XIE v Minister for Immigration
[2016] FCCA 2839
•4 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| XIE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2839 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal’s reasoning or conclusions were illogical, irrational or unreasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth), Schedule 8, condition 8202 |
| Cases cited: Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 |
| Applicant: | HAOMENG XIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 686 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stewart SC |
| Solicitors for the Applicant: | Juris Cor Legal |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 686 of 2014
| HAOMENG XIE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 17 February 2014. The Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 573 Student (Temporary) (Class TU) visa.
The Applicant first travelled to Australia in July 2010 as the holder of a student visa. He was granted a student visa on 11 July 2011 subject to condition 8202 in Schedule 8 to the Migration Regulations 1994 (Cth) (the Migration Regulations) which required, among other things, that he be “enrolled in a registered course” (see condition 8202(2)(a)).
On 10 October 2013 a delegate of the First Respondent sent the Applicant a Notice of Intention to Consider Cancellation of his student visa (the NOICC) pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (the Act) on the basis that it appeared that he had not been enrolled in a registered course of study since 14 June 2013.
The Applicant was given the opportunity to respond to the NOICC. By email of 24 October 2013 he replied briefly. He explained that he was an international student from China studying at the University of Wollongong (UoW) and that to graduate he needed the visa. He stated that he preferred to study in Australia to obtain a better education. He attached a conformation of enrolment for a Diploma of Business course at UoW which commenced on 14 October 2013. He promised to do his best to pass the subjects.
On 25 October 2013 the delegate cancelled the Applicant’s visa.
The Applicant sought review by the Tribunal. He attended a Tribunal hearing on 17 February 2014. Prior to the hearing the Applicant’s migration agent provided the Tribunal with a written submission and supporting documentation, including a personal statement from the Applicant. This is discussed below where relevant. A transcript of the Tribunal hearing is in evidence as an annexure to the affidavit of Chloe Anne Hillary affirmed on 30 September 2014.
The Tribunal Decision
In its reasons for decision the Tribunal considered first whether the Applicant had complied with paragraph 8202(2)(a) in condition 8202. Condition 8202 was relevantly as follows:
(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2) A holder meets the requirements of this subclause if:
(a) the holder is enrolled in a registered course; or
(b) in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student – the holder is enrolled in a full-time course of study or training.
…
The Tribunal noted that the requirements of condition 8202 did not allow the visa holder to cease to be enrolled in a course (see Liu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1170). It stated (at paragraph 8 of its reasons):
When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant ceased to be enrolled in a registered course on 14 June 2013. The applicant’s evidence to the Tribunal is that the University of Wollongong (UoW) granted him deferral from October 2012 to June 2013. The Tribunal accepts that the applicant continued to be enrolled at UoW until June 2013 (although he ceased studying in October 2012). The Tribunal finds that on 14 June 2013 the applicant ceased to be enrolled in a registered course. The Tribunal finds that he breached condition 8202 of his visa.
The Tribunal then considered its discretion to cancel the Applicant’s visa. In paragraphs 11-12 of its reasons the Tribunal stated:
The purpose for a student visa holder to travel to and stay in Australia is undertaking studies. The applicant ceased to be enrolled in a registered course in June 2013 and he did not re-enrol in another course until October 2013. The applicant informed the Tribunal in his submissions that he stopped studying in October 2012. That is, the applicant had not undertaken any study for a year while holding a student visa. The Tribunal considers that the applicant was not fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa because he was not undertaking study in Australia for a very lengthy period. The Tribunal considers the breach to be significant, given the importance of enrolment in a course to a student visa and the length of time in which the applicant did not actively engage in studies.
Further, the applicant confirmed in his oral evidence to the Tribunal that he completed several English courses but no other qualification. He is now enrolled in the Diploma of Business. According to the applicant’s passport, a copy of which he presented to the Tribunal, the applicant has been in Australia as a holder of a student visa since July 2010, for a period of three and a half years. The applicant has shown little academic progress in the three and a half years he has spent in Australia and the fact that the applicant completed nothing but English study in that period suggests he has little commitment to study in Australia.
The Tribunal considered the reason for the breach and the circumstances in which it occurred. It observed that while the Applicant had not provided a meaningful response to the NOICC, he had provided extensive submissions to the Tribunal concerning his circumstances. However the Tribunal had a number of concerns about the Applicant’s evidence, which it outlined.
First, the Tribunal considered the Applicant’s claims that from about October 2012 he discovered he had psychological problems, decided to seek treatment in China, sought and was granted a deferral of his studies and returned to China.
In that context it acknowledged that he had provided evidence of having approached a UoW counsellor in November 2012 and medical reports from China concerning his condition, in particular a hospital “outpatient medical record” of 20 January 2013 which recorded a tentative diagnosis of “tristimania” and contained a “treatment opinion” which referred to two types of medication and suggested a possible follow-up examination. A “certificate of disease diagnosis” dated 27 January 2013 confirmed this diagnosis and the suggested treatment.
However the Tribunal expressed “considerable concerns” about the Chinese medical records. It stated that the Chinese hospital report indicated that the Applicant had been prescribed three types of medication, but had regard to the fact that in his oral evidence the Applicant had referred to only one medication and had stated that he could not remember the name of the medication he was prescribed as it was too long ago. The Tribunal was of the view that if the Applicant was regularly taking medication, even some months previously, “he may be expected to remember the name of the medication he was taking”. In addition, the Tribunal had regard to the fact that while the Applicant’s evidence was that his parents did not know about his depression, the medical report indicated that he had been accompanied by his mother who reported him as being in low spirits and suicidal. The Tribunal considered the Applicant’s explanation that a friend (and not his mother) had accompanied him to see the doctor, but had regard to the fact that the medical report expressly referred to the mother. Further, the Tribunal had regard to country information indicating that document fraud was widespread in China. Having regard to these concerns the Tribunal did not consider the medical reports from China to be reliable.
However, the Tribunal went on to state at paragraph 16:
However, even if the Tribunal were to accept that the applicant was depressed from late 2012 to the extent that his illness interfered with his studies, the Tribunal notes that the applicant approached his education provider and was granted a deferral. The letter from UoW, which the applicant presented to the Tribunal, indicates that the applicant was first granted a deferral in November 2012 on compassionate grounds and, when his situation did not improve, he was granted a further deferral in March 2013. Such a deferral was granted until June 2013. If the Tribunal were to accept that the applicant’s illness prevented him from maintaining enrolment in the course between November 2012 and June 2013 (a period for which he was granted a deferral), the issue is the applicant’s failure to maintain enrolment after June 2013. The applicant’s evidence to the Tribunal is that he did not seek a further deferral after that date. The applicant claims that he did not realise he had to seek a further deferral each semester but having been granted two deferrals in the past, the applicant would have been well aware of the fact that he had to obtain a deferral for each period when he was not able to study. He did make an effort to seek a second deferral after his first one expired. There was no reason for the applicant to think that the second deferral after his first one expired. There was no reason for the applicant to think that the second deferral was indefinite. Significantly, the applicant presented to the Tribunal a copy of the letter from UoW which quite unequivocally states that the applicant’s leave of absence on medical grounds was only granted until 14 June 2013. There was nothing misleading about that advice and no reason for the applicant to think that the deferral continued past that date.
The Tribunal considered the Applicant’s claim that he was expecting to receive a warning letter or other advice or reminder from UoW. It did not accept that UoW had any obligation to warn or remind the Applicant about the expiry of the deferral period in circumstances where he had made the deferral application, UoW had approved it and had advised him “until what date the deferral was granted”. The Tribunal was of the view that it was the responsibility of the Applicant, as the holder of the student visa, to ensure that he either resumed his study within that period or sought a further deferral if he was unable to do so. It did not consider that there was any obligation on UoW to do any more.
The Tribunal continued (at paragraph 18):
As noted above, the Tribunal is most concerned with the applicant’s decision to remain in Australia for a very lengthy a period as holder of a student visa while he was (sic) undertaking any study and while he claims to have been unable to continue with his studies.
It is apparent from what follows in the Tribunal reasons that the word “not” was inadvertently omitted before the word “undertaking”. The Tribunal had regard to the fact that while the Applicant’s evidence was that he was granted leave by UoW on 8 November 2012 and that “once he realised he was depressed” he travelled to China for treatment, his passport showed that he did not leave Australia until 27 December 2012 (and returned on 28 February 2013). It found that the Applicant did not travel to China immediately once he realised he was in need of treatment and was unable to continue with study, but rather that he had waited until the end of the semester to make the trip. It considered the Applicant’s explanation that he had “things to do”, that his girlfriend was still studying and he wanted to wait for her, and that flights were cheaper in December. However the Tribunal was of the view that if the Applicant was genuinely in need of treatment he would have returned to China to seek treatment at the first available opportunity. It found that the fact that the Applicant waited for the holiday period to make the trip suggested that his travel to China was only for the purpose of a holiday and not for the purpose of treatment.
