s mother. The delegate approved the visa application based on all the information in the application, including the total value of funds disclosed in the Applicant’s mother’s statement.

   5. The Second Respondent took into account irrelevant considerations, namely the Applicant’s education results.

5. As was helpfully pointed out by Mr Psaltis of counsel, grounds 1, 2 and 4 are of the same ilk, as are grounds 3 and 5. The grounds can respectively be grouped together in that regard. 

6. At [8] of its reasons, the Tribunal recorded that the applicant enrolled in a Bachelor of Business Degree course at the Holmes Institute, such course to commence on 11 July 2016.

7. At [9] of its reasons, the Tribunal recorded that PRISMS records showed that the applicant’s enrolments for a variety of courses since 29 February 2016, had all been cancelled. It was noted that the applicant’s enrolment in the Bachelor of Information Technology course was cancelled by the provider because of non-commencement of studies.  Such enrolment was cancelled on 25 July 2016, shortly after the course of study was due to commence.

8. At [13] of its reasons, the Tribunal recorded that pursuant to the provisions of section 109(1) of the Act, the Minister was allowed to cancel a visa if the visa-holder had failed to comply with sections 101, 102, 103, 104, 105 or 107(2) of the Act. Such sections required non-citizens to provide correct information in their visa applications and passenger cards, and not to provide bogus documents in relation thereto. It also required such non-citizens to notify the Department of any incorrect information of which they became aware, and of any relevant changes in their circumstances.

9. At [16] of its reasons, the Tribunal noted that the issue before the Tribunal was whether there was non-compliance in the way described in the s.107 notice, and, if so, whether the visa should be cancelled. The questions before the Tribunal related to non-compliance with the provisions of sections 103 and 104 of the Act, but the grounds for review related only to matters relating to non-compliance with section 104 because the Tribunal, relevantly, did not rely upon any breach of s. 103 of the Act when affirming the decision of the delegate.

10. As to the alleged s.104 non-compliance, it was asserted by the applicant that he had access to funds sufficient to support him and any members of his family unit for the total period of his stay in Australia during the time of his proposed courses of study. It was submitted that evidence from the applicant’s mother indicated that she had the capacity to pay for such living expenses of the applicant through savings and a loan that she had secured from the Peoples Bank in Sri Lanka. On the basis of that information, the visa was granted to the applicant.

11. However, as pointed out by the Tribunal in [20] and [21] of its reasons, the correct situation was that the applicant’s mother did not have the funds necessary to support the applicant during his course of study in Australia, because the loan allegedly obtained for that purpose had been discharged only a few days after the applicant’s arrival in Australia. The money able to support the applicant was no longer available to pay the applicant’s tuition fees or living expenses. In respect of that change, the applicant did not relevantly inform the Department of such change in circumstances. 

12. The applicant claimed that he had, in fact, complied with s. 104, stating that he did not know that his mother had repaid the loan until he received the 2 August 2018 notice of intention to cancel the applicant’s visa. It was pointed out to the applicant that the applicant had not, as at the time of that decision, provided written advice to the department that his financial circumstances had changed. It is to be noted that such notice of intention to cancel was sent approximately 1.5 years after the date of the applicant’s arrival in Australia.

13. At [23] of its reasons, the Tribunal recorded that at the hearing before it, the applicant was asked to provide evidence of financial records able to demonstrate that the applicant’s mother or some other person had continued to provide funds to support him during the course of his stay in Australia. The applicant was noted to be unable to provide any such documentation.  Indeed, the applicant stated that he had been supported by his wife and his mother since August 2018. The applicant claimed that he had no work rights because his visa did not allow him to work. 

14. At [24] of its reasons, it was noted by the Tribunal that it had put to the applicant a copy of his PRISMS academic record, which was suggested to indicate that the applicant was not enrolled in a complying course either at the time that his visa was cancelled, or prior to that time.  The Tribunal had asked the applicant to provide some evidence that he was enrolled in a relevant course, and evidence that he had paid fees as required. The applicant provided the Tribunal with an interim statement of results after the hearing which showed that between 11 July 2016 and 23 July 2018 the applicant had passed only one of 16 subjects in which he was enrolled, that he had failed six, and received a zero per cent score for the others. The applicant provided no evidence that he had paid for his courses or, if he had, where the funds had come from. [2]

    [2]        CB page 178 – Interim Statement of Results.

