Wicramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 727
•15 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wicramanayake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 727
File number: MLG 3691 of 2019 Judgment of: JUDGE CHAMPION Date of judgment: 15 August 2024 Catchwords: MIGRATION – Student visa – Where the Tribunal did not fail to have regard to relevant considerations – Application dismissed Legislation: Migration Act 1958 (Cth) s. 116(1)(b) Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submissions: 12 August 2024 Date of hearing: 12 August 2024 Place: Melbourne Solicitor for the Applicant: Mr Bandara of PLS Lawyers Counsel for the First Respondent: Mr C E Hibbard Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3691 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASHAN WICRAMANAYAK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
15 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant pay the First Respondent's costs fixed in the sum of $8,371.30.
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 CHAMPION:
WHAT IS THE ISSUE?
The Applicant is a Sri Lankan citizen and was the holder of a student visa. The issue is whether the Tribunal made a jurisdictional error because it did not have regard to “all relevant circumstances” when it exercised its discretion to cancel the Applicant’s student visa under s. 116(1)(b) of the Migration Act 1958 (Cth) because the Applicant had not complied with a condition of the visa because he had not maintained his enrolment in a registered course of study.
For the reasons below, there was no jurisdictional error.
WHAT IS THE RELEVANT LEGAL FRAMEWORK?
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 a Full Court explained that the decision to cancel a visa under s. 116 has two elements: power and discretion. First, as to the power to cancel a visa, a decision-maker must be “satisfied” that grounds for cancellation exist. Relevantly, under s. 116(1)(b), the decision-maker had to be “satisfied” that the visa holder had “not complied with a condition of the visa”. Second, as to discretion, once satisfied that the grounds for cancellation existed (that the decision-maker had power to cancel the visa), the decision-maker had a discretion as to whether (or not) to cancel the visa. The state of satisfaction which is a “jurisdictional precondition” for the cancellation should be distinguished from the subsequent exercise of discretion (Djokovic, [29]).
The relevant legal principle is that jurisdictional error may arise where, in exercising a discretionary power, a decision-maker fails to have regard to relevant facts or materials or a substantial and clearly articulated argument (PlaintiffM1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ)). The relevant passage in Plaintiff M1 at [24] is as follows:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations …. the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker.
WHAT IS THE RELEVANT BACKGROUND?
The Applicant had arrived in Australia on 14 February 2015 on a student visa (Tribunal Reasons, [15]). The Tribunal noted:
20.The applicant readily conceded in evidence, that he was not enrolled in a registered course of study from 23 May 2017 until the date of the visa cancellation on 12 July 2018.
Because the Applicant was not enrolled in a registered course, he had not complied with condition 8202(2) attached to his visa and was “liable to cancellation [of his visa] under s. 116(1)(b)” (Reasons, [21]). The decision-maker had power to cancel the visa. The Applicant does not contend otherwise in his judicial review application before me.
DID THE TRIBUNAL FAIL TO HAVE REGARD TO ALL RELEVANT CIRCUMSTANCES IN THE EXERCISE OF ITS DISCRETION TO CANCEL THE VISA?
As to the second element of the decision-making process under s. 116, the issue of discretion, the Applicant submitted that there were “several valid reasons” he had not been enrolled in a registered course since 23 May 2017.
Ground 1 (the Applicant’s single ground of judicial review) is that the Tribunal’s discretion miscarried because “it did not have regard to all the circumstances”, namely, the “several valid reasons”. The Applicant particularised Ground 1 by particularising four relevant circumstances he says the Tribunal did not have regard to as follows:
(a)the purpose of the Applicant’s travel to, and stay in, Australia;
(b)that the Applicant had satisfied all other requirements to be granted the visa to study in Australia;
(c)a psychologist’s clinical judgment that the Applicant was suffering from a psychological disorder; and
(d)the hardship to the Applicant that would be occasioned by the cancellation of his visa.
Did the Tribunal have regard to the purpose of the Applicant’s travel to, and stay in, Australia?
The Tribunal set out the purpose of the Applicant’s travel to, and stay in, Australia in its Reasons, at [23] – [27]. Whilst the Tribunal accepted that the Applicant may have travelled to Australia intending to study, and intended to study in the future, he had “got into bad habits” (Reasons, [24(iii)]). It appeared to the Tribunal that, in fact, he may not have been attending classes earlier than 23 May 2017. He lost his enrolment because he did not pay his tuition fees (Reasons, [24(iv)]). The Tribunal found that the period of non-enrolment from 23 May 2017 until the visa was cancelled on 12 July 2018 some 14 months later was a “long period of time”.
In its Reasons, at [23]–[27], the Tribunal brought its mind to bear upon the facts of the Applicant’s purpose of travel to, and stay, in Australia as it was required to do (Plaintiff M1, [24], above). I do not accept the Applicant’s submission that the Tribunal failed to have regard to the purpose of the Applicant’s travel to, and stay in, Australia.
Did the Tribunal have regard to the fact that the Applicant had satisfied all other requirements to be granted the visa to study Australia?
The fundamental inquiry which framed the Tribunal’s discretion as to whether to cancel the visa was why the Applicant, a student visa holder, had not been enrolled in a registered course of study from 23 May 2017 for 14 months until the visa’s cancellation on 12 July 2018.