The Tribunal considered events in 2013 in stating at paragraph 19:
The applicant claims that he felt better in February 2013 and enrolled in a course. The applicant presented evidence of having started a course on 25 February 2013 and that by 27 March 2013 he was granted further leave. That is, the applicant undertook a month of study in that semester of 2013. After that, he was granted a further deferral until June 2013. He remained in Australia for many months while not engaging in studies. There appears to have been no good reason for the applicant to remain in Australia in that period. If he was seeking treatment in China, as the medical evidence suggests, he had the obvious option of remaining in China and returning to Australia when he was able to resume his study. There he would have the family support and the medical support that he claims he needed. There appears to be no legitimate reason or (sic) the applicant to have been living in Australia, for such a lengthy period, while holding a student visa and while not undertaking any study. The applicant’s decision to remain in Australia when he was not, and claims to have been unable to, undertake any study suggests that the purpose of his presence in Australia was not to study.
The Tribunal had regard to the Confirmation of Enrolment in a Diploma of Business in October 2013. However it found to be significant the fact that within three weeks of being issued with the NOICC, the Applicant “was able to overcome his health issues and was able to enrol in a course”. It considered the Applicant’s claim that he was preparing to resume his studies in that semester and that his enrolment in October 2013 had nothing to do with the NOICC, but found that the proximity of his re-enrolment with the date of the NOICC was “questionable”. The Tribunal found that the “speed” with which the Applicant was able to obtain enrolment when he felt that he had to (in response to the possible cancellation of his visa) suggested that he would have been equally able to obtain enrolment at an earlier date. It found that the fact that he did not do so also suggested that the Applicant was not in Australia for the purpose of study.
The Tribunal considered a psychological report dated 27 November 2013 from a career counsellor/registered psychologist with Jobhouse Psychology which indicated that the Applicant had attended a structured interview on 22 November 2013. It had considerable concerns about that report. The Tribunal was of the view that the timing of the report (six weeks after the Applicant was issued with the NOICC) suggested that the only reason the Applicant saw the psychologist was to assist him with the cancellation process and not because he felt in any need of psychological treatment. It observed that the Applicant had confirmed in his oral evidence that he saw the psychologist because of the visa issues. The Tribunal also had regard to the fact that much of the report was based on the Applicant’s self-reporting and the only psychological test to which the psychologist referred was a self-reporting instrument. In circumstances where the Tribunal had formed the view that the sole reason the Applicant saw the psychologist was to obtain the report to assist him with the visa cancellation process, it did not consider his self-reporting as to his condition to be probative or reliable. The Tribunal found that the report did not offer “convincing evidence” that the Applicant was incapable of maintaining enrolment for a period prior to October 2013. It found it significant that the report had recommended that the Applicant consult a mental health professional in relation to what was said to be his “current emotionally distressed state” and appeared to suggest that the Applicant continued to experience emotional distress at the time it was written (in November 2013). The Tribunal was also of the view that the report did not explain the Applicant’s ability to enrol and actively pursue his study since October 2013. For these reasons the Tribunal did not consider the report to be probative and gave it no weight.
The Tribunal found that, having considered the Applicant’s circumstances, it was not convinced that the breach occurred in circumstances beyond his control. It was not satisfied that there were extenuating or compassionate circumstances that outweighed the grounds for cancelling the visa.
The Tribunal considered the issue of hardship and the Applicant’s contention that he would die if his visa was cancelled before he was able to complete his study because “they” had put a lot of effort and money into his studies and that without his qualifications he had no future. The Tribunal accepted that hardship may be caused to the Applicant if his visa was cancelled because he would not be able to complete study in Australia.
The Tribunal found that nothing adverse was known about the Applicant’s past and present behaviour towards the Department; that there were no persons in Australia whose visas would or may be cancelled under s.140 of the Act; and that Australia’s obligations under international agreements would not be breached as a result of the visa cancellation. It observed that the Applicant had suggested that his family might abandon him if he returned to China without a qualification.
At paragraph 25 the Tribunal addressed the totality of the Applicant’s circumstances as follows:
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa because he failed to be enrolled between June and October 2013. The Tribunal considers the breach to be extensive, given the importance of enrolment to a student visa. The Tribunal has formed the view that the applicant is not a genuine student, primarily because the applicant had only actively engaged in studies for about one month between November 2012 and October 2013. The fact that the applicant chose to remain in Australia during that period as a holder of a student visa, while he claims he was unable to engage in studies, suggests to the Tribunal that he is not a genuine student and that the purpose of his presence in Australia was not study. The Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia, having shown little academic progression since he entered Australia. The Tribunal is prepared to accept that some hardship may be caused by the cancellation because the applicant will not be able to pursue study in Australia but the Tribunal does not consider such hardship to be significant because the Tribunal is not convinced that the applicant has a genuine interest in studying in Australia. No other person would be affected by the cancellation and the cancellation would not be in breach of Australia’s international obligations.
Considering the circumstances as a whole, the Tribunal concluded that the Applicant’s visa should be cancelled. It affirmed the delegate’s decision.
The Applicant sought judicial review by application filed on 18 March 2014. He now relies on an amended application filed on 24 August 2015. Only grounds 1, 3, 6 and 7 were pressed.
Ground 1: The Applicant’s History of Study in Australia
Ground 1 in the Amended Application is as follows:
The Tribunal’s findings that the applicant had not undertaken any study for a year while holding a student visa (paragraph [11] of the Decision) and that the applicant has shown little academic progress in the three and a half years he has spent in Australia and the applicant completed nothing but English study in that period (paragraph [12] of the Decision) were not available on the evidence and ignored relevant material such that the conclusion that the applicant has little commitment to study in Australia (paragraph [12] of the Decision) and does not have a genuine interest in studying in Australia (paragraph [25] of the Decision) is illogical, irrational and/or unreasonable.
The Applicant submitted that the Tribunal made several erroneous findings in relation to his history of study in Australia which were not available on the evidence before it and which ignored relevant material such that the conclusion based on those findings was illogical, irrational and/or unreasonable. In written submissions the Applicant referred generally to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [42]-[42] (sic) and [130]-[131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [63]-[66] and [72] and [76]; and Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 at [43]-[55].
Issue was taken with what were said to be the Tribunal’s findings, in particular in paragraphs 11-12 of its reasons for decision (set out at [9] above), that the Applicant ceased studying in October 2012 and had not undertaken any study for a year while holding a student visa; that he had shown little academic progress in the three and a half years he has spent in Australia; and that he had completed nothing but English study in that period. These findings were said to have been the basis on which the Tribunal concluded that the Applicant had little commitment to study in Australia, which in turn was said to support the conclusion that the Applicant did not have a genuine interest in studying in Australia. It was submitted that in these circumstances the Tribunal’s conclusions were illogical, irrational and/or unreasonable in the sense that there was “no logical connection between the evidence and the inferences or conclusions drawn” (SZMDS at [135] per Crennan and Bell JJ) and that there was “a critical finding by inference not supported on logical grounds” (as considered by Gummow ACJ and Kiefel J dissenting in SZMDS at [53]).
The Applicant submitted that, contrary to the Tribunal’s statement in paragraph 11 that “the applicant had not undertaken any study for a year while holding a student visa”, the evidence before the Tribunal was that although he had ceased studying in October 2012 because he was ill, he had resumed studying again in February 2013 and that after about a month he stopped studying again because of illness. It was pointed out that in his written personal statement of 7 February 2014 the Applicant had explained that he returned to Australia from China in February 2013 to continue with his studies but that “before long” he found that his condition was getting worse and so he made another application for withdrawal. The Applicant had also given evidence at the Tribunal hearing that he was “back to school in February 2013” (transcript page 4, line 30) but that in April 2013 he felt “sick again” (transcript page 4, lines 20-30) and so he asked for another leave of absence (transcript page 4, lines 30-31). Later in the hearing the Applicant told the Tribunal that he enrolled in February 2013 (transcript, page 6, line 25) but that after school started he had “a suicidal tendency” (line 29). He then agreed with the Tribunal that he was granted leave on 27 March 2013 and that he did “less than four weeks of studies” in the period after 25 February 2013 (transcript page 6, lines 36-40).
In addition documentary evidence provided to the Tribunal included a copy of an email to the Applicant from a student advisor at UoW dated 27 March 2013 advising him that the Campus Director had approved his request for a leave of absence for the Autumn session of 25 February 2013 to 14 June 2013 and a transfer of fees from Autumn 2013 to Spring 2013. On 18 November 2013 this advisor certified in a letter “to whom it may concern”, that the Applicant had been approved leave of absence on medical grounds for sessions described as “8/11/2012 to 8/2/2013” and “25/3/2013 to 14/6/2013” (sic). However in a letter dated 1 November 2013 to the Department of Immigration, UoW College indicated that the Autumn 2013 term commenced on 25 February 2013 and that an approved withdrawal by the Applicant of 28 March 2013 for the period of 25 February 2013 to 14 June 2013 due to compassionate and compelling circumstances was reported to the Department on 28 March 2013.
It was submitted that there was no evidence to support what was said to be the Tribunal’s finding (in paragraph 11 of its reasons) that the Applicant had not studied for a year between October 2012 and October 2013 and that relevant evidence to the contrary had been ignored. It was also submitted that the Tribunal’s subsequent acceptance that the Applicant had actively studied for one month in that period did not cure or overcome the reasoning in relation to the matters considered in paragraph 11 of its decision in relation to whether he was fulfilling the purpose of his travel to Australia and the significance of the breach of condition 8202, but rather confirmed the earlier error.