15. A claim made by the applicant to the Tribunal that financial records sought by the Tribunal indicating the source of funds, both for living and for education expenses, were irrelevant. The Tribunal disputed such submission. However, the evidence before the Tribunal was that the alleged loan obtained for the applicant’s support had been repaid by the applicant’s mother the day after the applicant was granted his visa on 25 January 2016. As the applicant had arrived in Australia on 3 February 2016, it was evident that he had so arrived without any means of support, most notably from funds said by him to be available for his support in Australia through his mother’s loan. 

16. At [28] of its reasons, it was noted by the Tribunal that the applicant had refused to provide the Tribunal with evidence that he had paid his school fees. 

17. At [29] of its reasons, the Tribunal found that the applicant had not informed the Department of a material change in his circumstances, namely that he had no funds to support himself, or alternatively, that the funds that were previously said to be available to him from his mother were no longer so available as and from the time that he arrived in Australia. The Tribunal accordingly found, at [30] of its reasons, that there had been relevant non-compliance with the provisions of s. 104 of the Act.

18. Having found that there was non-compliance with the provisions of s. 104 of the Act, the Tribunal then went on to consider whether the applicant’s visa should be cancelled.

19. At [35]-[37] inclusive of its reasons, the Tribunal set out in detail the matters which had to be taken into account for the purpose of deciding whether or not a visa should be cancelled in circumstances where there had been non-compliance with a relevant provision of the Act. 

20. At [40] of its reasons, the Tribunal found that had the applicant informed the Department prior to his departure for Australia, and prior to his arrival in Australia, that he no longer had access to the funds said to be available to his mother via a loan, that the visa would not have been granted to the applicant. 

21. At [41] of its reasons, the Tribunal found that even if the applicant had been unaware that his mother had repaid the loan, the applicant was certainly aware that his mother was not funding him in respect of either his living expenses or in respect of his tuition fees. In the absence of the provision to the Tribunal of requested financial documentation verifying the source of funds used for the applicant’s living, and for any tuition undertaken by him, the Tribunal was entitled to infer, as it did, that the applicant well knew that his financial circumstances had changed, and changed dramatically, as opposed to the circumstances as portrayed in his application for the visa. 

22. At [43] – [45] of its reasons, the Tribunal closely considered compassionate reasons advanced by the applicant as to why his visa should not be cancelled.  Reference was made by the applicant, in that regard, to his wanting to remain in Australia to complete his studies, his being married to a Sri Lankan student who also studied in Australia, as well as the fact that the applicant had no obligations to an employer. None of those reasons were considered as compelling reasons to waive non-compliance with the relevant conditions for maintenance of a visa. The Tribunal did not err in so finding.

23. In all of the circumstances, the Tribunal considered that there was no reason not to cancel the visa.

24. The Tribunal arrived at its decision after a careful consideration of all of the matters before it, those matters being of short compass.

25. When reaching its decision, it cannot be said that the Tribunal, after having analysed the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] - [27] where it was said, per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:

    “[25] 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.35 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.

    [26] 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 nothing 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. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. 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.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

26. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

1. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. The grounds for review are without merit. The Tribunal closely considered the question of what funds the applicant had access to, and how circumstances had changed since the date on which he was granted his visa. In all of the circumstances, the applicant failed to demonstrate why he did not advise the Department of a relevant change in his financial circumstances. There was a clear breach of s. 104 of the Act. The Tribunal did not err in making the finding which it did in relation to the applicant being in breach of such obligation.

3. As to the assertions that the Tribunal took into account irrelevant considerations and failed to have regard to relevant considerations;

   a)The Tribunal clearly considered the relevant issue before it, namely whether the applicant had failed to comply with the provisions of section 104 of the Act. The applicant was resistant to providing any financial records which might have assisted his case. The Tribunal could not be said to have failed to have had regard to relevant information in that regard.

4. A similar complaint made in ground 5 in relation to the Tribunal having allegedly taken into account irrelevant considerations is also without merit. The Tribunal was specifically referred to the evidence of poor education results obtained by the applicant during the course of his limited study in Australia, and of his non-enrolment in complying courses of study. That ground also is without foundation. 

5. The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal. 

6. The application for review is without merit and is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  7 October 2019