The Applicant, before me, was not able, in his written submissions, or orally, to develop why his compliance with other visa conditions was material to the exercise of the Tribunal’s discretion.
The matters the Tribunal might take into account in exercising its discretion as to whether to cancel the visa were not fettered by statute. There was no mandatory requirement for the Tribunal to take into account the Applicant’s compliance with other visa conditions in exercising its discretion. It was for the Applicant to frame his case before the Tribunal. I accept the First Respondent’s submissions that, by reference to the material, the Applicant has not established that he framed his case before the Tribunal on the basis that his compliance with other conditions of his visa was material to the Tribunal’s discretion as to whether to cancel the visa.
The Applicant framed his case on the basis of an argument that the cancellation of his visa would occasion hardship to him because he had a psychological disorder as set out in Mr Edwin Kleynhans psychologist’s report. The practical reality was that his non-compliance with the condition that he be enrolled in a registered course as a student visa holder was always going to be an important condition relevant to the exercise of the discretion. His compliance with other visa conditions, even if proved, were peripheral matters.
I discern no error in the Tribunal’s approach as to this issue.
Did the Tribunal have regard to a psychologist’s clinical judgment that the Applicant was suffering from a psychological disorder?
The Applicant’s central explanation for not maintaining his enrolment in a registered course of study was a medical report of Mr Edwin Kleynhans, psychologist, dated 31 May 2019 (Report).
The Applicant told the Tribunal that his father had died on 16 July 2016 which “caused him an acute sense of grief, loss and guilt culminating in depression and anxiety that made his life spiral out of control” (Reasons, [24(i)]).
The Tribunal dealt in detail with this issue. It noted that the Report had set out that the psychologist diagnosed the Applicant as suffering from a psychological disorder “because of problems with severe depression and substance abuse due to the death of his father” (Reasons, [32]).
The Tribunal wrote at [31] of its Reasons:
Whilst the Tribunal understands that the applicant may have had psychological issues arising from the death of his father as set out in Report, the Tribunal is not satisfied that his psychological issues relating from the death of his father caused him to cease being enrolled in his course of study from 23 May 2017 and prevented him from re-enrolling in a course until the cancellation of the visa.
The Tribunal noted that the Report was based on consultations which occurred after the date on which his visa was cancelled and were not “contemporaneous with” the Applicant’s non-enrolment in a registered course of study (Reasons, [33]). Further, the Tribunal noted that the Applicant did not present “medical evidence or details of treatment during the period from the death of his father to the cancellation of the visa” (Reasons, [34]). The Tribunal also wrote at [34]:
the Report does not conclude that the applicant’s condition was so severe that he could not study by reason of his medical condition or could not seek enrolment and deferment of his studies by reason of his psychological condition. Ultimately the applicant continued to study for a period of more than 12 months after the death of his father.
The Applicant did not argue, before me, that the Tribunal was in error as to its recording of the Report’s conclusions.
The Tribunal took these “hardship” issues into account and gave them “significant weight towards the visa not being cancelled”, that is, in favour of the Applicant (Reasons, [44]). Nonetheless, its conclusion was that “the tribunal does not find the applicant’s psychological condition as being the reason for the applicant not being enrolled for a period of nearly 14 months” in a registered course of study (Reasons, [34]).
Contrary to the Applicant’s submissions, the Tribunal, as it was required to do, brought its mind to bear on the psychologist’s clinical judgment and the material before it as to the Applicant’s psychological disorder.
Did the Tribunal fail to have regard to the hardship which would be occasioned to the Applicant by the cancellation of his visa?
The Tribunal expressly considered the degree of financial, psychological, emotional, or other hardship that may be caused to the Applicant by the cancellation of his visa at [37]–[44] of its Reasons.
The Applicant claimed that if his visa was cancelled, he would suffer emotional or financial hardship because he would not have completed his studies and would not be able to obtain a job in Sri Lanka (Reasons, [38]).
The Tribunal brought its mind to bear on the material from the psychologist that if the Applicant were to return home that there was a risk “that he will struggle and his condition will develop into full-blown depression” (Reasons, [41]). Although the Tribunal gave this matter “significant weight” towards the visa not being cancelled, in its discretion, it concluded that these matters did not “constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa” (Reasons, [43]–[44]).
CONCLUSION
The Tribunal, in comprehensive reasons, considered – in the sense of bringing its mind to bear upon – each of the matters the Applicant now submits it failed to have regard to. The Tribunal’s reasons are structured on the basis that each of these matters was a heading in the Tribunal’s reasons followed by several paragraphs of reasons as to each matter. The Applicant has not proved jurisdictional error on the basis that the Tribunal did not have regard to all the relevant circumstances.
For completeness, although the Applicant did not submit that the Tribunal exercised its discretion in a legally unreasonable way, it cannot be said that “no sensible authority acting with due appreciation of its responsibilities” would have exercised its discretion in this way (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71] citing Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064). Further, the Tribunal’s decision to exercise the discretion as it did had an “evident and intelligible” foundation (Li, [76]) such that its decision cannot be properly characterised as a legally unreasonable decision. It was reasonably open to the Tribunal to balance competing considerations in the exercise of its discretion as it did and cancel the visa.
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 15 August 2024
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