In addition, the Applicant submitted that in finding (in paragraph 12) both that he had shown little academic progress and that he had completed nothing but English study in Australia, the Tribunal had ignored evidence (in Enrolment Record and Variation Forms) in relation to his academic progress. This evidence was said to reveal that in 2010 and 2011 the Applicant had “completed” 10 subjects in English for Tertiary Studies and that in 2012 he had “completed” six subjects across two terms in the Diploma of Business. Counsel for the Applicant submitted that not only was there no evidence to support these Tribunal findings, but also that the evidence before the Tribunal was completely to the contrary and had therefore been overlooked by the Tribunal. It was contended that the evidence in the Applicant’s UoW Enrolment Record had been ignored by the Tribunal and that this had infected the conclusion that the Applicant had little commitment to study in Australia. This issue was said to be critical to the Tribunal’s conclusion that the Applicant’s real intention or purpose for being in Australia was not to study and thus was central to the Tribunal’s decision to exercise its discretion against the Applicant. It was submitted on this basis that the Tribunal’s conclusion that the Applicant had little commitment to study in Australia was illogical, irrational or unreasonable in the sense considered by Crennan and Bell JJ at [135] and Gummow ACJ and Kiefel J at [53] in SZMDS.
The First Respondent submitted that the first impugned part of paragraph 11 of the Tribunal reasons for decision could be seen as simply reciting the Applicant’s evidence in his written statement, rather than making a finding that the Applicant had not in fact undertaken any study for a year while holding a student visa and that, in any event, the contentions that there was “no evidence” for what was said to be the Tribunal finding in paragraph 11 of its reasons that he had not undertaken any study for a year while holding a student visa and/or that the Tribunal had overlooked the Applicant’s evidence about returning to study for a month in February 2013 were not made out having regard to the Tribunal reasons for decision as a whole.
It was also said to be open to the Tribunal to find, on the evidence before it, that the Applicant had shown little academic progress and had completed nothing but English study in Australia and that the Tribunal’s conclusion or decision could not be said to be illogical, irrational or unreasonable in the manner contended for by the Applicant.
Consideration
In SZMDS Crennan and Bell JJ stated at [129]-[131]:
It can be acknowledged that the contemporary invocation of “illogicality” or “irrationality” as a basis for judicial review may well have first emerged in Australia, as intimated by Gleeson CJ in S20, as a reaction to the ouster of the review ground of “Wednesbury unreasonableness” in immigration law. Equally it may be that the development of “irrationality” as a basis for judicial review in England grew out of dissatisfaction with the inherent circularity of the Wednesbury test and the implicit suggestion in Wednesbury that there were degrees or grades of unreasonableness. Be that as it may, accepting that an allegation of “illogicality” or “irrationality” must mean something other than emphatic disagreement as explained above by reference to Eshetu and S20, and also accepting that a demonstration of bona fides will not save an illogical or irrational decision or finding on a jurisdictional fact as stated in SGLB, how do “illogicality” and “irrationality” fit with the clearly related body of law concerned with error, particularly jurisdictional error, in respect of reasoning which is “clearly unjust”, “arbitrary,” “capricious” or “Wednesbury unreasonable”?
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.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion (footnotes omitted).
Their Honours continued at [135]:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
While dissenting, Gummow ACJ and Kiefel J stated at [53]:
To decide by reasoning from the circumstances of the visits to the United Kingdom and Pakistan that the first respondent was not to be believed in his account of the life he had led while residing in the UAE was to make a critical finding by inference not supported on logical grounds. The finding was critical because from it the RRT concluded that the first respondent was not a member of the social group in question and could not have the necessary well-founded fear of persecution.
In Li (albeit in relation to the exercise of a procedural power to adjourn a Tribunal hearing), Hayne, Kiefel and Bell JJ (at [63]-[66]) discussed the basis on which the law requires a standard of reasonableness in the exercise of a discretionary power given by statute. Relevantly their Honours stated at [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 (footnotes omitted).
Their Honours went on to explain (at [72]) that the standard is considered “by reference to the scope and purpose of the statute;” that unreasonableness “is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power” (at [76]); and that it “is a conclusion which may be applied to a decision which lacks an evident and intelligible justification” (ibid).
In Singh the Full Court of the Federal Court also considered the procedural issue of the exercise of a discretionary power (to adjourn a Tribunal review under s.363(1)(b) of the Act). In concluding that the exercise of power was legally unreasonable, the Full Court (Allsop CJ, Robertson and Mortimer JJ) discussed the principles underlying legal unreasonableness at [43]-[51]. The Court pointed out that the concept of legal unreasonableness “can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process... [and]… can also be outcome focussed, without necessarily identifying another jurisdictional error” where “the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”” (at [44]).
Where, as in this case, reasons are given for the decision “the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable” (at [45]).
In Singh their Honours were inclined to the view that where reasons were given it was those reasons that should be considered and that the “intelligible justification” must lie within those reasons (at [47]).
The court continued at [48]:
The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.
In this case it appears that the Applicant’s contentions about unreasonableness reflect the approach suggested by Hayne, Kiefel and Bell JJ in Li at [72]. Their Honours addressed the relationship between specific errors in decision-making which “may also be seen as encompassed by unreasonableness” and also stated:
…Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
The issues raised by the Applicant about paragraphs 11 and 12 of the Tribunal decision are to be seen having regard to the nature of the Tribunal decision as a whole and the statutory basis for the Tribunal’s power to cancel a visa. The condition in question (condition 8202) reflects the fact that a student visa is granted for the purpose of study in Australia. The Tribunal’s power to cancel a student visa for breach of condition 8202 arises under s.116(1) of the Act. The Tribunal has a discretion as to whether to cancel such a visa. Neither the Act nor the Regulations specify matters required to be considered in relation to the exercise of such discretion.
In paragraph 8 of its reasons for decision the Tribunal addressed whether or not the Applicant had complied with condition 8202 (which required him to be enrolled in a registered course). It stated:
When making the application for review, the applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant ceased to be enrolled in a registered course on 14 June 2013. The applicant’s evidence to the Tribunal is that the University of Wollongong (UoW) granted him deferral from October 2012 to June 2013. The Tribunal accepts that the applicant continued to be enrolled at UoW until June 2013 (although he ceased studying in October 2012). The Tribunal finds that on 14 June 2013 the applicant ceased to be enrolled in a registered course. The Tribunal finds that he breached condition 8202 of his visa.
Relevantly, the only period in issue for the purpose of determining whether there was a breach of condition 8202 was the period from June 2013 to October 2013. In this part of its reasons the Tribunal was considering whether the Applicant was “enrolled” in a registered course, not whether he was undertaking any study at any particular time.
The Tribunal (correctly) acknowledged that the Applicant had been granted deferral from October 2012 to June 2013. It accepted that he continued to be enrolled at UoW until June 2013. In other words, it proceeded on the basis that there was no failure to comply with condition 8202 prior to June 2013. However it found that the Applicant ceased to be enrolled on 14 June 2013 and that thereafter he breached condition 8202. These were the circumstances in which the Tribunal’s discretionary power to exercise the Applicant’s student visa was exercised,
In this part of its reasons the Tribunal did refer to the fact that the Applicant had “ceased studying in October 2012”. In isolation this could either be seen as an accurate statement about what happened in October 2012 or as inferring that the Applicant did not resume studying thereafter. However it is apparent that the Tribunal was merely drawing a distinction between study and enrolment, rather than making a finding that the Applicant did not study after October 2012. Hence this part of the Tribunal’s reasons does not support the contention that the Tribunal subsequently made an erroneous finding in paragraph 11 of its reasons. It proceeded on the (correct) basis that for the purposes of considering whether there was a breach of condition 8202 what was in issue was the Applicant’s enrolment status – not whether he was studying. Indeed, even if in this part of its reasons the Tribunal could be said to have overlooked the fact (which it later accepted) that the Applicant undertook about a month of study from February 2013, that was no more than a factual error of no significance to its finding that there was a breach of condition 8202 or to any of its other findings.
As considered further below, reading the Tribunal decision fairly and as a whole, it is clear that the Tribunal understood and, where relevant, had regard to, the Applicant’s evidence that he resumed studying in February 2013 but ceased study after about a month because of illness, that he made an application to withdraw from his course, and that a leave of absence was granted on 27 March 2013 in relation to the Autumn 2013 session which commenced on 25 February 2013.
Ground one refers specifically to paragraph 11 of the Tribunal reasons (set out at [9] above) in which the Tribunal recorded that:
The applicant informed the Tribunal in his submissions that he stopped studying in October 2012. That is, the applicant had not undertaken any study for a year while holding a student visa.
It was not disputed that the reference to a “submission” was a reference to the Applicant’s written personal statement of 7 February 2014 in which he had stated that he decided to apply for withdrawal one month after starting his course commencing on 8 October 2012 and that his application for “withdrawal of 8/10/2012 to 8/2/2012 was approved in Nov 2012”. While the personal statement went on to refer to events of 2013, the Applicant did not claim expressly that he had actually studied in 2013 in that part of his evidence. Rather, he claimed:
At the end of February in 2013, I came back to Australia to continue my study. Before long, I found my condition was getting worse, so I applied for withdrawal again. My application for withdrawal of 25/2/2013 to 14/6/2013 was approved by school …
It was open to the Tribunal to understand that in his written statement the Applicant stated that he stopped studying in October 2012 which, on his evidence, would have meant that he had not undertaken any study for a year while holding a student visa.
As the First Respondent submitted, reading the Tribunal decision fairly and as a whole, this part of paragraph 11 can be seen as the Tribunal recording the Applicant’s written claim.
At the hearing, while the Applicant said he went back to school in February 2013, he also agreed when the Tribunal put to him that he “hadn’t actually studied since around October 2012”. He responded “yes” (transcript p.4, lines 28-36).
This was clarified when the Tribunal later discussed with the Applicant the evidence that he enrolled again in a course starting on 25 February 2013 and by 27 March 2013 was granted leave. It put its understanding of this evidence to the Applicant as follows (transcript p.6, lines 36-46):
[TRIBUNAL MEMBER]: So your course started on 25 February 2013, and on 27 March, you had already been granted leave. So you’ve done less than, what, four weeks of studies in that time.
[INTERPRETER]: Yes.
[TRIBUNAL MEMBER]: So really, effectively, you haven’t done any studies in Australia since late 2012. You have stayed in Australia for a year on a student visa without doing any studies.
[INTERPRETER]: Well, my sick leave started in April 2013 until June 2013.
The Tribunal’s understanding of this evidence is reflected in the last sentence of paragraph 11 of its reasons in which it stated: “The Tribunal considers the breach to be significant, given the importance of enrolment in a course to a student visa and the length of time in which the applicant did not actively engage in studies” (emphasis added). It did not overlook relevant material in this respect.
In the alternative, insofar as the Tribunal did make a finding in the first part of paragraph 11, it was at least open to it from the Applicant’s own written statement. It cannot be said that the “no evidence” principle was applicable to this particular part of the Tribunal reasons. It is well established that this principle does not apply where there is “some” evidence for the conclusion complained of (see for example Repatriation Commission v Holden (2014) 142 ALD 267; [2014] FCA 605 at [55]-[65] per Mortimer J; Australian Postal Corporation v D’Rozario (2014) 222 FCR 303; [2014] FCAFC 89 at [24] per Besanko J, [77]-[78] per Jessup J and [118] and [125] per Bromberg J). There was such evidence in the written statement and also in the Applicant’s oral acceptance in the Tribunal hearing that he hadn’t “actually studied” since around October 2012.
Further if the Tribunal did made a finding in paragraph 11 of the nature contended for in ground 1, it has not been established that such reasoning was not open on the evidence, overlooked relevant material or was otherwise illogical or irrational in the sense considered in SZMDS and/or such as to establish legal unreasonableness.
Bearing in mind the principle in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 that the Tribunal’s reasons should be read fairly and as a whole, paragraph 11 of the Tribunal reasons must be read together with the rest of the decision, in particular paragraphs 19 and 25 in which the Tribunal accepted that the Applicant had studied for a month in February 2013. When the decision is so read, it is evident that the Tribunal did not contradict itself, that there was an evident and intelligible justification for its findings that the Applicant was not undertaking study in Australia for a very lengthy period and hence was not fulfilling the purpose of his travel to Australia and that the breach was significant and also for its ultimate decision.
In paragraph 18 the Tribunal started to address its concerns that the Applicant decided to remain in Australia for a very lengthy period as a holder of a student visa while he was not undertaking any study and while he claimed he was unable to continue with his study. It addressed his delayed return to China. It then went on, in paragraph 19 (set out at [18] above), to address events of 2013. After referring to the Applicant’s claims and the evidence he presented about starting a course on 25 February 2013 and being granted further leave by 27 March 2013 (which, as the Tribunal stated, was evidence that the Applicant undertook a month of study from February 2013), the Tribunal found that the Applicant had remained in Australia for many months while not engaging in studies.
Moreover, in paragraph 25 of its reasons for decision (set out at [24] above), in the context of considering whether to exercise its discretion to cancel the visa (as distinct from finding that there was a breach of condition 8202 consisting of the Applicant’s failure to be enrolled in a registered course between June 2013 and October 2013), the Tribunal made findings about the totality of the Applicant’s circumstances. It recognised and accepted that the Applicant had “actively engaged in studies for about one month between November 2012 and October 2013”. Critically, the Tribunal made it clear that in making these findings, including about the significance of the breach and the purpose of the Applicant’s travel to and stay in Australia (which were the matters referred to in paragraph 11 of its reasons), it had express regard to the Applicant’s evidence that he undertook about a month of study (which the Tribunal described as “only actively engaged in studies for about one month between November 2012 and October 2013”).
To the extent the Applicant claimed that the Tribunal overlooked his oral evidence that he went “back to school in February 2013” and the evidence from UoW in this respect in a manner constituting jurisdictional error, that is inconsistent with the Tribunal’s ultimate acceptance that he had studied for about a month from 25 February 2013 and its findings on that basis.
Hence, even if the Tribunal were to be seen as having initially overlooked the evidence of one month’s study in paragraph 11 of its reasons, this was not critical given its consideration in paragraph 25 of the totality of the circumstances, including the factors referred to in paragraph 11 and having regard to the one month’s study. Any initial factual error in this regard is not such that the Tribunal’s reasoning in paragraph 11 or its subsequent conclusions about whether the Applicant was fulfilling the purposes of his travel on a student visa and the significance of the breach and/or whether to exercise its discretion to cancel the visa can be characterised as illogical or irrational such as to give rise to jurisdictional error or to be characterised as legally unreasonable (see Li and Singh).
In particular, the Tribunal’s eventual findings in relation to the purpose of travel and the significance of the breach (which was the non-enrolment from 14 June 2013 to October 2013) were not based on an acceptance that the Applicant had not undertaken any study from October 2012. When the Tribunal reasons are read as a whole it is plain that the Tribunal accepted the Applicant’s evidence that he had studied for that short period, but that this, combined with all the other circumstances, was not enough to satisfy the Tribunal that he was a genuine student. The Tribunal’s view that the Applicant was not a genuine student was not based on overlooking any part of the evidence of the Applicant.
More generally, the Tribunal’s reasons are not unintelligible. As it stated, in exercising its discretion the Tribunal had regard to matters raised by the Applicant as to why the visa should not be cancelled and to government policy guidelines. There is an evident and intelligible justification for the Tribunal’s exercise of its discretion (see Singh at [43]-[49]). Even if paragraph 11 could be read in the manner contended for by the Applicant, reasonable minds may differ in that respect and also in respect of the conclusions drawn. There was a logical connection between the evidence as a whole and the reasons for the decision (cf SZMDS at [53] and [135]). The decision was open on the evidence before the Tribunal. It cannot be said that the conclusion to which the Tribunal came was one at which no rational or logical decision-maker could arrive on the same evidence as was before the Tribunal (see SZMDS at [130]-[135]).
In addition, this ground contends that the Tribunal’s findings in paragraph 12 that the Applicant had shown “little academic progress” and had completed nothing but English study in the three and a half years since entering Australia were not available on the evidence and ignored relevant material such that the Tribunal’s conclusions about the Applicant’s commitment to and genuine interest in study in Australia were illogical, irrational and/or unreasonable.
However while the UoW enrolment record the Applicant provided to the Tribunal stated “complete” in relation to 10 subjects in an English for Academic Purposes course in which he had been enrolled in 2010 and 2011, it also recorded “F” as the “Grade” for two of these subjects (with marks below 50) and “U” as the grade for three other subjects (with marks below 50) and recorded the Applicant’s enrolment as “lapsed”. Moreover, while this record also stated that the “status” of six subjects in a Diploma of Business course undertaken by the Applicant across two terms in 2012 was “complete”, it also recorded five grades of “F” (and marks below 50) and only one “P” for the six subjects shown as “complete”.
Further, at the hearing the Tribunal had asked the Applicant (transcript p.2) what study he had completed in Australia. The Applicant’s response was (transcript, p.12, lines 46-47):
Well, I completed a language course, ETS study and a module course and I’m studying a diploma.
The Tribunal then put to the Applicant that he had not “really completed anything other than language courses in the last three and a half years”. The Applicant agreed (transcript p.13, line 9). The Tribunal then put to the Applicant:
So once again, you don’t seem to have shown very much academic progress in the three and a half years that you have been here. How are you a student?
The Applicant replied (through the interpreter):
Well, because my English wasn’t good when I first came, that’s why I wanted to study language courses and I attend all the classes, but the reason I didn’t finish diploma is because I’m sick. If I wasn’t sick, I should have finished it by now.
Consistent with this evidence, in paragraph 12 of the Tribunal reasons for decision, the Tribunal referred to the fact that the Applicant had “confirmed in his oral evidence to the Tribunal that he completed several English courses but no other qualification. He is now enrolled in the Diploma of Business”.
Seen in context, it is clear that when the Tribunal referred to courses the Applicant had “completed”, it was referring to satisfactorily completed qualifications, as distinct from undertaking courses or particular subjects.
It has not been established that the impugned findings were not open to the Tribunal or that it overlooked or ignored relevant evidence. First, it is clear that the Tribunal had regard to the Applicant’s oral evidence that he had completed several English courses, but had no other qualifications. Such evidence was given in response to questioning about study and courses he had completed. The Tribunal acknowledged that it understood that at the time of the decision the Applicant was enrolled in the Diploma of Business. There was evidence in the Applicant’s Enrolment Record of the fact that he had enrolled, but achieved a fail grade, in several courses shown as “complete” (including in a Diploma of Business course in 2012). Despite the description “complete”, the Enrolment Records also showed subsequent re-enrolments in subjects in which a fail grade had been achieved.
Further, in paragraph 12 of the Tribunal’s reasons for decision it was considering the Applicant’s academic progress and commitment to study in Australia having regard to the “qualifications” he had obtained since arriving in Australia as the holder of a student visa in July 2010. In that context, in considering the Applicant’s academic progress it had regard to “completed” study in the sense of satisfactorily completed courses.
It has not been established that there was no evidence to support the Tribunal’s findings in this part of its reasons for decision having regard to the evidence as to qualifications the Applicant had obtained. Such findings were available on the evidence. The Tribunal did not ignore relevant material in such a way as to establish that its conclusion that the Applicant had little commitment to study and/or the conclusion that he did not have a genuine interest in studying in Australia or its ultimate conclusion in relation to whether to exercise its discretion to cancel the visa was illogical or irrational in the sense considered in SZMDS per Crennan and Bell JJ or otherwise. On the evidence before the Tribunal a rational or logical decision-maker could have come to the same conclusion, even if different minds may have reached a different conclusion (SZMDS at [130]-[135]).
The Tribunal also described the Applicant having “shown little academic progress”. This was based on the fact that he had only completed some language courses, but had no other qualifications. That was a factual judgment for the Tribunal to make, in circumstances where the Applicant had been in Australia for several years and, on his own evidence, had not completed (in the sense of finished) any degree or diploma course, other than a language course. The Tribunal regarded this level of achievement in three and a half years of study as “little academic progress”. Reading paragraph 12 of the Tribunal reasons for decision as a whole and also in the context of the decision, it is apparent that what the Tribunal was considering was the extent to which the Applicant had obtained qualifications in Australia, not simply the extent to which he had undertaken subjects or courses. It was open to the Tribunal to regard the Applicant’s progress as “little academic progress” on the evidence before it and its conclusions have not been shown to be illogical or irrational in the sense considered in SZMDS.
None of the matters raised in ground 1 establish that the Tribunal’s exercise of discretion as to whether to cancel the Applicant’s visa or the outcome of the decision was unreasonable in the sense of lacking a rational foundation or otherwise. It has not been shown to be clearly unjust (see Li at [76]), arbitrary or capricious or to lack an evident and intelligible justification. It has not been established that the Tribunal decision was not a lawful outcome of the exercise of its discretionary power under the Migration Act to cancel a student visa where the visa holder failed to comply with the condition requiring that he maintain enrolment (see Li and Singh).
This ground is not made out.
Ground 3: The Chinese Medical Records
Ground 3 in the Amended Application is as follows:
The Tribunal fell into jurisdictional error in dealing with the applicant’s medical records from China. First, there was no evidence to support the conclusion that the applicant was regularly taking medication. Secondly, it was illogical and/or irrational to draw the inference from the fact that the applicant could not remember the name of the medication that he took that he had not been ill or that the Chinese medical records were unreliable. Thirdly, it was illogical and/or irrational to draw the inference that the medical records were substantively unreliable because they recorded the inconsequential fact that the applicant had been accompanied by his mother when in fact he had been accompanied by a friend. Fourthly, it was illogical and/or irrational to reject the medical report on the basis of the country information which indicated that document fraud is widespread in China when there was ample other evidence to support the genuineness of the medical report in this case. On the above grounds, the MRTs rejection of the medical report was illogical, unreasonable and irrational.
As explained in submissions, this ground relates to an Outpatient Medical Record from a hospital in Xiangyang City in China dated 20 January 2013, a translation of which appears in the Courtbook. This document stated that the Applicant attended the hospital as an outpatient (emergency) on 20 January 2013 and continued:
Complaint: Companied (sic) by the mother: being in low spirit, sleepless, inclined to die for two months.
It detailed the Applicant’s symptoms of “insomnia, low spirit, slow reaction, feeling meaningless to live and would rother (sic) like to die, loss of appetite, uninterested in study in the latest two months” and the results of what were described as “medical” and “mental” examinations. It contained a “tentative diagnosis” of “tristimania” (which Counsel for the Applicant suggested was a diagnosis of melancholia) and continued:
Treatment opinion:
(1) Escitalopram 10 mg gol;
(2) Buspirone Hydrochloride Tablets 10 mg Tiol;
(3) Follow-up examination if feeling uncomfortable.
The Applicant also provided the Tribunal with a translation of a further document described as a “Certificate of Disease Diagnosis” dated 27 January 2013 from the same hospital and doctor stating that the diagnosis was “tristimania” and suggesting “treatment without delay” and “intensive care and avoiding accident like passive suicide etc”.
Relevantly, the Tribunal stated in paragraph 15:
The Tribunal has considered the applicant’s medical records from China and has considerable concerns about that evidence. Firstly, the report from the hospital in China indicates that the applicant was prescribed three types of medication. In his oral evidence to the Tribunal the applicant referred to one medication and stated that he could not remember what medication he was prescribed as it was too long ago. In the Tribunal’s view, if the applicant was regularly taking medication, even some months ago, he may be expected to remember the name of the medication he was taking. Secondly, the applicant informed the Tribunal that his parents do not know about his depression, however, the medical report indicates that the applicant was accompanied by his mother who reported him as being in low spirits and suicidal. The applicant informed the Tribunal that a friend, and not his mother, accompanied him to see a doctor but the medical report expressly refers to the mother. Thirdly, country information before the Tribunal indicates that document fraud is widespread in China (see Department of Foreign Affairs and Trade 2011, DFAT Report No. 1349 – DFAT Request – CHN39550, 9 December). Having regard to the above-noted concerns, the Tribunal does not consider the medical reports from China to be reliable.
The first two issues raised by this ground are related. It was submitted that there was “no evidence” and no basis for the Tribunal’s “conclusion” that the Applicant was “regularly” taking medication. It was also submitted that it was illogical and/or irrational to draw the inference from the fact that the Applicant could not remember the name of the medication that he took that he had not been ill or that the Chinese medical records were unreliable.
There was said to be no evidentiary basis for what was said to be a conclusion by the Tribunal that the Applicant was regularly taking medication in circumstances where the medication had been prescribed some 13 months before the Tribunal hearing. On the contrary, the Applicant’s evidence at the Tribunal hearing (transcript pp.5-6) was said to support an inference that he had not been taking the medication in the previous six months.
As to the inference said to have been drawn, the Applicant submitted that some people may remember the name of medication more readily than others, but that it was not open to the Tribunal to conclude that because he could not recall the name of the medication prescribed, that he had not been ill or that the medical report which prescribed the medication was unreliable. It was contended that the inference drawn by the Tribunal in this respect was unreasonable, illogical and/or irrational. It was, in essence, suggested that reasonable minds would not have differed in respect of the conclusions to be drawn from this evidence and that a logical or rational decision-maker could not have come to the same conclusion on the material before the Tribunal.
In addition, the Applicant submitted that the Tribunal had drawn an inference that because the report recorded the “inconsequential fact” that he had been accompanied by his mother (whereas his evidence at the hearing was that he had been accompanied by a friend) the report was substantially unreliable and that this was also illogical and/or irrational. It was contended that as a matter of logic the fact that the Applicant had apparently reported at the hospital that the person accompanying him was his mother cast no doubt on the substantive or medical parts of the report.
Further, it was submitted that it was illogical and/or irrational to reject the medical report on the basis of country information indicating that documentary fraud was widespread in China when there was said to be other evidence to support the genuineness of the report that had been overlooked by the Tribunal, consisting of the Applicant’s own evidence, the fact he had seen a UoW counsellor on 16 November 2012 who had recorded that he would benefit from treatment in his home culture, and also the fact that the Applicant had been in China at the time of the report. The Applicant submitted that the country information cast no particular doubt on the medical report and that the Tribunal was obliged to have regard to the independent facts that might logically corroborate the genuineness of the medical report before rejecting it. In these circumstances the Tribunal’s rejection of the medical report was said to be illogical, unreasonable and irrational.
While the manner in which this ground is expressed may be taken to assert that each of the Tribunal’s “concerns” was treated as a separate basis on which it rejected the reliability of the Chinese medical report, the Applicant submitted that the impugned bases for the Tribunal’s rejection of the medical evidence were cumulative, rather than separate and independent (cf Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 at [83]). However, it was contended that individual material findings of fact which went to support the ultimate decision could be infected by illogicality or irrationality (see SZMDS per Crennan and Bell JJ at [131] and Gummow CJ and Kiefel at [53]).
The First Respondent acknowledged that the Tribunal appeared to have erred in proceeding on the basis that there were three (rather than two) medications referred to in the medical report (although this was not said to be a jurisdictional error). However it was submitted that it was open to the Tribunal to regard the Applicant as having acknowledged that he had been taking medication regularly, in the sense of over a lengthy period, from the evidence at the hearing, even if he had stopped taking it more recently.
In any event, it was submitted that at most the Applicant’s complaint in this respect amounted to an allegation of a wrong finding of fact which did not amount to an error of law (see Waterford v Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 77; Australian Heritage Commission v Mount Isa MinesLtd (1997) 187 CLR 297; [1997] HCA 10 at 303; and Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137]).
The First Respondent also submitted that it was open to the Tribunal to have regard to the Applicant’s failure to remember the name of the medication prescribed (as raised at the Tribunal hearing). It was contended that it could not be said that no reasonable person could expect a person taking medication over such a lengthy period to remember the name of the medication.
The First Respondent submitted that reasonable minds could differ in relation to the Tribunal’s reasoning concerning the Applicant’s mother. It was pointed out that this issue had been raised with the Applicant at the hearing. After the Applicant claimed that a friend of his had accompanied him to the hospital (as he had to be accompanied by someone to see the doctor), the Tribunal had asked him (transcript, p.9) how it could accept the documents “when firstly it tells that you were accompanied by your mother when you told me your parents don’t know about your depression and secondly you can’t remember what medication you were prescribed?”. It was said to be open to the Tribunal to have regard to the difference between what the medical report stated and the Applicant’s evidence at the hearing.
The First Respondent also submitted that given the independent evidence as to the prevalence of document fraud in China referred to by the Tribunal, it was not obliged to regard any document from China as necessarily reliable, but could potentially view such documents with suspicion and that its reasoning in that respect could not be seen as unreasonable in the sense that it was something on which reasonable minds would not differ.
It was also submitted that even if this part of the Tribunal’s reasoning was seen as illogical in the manner contended for by the Applicant, the issue of medication was but one of a number of separate and independent reasons for the Tribunal finding the medical report to be unreliable and hence that this did not by itself establish that the Tribunal’s decision was illogical such as to give rise to jurisdictional error. This contention was put on the basis that there was no other issue of illogicality, irrationality or unreasonableness in relation to the other bases for the Tribunal reasoning in the sense considered in SZMDS (see also SZOCT at [83]-[84]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [85]; SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78; [2013] FCA 123 at [111]-[113], [125] and SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276; [2013] FCA 566 at [66]).
More generally, the First Respondent submitted that if there was any issue of illogicality or irrationality with the Tribunal’s reasoning in relation to the reliability of the medical reports, the rest of the Tribunal’s reasoning appeared not to be based on a rejection of the fact that the Applicant was depressed, so that it could not be said that any one factor relied on in relation to the reliability of the medical records or the finding about the reliability of the medical records was critical to the Tribunal’s decision in the sense considered in SZOCT, SZNKO and SZRLQ. Hence it was submitted that illogicality or irrationality in the sense considered in SZMDS (and discussed in SZOOR) had not been made out.
Consideration
In addition to SZMDS (which was relied on by the Applicant) and Li and Singh (see [39]-[45] above), other authorities cited by the First Respondent are of relevance in relation to whether any illogicality or lack of rationality in an aspect of the Tribunal’s reasoning about its concerns relevant to the medical records was such as to give rise to jurisdictional error, whether characterised as legal unreasonableness or otherwise, bearing in mind that “not every lapse in logic will give rise to jurisdictional error” and the caution urged by Crennan and Bell JJ in SZMDS at [129]-[131]).
In SZOCT at [83]-[84] Nicholas J (as part of the majority with Buchanan J) acknowledged that it could not logically or rationally be concluded on the basis of the Tribunal’s exploration of the visa applicant’s knowledge of the Bible at the Tribunal hearing that the visa applicant did not have a level of knowledge that might reasonably be expected of a person who had believed in and practised in Christianity in China as claimed.
However, Nicholas J had regard to the fact that this finding was not the only basis for the Tribunal’s lack of satisfaction that the visa applicant was a person to whom Australia had protection obligations. The reasons of the Tribunal in SZOCT made it clear that there were other matters which led it to find that the visa applicant was not a credible witness. It had drawn upon these matters “singularly and cumulatively” in support of that finding. Nicholas J was of the view (at [84]) that the other matters relied on by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the visa applicant was not a witness of truth and that it was then open to it to hold that it was not satisfied that the visa applicant was a non-citizen to whom Australia owed protection obligations.
In SZOOR, McKerracher J discussed the extent to which illogicality may amount to jurisdictional error having regard to the principles in SZMDS. Relevantly, his Honour pointed out (at [82]) that not all errors of law would be jurisdictional and that a court reviewing for jurisdictional error must not stray into the area of merits review.
McKerracher J referred to the meaning of “illogicality” as discussed in SZMDS, set out the findings of Crennan and Bell JJ in SZMDS at [129]-[131] and continued at [83]-[85]:
…it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. This is the test developed from S20 (at [52]) per McHugh and Gummow JJ and with whom Callinan J agreed.
In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131])…
After quoting the remarks of Crennan and Bell JJ in SZMDS at [131] his Honour continued:
What was said by Heydon J at [78],… in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J (emphasis added).
In SZNKO Barker J pointed out (at [111]), consistent with the approach taken by Crennan and Bell JJ in SZMDS, that illogicality or irrationality sufficient to give rise to jurisdictional error meant that the decision of the Tribunal was one at which no rational or logical decision-maker could arrive on the same evidence, that not every lapse in logic would give rise to jurisdictional error, and that it was necessary to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the finding that it did on the material before it. Relevantly, in the circumstances of that case it was also suggested that the particular finding in respect of which complaint was made did not appear to be critical in relation to the Tribunal decision (which was made primarily by reference to a number of other findings and not just the impugned finding).
While it is clear from Singh that legal unreasonableness may arise both in the decision-making process and in the outcome of the Tribunal review, in SZRLQ Yates J suggested (at [66]) not only that the appellant’s criticism of a particular concern expressed by the decision-maker was misplaced in relation to the actual finding made, but also pointed out that it was but one matter amongst a number of others that had led the decision-maker to question generally the completeness and reliability of the appellant’s evidence. In those circumstances his Honour was of the view that, regardless of whether the particular criticism could be made of that aspect of the decision, it could not be said that the decision-maker’s state of non-satisfaction on the ultimate question for determination was, as a consequence, arbitrary or capricious in the sense considered in SZOCT and SZNKO.
As to the specific issues raised by this ground, first, the Tribunal did not reach a “conclusion” that the Applicant was regularly taking medication. The issue of whether there was “no evidence” for a conclusion did not, strictly speaking, arise in this context. Rather, the Tribunal understood that the Applicant’s evidence involved a claim that he had been taking prescribed medication on a regular basis. The Applicant told the Tribunal he had treated his depression with “taking medication”. It was in that context that he was asked to provide the names of the medication. The following exchange occurred at the hearing (transcript p.5-6):
[TRIBUNAL MEMBER]: When did it start? When did it finish? How did you treat it? What happened?
[INTERPRETER]: Well, it was – it started in the second half of 2012, and I was very agitated, always did things that’s (sic) out of the ordinary. Then, I went to see the school psychologist at the end of the year, and he said I’m – have a very severe depression. So I went on the leave. I went back to China to treat it. I’ve provided the records.
[TRIBUNAL MEMBER]: How did you treat it?
[INTERPRETER]: Talk to the psychologist, and taking medication.
[TRIBUNAL MEMBER]: What medication were you taking?
[INTERPRETER]: Well, the name of the medicine could be called … or it’s the Chinese name.
[TRIBUNAL MEMBER]: Mr [Applicant], could you write it down?
[INTERPRETER]: I don’t know how to write it in English.
[TRIBUNAL MEMBER]: Well, write it down in Chinese.
[INTERPRETER]: I don’t know if it’s in this …
[TRIBUNAL MEMBER]: … I’m just showing the interpreter your medical report, which has the medication which you’re supposedly prescribed, to see whether that’s the one that you’ve mentioned.
[INTERPRETER]: That’s on the medical records.
[TRIBUNAL MEMBER]: Well, the English translation has the – your medical report shows three medications that you have been prescribed.
[INTERPRETER]: Yes.
[TRIBUNAL MEMBER]: Can you remember what they were?
[INTERPRETER]: Too long ago.
[TRIBUNAL MEMBER]: It was too long ago?
[INTERPRETER]: Yes.
[TRIBUNAL MEMBER]: It was about a year ago. Less than a year ago.
[INTERPRETER]: Yes. [indistinct] this medicine too much, and …
[TRIBUNAL MEMBER]: So you were prescribed three medications. Can you tell me what they were? I don’t want you to be reading off your report. I want you to remember, if you can, which medication you were prescribed. So why not ---
[INTERPRETER]: Well, because the second half of last year, I became much, much better, so I really didn’t remember the medicine.
[TRIBUNAL MEMBER]: The [indistinct] can buy pretty much any document in China, so one of the question – one of the things that we will be looking into is whether the medical reports you have presented are, in fact, genuine documents. And if you’re taking medication for more than a year, but you can’t remember what it is?
[INTERPRETER]: Well, I really didn’t buy those documents. I swear.
It was open to the Tribunal to infer that the Applicant claimed that he had been taking “the medicine” regularly, “even some months ago”, which recognised his claim that he became much better in the second half of 2013 (some six months after the date of the medical report).
While jurisdictional error may be established on the basis of illogicality or irrational reasoning or findings as well as on the basis of the ultimate conclusion or decision, it was not illogical or irrational such as to amount to jurisdictional error for the Tribunal to proceed on the basis that the Applicant’s claim was that he had been taking the prescribed medication “regularly” (particularly as it acknowledged that this may have been “some months ago”), and for it to have regard to his inability to recall the medication said to have been prescribed in the medical report.
The Tribunal did not draw an inference from the Applicant’s failure to recall the name of medication that he had not been ill. Although it clearly doubted the seriousness of his condition, as discussed further below, it proceeded on the basis that he had had depression.
Further, bearing in mind that not every lapse in logic will give rise to jurisdictional error and the caution to be exercised in interfering with a Tribunal decision on this basis (see Crennan and Bell JJ at [130] in SZMDS), it has not been established that a logical or rational decision-maker could not, like the Tribunal, have reasoned on the evidence that a person in the position of the Applicant who had (as the Tribunal understood his evidence) claimed to have been regularly taking medication, albeit perhaps a few months earlier, may be expected to remember the name of allegedly prescribed medication and to have regard to his inability to do so as one of its “concerns” in considering the reliability of the medical record in which such medication was prescribed. It did not draw an inference that the records were unreliable solely on this basis.
Even if there was an element of illogicality or irrationality in the Tribunal’s reasoning in relation to the medication it was not sufficient to give rise to jurisdictional error. There was “room for a logical or rational person to reach the same decision on the material before the decision maker” (see SZMDS at [135]). Different minds might reach different conclusions in the sense considered by Crennan and Bell JJ at [131]-[132] (and see Heydon J at [78] and Gummow ACJ and Kiefel J at [40]) on the evidence before the Tribunal. There was an evident and intelligible justification for the concern expressed by the Tribunal about the Applicant’s inability to remember the name of prescribed medication he had been taking regularly. The fact that the Tribunal regarded this as one of the factors which led it to conclude that the medical report which was said to have prescribed listed medications was not “reliable”, was not such as to amount to or demonstrate legal unreasonableness in the decision-making process or (whether considered alone or in combination with the other impugned aspects of the Tribunal’s reasoning) in the outcome of the Tribunal review.
As to the Tribunal’s reasoning in relation to the reference to the Applicant’s mother in the medical report, the fact that the Tribunal had regard (among other things) to the difference between the Applicant’s evidence that his parents were unaware of his depression and what the medical report recorded (notwithstanding the explanation he provided) as one concern in considering the reliability of the report has not been shown to be irrational or illogical reasoning in the sense considered in SZMDS.When seen as involving an inconsistency, this issue was not an “inconsequential fact” as the Applicant submitted, let alone such as to demonstrate the degree of illogicality or irrationality necessary to lead to a finding of jurisdictional error.
Similarly, it was open to the Tribunal to have regard (as one of several factors) to the country information about document fraud in China. It did not base its finding about the reliability of the medical records on this information alone. Given that it was addressing its “concerns” about the reliability of the medical reports it was not illogical or irrational (as contended in this ground) for the Tribunal to fail to refer to evidence consistent with the Applicant’s claim that he had medical treatment in China in this context. Insofar as it was suggested that the Tribunal failed to have regard to or overlooked other evidence consistent with the report, in considering whether to cancel the visa the Tribunal considered the Applicant’s circumstances on the basis that he was depressed from late 2012 to the extent that his illness interfered with his studies and had regard to the UoW evidence from November 2012 and the Applicant’s return to China in December 2012 and whether this was for treatment.
It has not been established that, considered individually or cumulatively, the impugned aspects of the Tribunal’s reasoning in relation to the reliability of the medical reports were such as to establish jurisdictional error, either in the decision-making process or in relation to the Tribunal’s conclusion, whether considered in terms of irrationality, illogicality or legal unreasonableness.
The First Respondent contended that even if there was a lapse of logic in the Tribunal’s reasoning, such as in relation to the relevance of the Applicant’s failure to recall the name of medications said to have been prescribed, there were a number of separate and independent reasons given by the Tribunal for finding the medical report unreliable, so that (as in SZOCT) a deficiency of the nature contended for by the Applicant in relation to one aspect of its reasoning about the medical report would not of itself establish illogicality amounting to jurisdictional error. I am not persuaded that the “concerns” expressed by the Tribunal were separate and independent bases for its finding about the reliability of the medical reports. Rather, the Tribunal had regard to a number of cumulative concerns in finding that the Chinese medical reports were not reliable.
However, the Tribunal went on to make findings about factors relevant to the exercise of its discretion on the basis of accepting the Applicant’s claim that from late 2012 he was depressed to the extent that his illness interfered with his studies (the matter attested to in the January 2013 medical records).
In that context it accepted and had regard to the fact that the Applicant had approached his education provider and had been granted an initial deferral in November 2012 on compassionate grounds and then a subsequent deferral in November 2013 when his situation did not improve. However, it stated (at paragraphs 16 and 17):
If the Tribunal were to accept that the applicant’s illness prevented him from maintaining enrolment in a course between November 2012 and June 2013 (a period for which he was granted a deferral), the issue is the applicant’s failure to maintain enrolment after June 2013. The applicant’s evidence to the Tribunal is that he did not seek a further deferral after that date. The applicant claims that he did not realise he had to seek a further deferral each semester but having been granted two deferrals in the past, the applicant would have been well aware of the fact that he had to obtain a deferral for each period when he was not able to study. He did make an effort to seek a second deferral after his first one expired. There was no reason for the applicant to think that the second deferral was indefinite. Significantly, the applicant presented to the Tribunal a copy of the letter from UoW which quite unequivocally states that the applicant’s leave of absence on medical grounds was only granted until 14 June 2013. There was nothing misleading about that advice and no reason for the applicant to think that the deferral continued past that date.
The applicant claims that he was expecting to receive a warning letter or other advice or reminder from the University. The Tribunal does not consider that the University had any obligations to warn or remind the applicant about the expiry of the deferral period. He had made the application for deferral. The University approved the application and advised the applicant until what date the deferral was granted. It was the responsibility of the applicant as the holder of the student visa, and not of the University, to ensure that he either resumed his study within that period or sought a further deferral if he was unable to continue with his studies. The Tribunal does not consider that there was any obligation upon the University to do any more.
In other words, while the Tribunal did not regard the Chinese medical reports as reliable and expressed doubts about the Applicant’s need for treatment and the fact that he did not return to China after March 2013, it proceeded on the basis that the Applicant was depressed from late 2012 to the extent that his illness interfered with his studies from November 2012 to June 2013, consistent with the deferrals granted and also the Applicant’s oral evidence that he “became much, much better” in the second half of 2013 (transcript p.6, lines 1-2). This was the matter addressed in the medical report which diagnosed “tristimania” in January 2013.
Thus, if there was some limited lapse in logic in the Tribunal’s reasoning in relation to a factor of concern to it in connection with the Chinese medical reports, the Tribunal’s reasoning about the reliability of the medical reports was not critical and did not affect the ultimate decision. It was open to the Tribunal to make the findings it made that were critical to its decision in the sense considered in SZNKO and SZRIQ. The other matters relied on by the Tribunal were logically and rationally capable of supporting the Tribunal’s findings about the reason for the breach (that is, non-enrolment from June 2013) and the circumstances in which that breach occurred, as well as the ultimate conclusion in relation to whether the visa should be cancelled. There was an evident and intelligible justification in the Tribunal’s reasons for its findings and the outcome of the decision. As Crennan and Bell JJ stated in SZMDS at [135] “On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal.” Furthermore “It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision.” (ibid).
Even if some the Applicant’s criticisms of the logic of paragraph 15 of the Tribunal decision were made out, having regard to the decision as a whole, it had not been established that the Tribunal’s exercise of its discretion in relation to cancellation of the visa was, as a consequence, arbitrary or capricious, lacked an evident or intelligible basis or was otherwise such as to be legally unreasonable.
This ground is not made out.
Ground 6: Another Person Affected by the Cancellation
Ground 6 in the Amended Application is as follows:
The Tribunal found in paragraph 25 of the Decision that “no other person would be affected by the cancellation”. There was evidence before the Tribunal that the applicant had a new girlfriend: see report of Chris Oszywa dated 27 November 2013. She would be affected by the cancellation. The Tribunal fell into jurisdictional error in overlooking the circumstances of the girlfriend and in not asking the applicant whether there was anyone else who might be adversely affected by a cancellation.
The Applicant submitted that the Tribunal had erred in finding that “no other person would be affected by the cancellation” of the Applicant’s visa, as there was evidence before it that the Applicant had a girlfriend who, it was submitted, would “obviously” be affected by the cancellation. Issue was also taken with the fact that the Applicant was not asked by the Tribunal whether anyone other than immediate family members would be affected, so that the issue of how severely or otherwise the girlfriend might be affected was not explored. It was submitted that there was, accordingly, a denial of procedural fairness to the Applicant, that the finding in question was not available on the evidence before the Tribunal and that these errors were jurisdictional errors.
The First Respondent submitted that the fact (according to the report of the psychologist based on an interview of 22 November 2013) that the Applicant claimed that he had a new girlfriend who was helping him not to gamble or self-medicate did not, without more, indicate that her interests would be affected by the cancellation. It was also submitted that if this had been the Applicant’s claim it was for him to put it to the Tribunal (see Abebe at [187]). It was pointed out that the Tribunal did not have to refer to every item of evidence and that a failure to refer to an item of evidence generally did not mean that it had not been considered (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46] and Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33 at [65]). Further, the Tribunal was not generally obliged to put its ultimate reasoning to the Applicant for comment (see Minister for Immigration and Citizenship vSZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9]). The First Respondent submitted that in the absence of a specific submission to the Tribunal by the Applicant as to why another person would be affected by the cancellation, the Tribunal’s conclusion was open to it and unsurprising.
Consideration
The Tribunal did not overlook evidence or an aspect of the Applicant’s claims in a manner constituting jurisdictional error. As the First Respondent submitted, the fact that a psychologist recorded that in November 2013 the Applicant had a new girlfriend who was helping him by preventing him from gambling and self‑medication, does not of itself indicate that her interests would be affected by the cancellation. Nor was this information such that the Tribunal was under an obligation to make a specific inquiry in relation to the possible impact of cancellation on the girlfriend.
Generally, it is for an applicant to put a claim to the Tribunal (consistent with Abebe at [187]). In this instance, at the conclusion of the Tribunal hearing, the Tribunal gave the Applicant the opportunity to put before it any other matters of concern (transcript p.14, lines 9-15). It did so in circumstances where it had specifically asked the Applicant what hardship he thought might be caused to his immediate family members if his visa was cancelled, consistent with policy which instructs a decision-maker to have regard to the degree of hardship that may be caused to the visa holder and any family members as a consequence of cancellation of the applicant’s visa (see s.140 of the Act). This was addressed by the Tribunal in paragraph 24). It also asked the Applicant if he had any dependents in Australia.
The Tribunal also asked if there was anything else the Applicant would like it to consider when it decided whether or not his visa should be cancelled (transcript, p.14) to which the Applicant responded “no”. When the Tribunal then asked generally if there was anything that the Applicant would like to tell it before the hearing concluded, the Applicant stated that during the past year many things had happened to him. He lost a lot of money gambling, his best friends left and, notably, “my girlfriend left me” (transcript p.14, lines 18-19) (although it is not clear whether this was a reference to his girlfriend of 2012 or 2013). He claimed that all these things had resulted in his depression, but that he felt a lot better now so he hoped he could get a chance to finish his study before he went back to China.
There is no support in the transcript for any contention that the Tribunal overlooked evidence of the Applicant in a manner constituting jurisdictional error (cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317) or that it denied the Applicant procedural fairness by failing to make inquiries of him in relation to the impact of cancellation on others.
Further, it cannot be said that the Tribunal’s finding that no other person would be affected by the cancellation of the Applicant’s visa was not available to it on the evidence before it in circumstances where, despite being given the opportunity to do so, the Applicant had not, either in his written submissions or orally, indicated that there was some other person whose interests would be affected by the cancellation. This ground is not made out.
Ground 7: Reason for Remaining in Australia
Ground 7 in the Amended Application is as follows:
There was no evidence to support the findings that there was no good reason and no legitimate reason for the applicant to have remained in Australia between 27 March and June 2013, that the applicant had the obvious option of remaining in China and returning to Australia when he was able to resume his study, and that his decision to remain in Australia when he was not able to undertake any study suggested that the purpose of his presence in Australia was not to study (paragraph [19] of the Decision).
The Applicant submitted that the Tribunal found that there was “no good reason” and “no legitimate reason” for him to have remained in Australia between 27 March and June 2013; that he “had the obvious option of remaining in China and returning to Australia when he was able to resume his study”; and that his decision to remain in Australia when he was not able to undertake any study suggested that the purpose of his presence in Australia was not to study.
Such findings were said to be without evidential foundation in circumstances where the Applicant had returned to Australia in February 2013 in order to study and had commenced studies which he pursued for about a month, but then felt unwell and unable to continue and on this basis had been granted a second deferral.
It was submitted that it was apparent that the Applicant hoped to get better and resume his studies and that it was no easy matter to return to China, as there was considerable expense involved. This was said to be evident from what the Applicant had said at the Tribunal hearing about having only returned to China in late 2012 at a time when flights were less expensive.
While the ground was not expressed in these terms, the Applicant also submitted that the Tribunal had erred in not putting to him that he should have returned to China in March or April 2013 and not returned to Australia until he was better and that his failure to have followed that course was evidence that the purpose of his presence in Australia was not to study and that he had no “good” or “legitimate” reason to be in Australia. This was said to be a denial of procedural fairness and consequently a jurisdictional error.
The First Respondent submitted that insofar as the Tribunal’s conclusion was said to be without evidence and irrational, as it was based on the Applicant’s own claims it could not said to be without evidence and that as reasonable minds could differ concerning such reasoning, it could not be said to be irrational. It was submitted that essentially the Tribunal had reasoned that if the Applicant was as unwell as he claimed, he would have remained in China or returned there until he was well enough to recommence studies in Australia. It was suggested that such reasoning had a logical basis, given that the Applicant’s family and his claimed medical treatment were both in China. It was submitted that the Applicant’s disagreement with this reasoning sought merits review.
In addition, it was submitted that the Tribunal was not obliged to put its ultimate reasoning to the Applicant and pointed out that, in any case, at the hearing it had asked the Applicant why he stayed in Australia on a student visa when he could not study. On this basis it was contended that there could not be said to be any breach of procedural fairness.
Consideration
Paragraph 19 of the Tribunal decision is set out at [18] above. It is one part of the Tribunal’s consideration of whether the purpose of the Applicant’s presence in Australia was to study. The Tribunal addressed the Applicant’s claims that he felt better in February 2013 and enrolled in a course. It acknowledged that he had presented evidence of starting a course on 25 February 2013, but that by 27 March 2013 he was granted further leave until June 2013 (and that this meant that he undertook a month of study in first semester 2013).
The Tribunal expressed concern about the fact that after March 2013 the Applicant remained in Australia for many months while not engaged in studies. It was of the view that there appeared to be no good reason for him to remain in Australia in that period. In this context the Tribunal had regard to the absence of what it regarded as a satisfactory explanation from the Applicant for the fact that he remained in Australia for many months while not engaging in study in circumstances where in China he would have had the family and medical support he claimed he needed.
The Tribunal did not make a finding that there was “no good reason” or “no legitimate reason” for the Applicant to stay in Australia while not able to study. Rather, it had regard to the fact that there “appeared” to be no good reason. Moreover, while not all decision-makers may have reasoned in this way, that does not establish jurisdictional error. The Applicant’s disagreement with the Tribunal’s reasoning in this respect seeks merits review. The Tribunal’s reasoning process and conclusion were reasonably open to it on the material before it for the reasons which it gave.
Further, in the course of the hearing the Tribunal raised such issues with the Applicant, in particular the fact that he came back to Australia in February 2013, decided he could not study because he was still depressed and had studied for less than a month. Critically, it specifically asked him (transcript, p.9) why he stayed in Australia after that, to which he responded:
Well, I stayed here from – I stayed here after depressed – after I came back to Australia until June. I thought, okay, I can go back in June to study – start a new semester. But – and also I had – I brought a lot of medicine back to Australia from China, so I think I will be all right, but after that I still didn’t feel good, so.
The Tribunal then reiterated its concern and clearly put the Applicant on notice in asking:
My question is why you decided to stay here. You haven’t done any study, really, since late 2012. You stayed here for a full year. The only time you travelled to China was for holidays, but you stayed here for a full year on a student visa without doing any studies. You had family support in China. You had a doctor in China who was supposedly treating you. Why stay in Australia on a student visa when you couldn’t study?
The Applicant replied:
Well, if I go back, my family will know that I’m sick and I don’t want to worry them. My father and mother – they are not young any more and I don’t want to make them feel worried.
The Tribunal also raised with the Applicant the fact that his suggestion that his family did not know that he was sick was contradicted by the medical certificate that he had presented.
As submitted for the First Respondent, the impugned part of the Tribunal’s reasoning was based on the Applicant’s own evidence. It has not been established that there was “no evidence” for such reasoning. It was reasoning on which reasonable minds could differ. It had a logical basis, given that the Applicant’s family and his claimed medical treatment were both in China.
Furthermore, the Tribunal was not under a general obligation to put its reasoning to the Applicant (see SZGUR). At the hearing it asked the Applicant why he stayed in Australia on a student visa when he could not study, thus raising this issue insofar as it was a dispositive issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63).
This ground is not made out.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 4 November 2016
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