Zain v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 512
•11 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zain v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 512
File number(s): MLG 1441 of 2024 Judgment of: JUDGE CHAMPION Date of judgment: 11 June 2024 Catchwords: MIGRATION LAW – Cancellation of student visa because the First Respondent was satisfied that its holder was not or was not likely to be a genuine student – Whether there was a failure to take notice and account of a governmental policy – Facts did not engage the policy –Whether the decision was affected by legal unreasonableness because of illogical or irrational reasoning – No illogical or irrational reasoning – Any error not material – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 116, 252, 338, 476, 499 Cases cited: COT15 v Minister for Immigration and Border Protection (No. 1) (2015) FCR 148; [2015] FCAFC 190
CRU8 v Minister for Home Affairs (2020) 277 FCR 493; [2020] FCAFC 129
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of last submission/s: 30 May 2024 Date of hearing: 30 May 2024 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr J Barrington Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1441 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD ZAIN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
11 JUNE 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the Respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
By an amended application filed 28 May 2024, Mr Muhammed Zain (the Applicant) seeks judicial review of a decision of a delegate (delegate) of the Respondent (Minister or Respondent) dated 23 May 2024. By that decision, the Minister by his delegate exercised his discretion to cancel the Applicant’s student (subclass 500) visa (visa) under s. 116(1)(fa)(i) of the Migration Act 1958 (Cth) (Act) in circumstances in which he was satisfied that the Applicant was not a genuine student.
Since the cancellation of his visa, the Applicant has been in immigration detention. In his Originating Application, as filed on 23 May 2024, the Applicant sought an interlocutory injunction to restrain his removal from Australia. Because of the injunction application, the matter was listed for an urgent hearing on 30 May 2024.
At the hearing on 30 May 2024, the Respondent provided an assurance to the court that the Applicant would not be removed until the determination of the judicial review application (at least in this court) on the basis that the court was able to conduct a final hearing urgently and deliver reasons expeditiously. By the consent of the parties, the time available on 30 May 2024 was repurposed to conduct a final hearing as to the judicial review application. In the circumstances set out above, the interlocutory application was not pressed.
The Applicant challenged the delegate’s decision on two main bases.
By Grounds 1 and 2 the Applicant submitted that there was jurisdictional error because, when considering visa cancellation in circumstances in which the Applicant had a deferral of his studies “in place”, the delegate did not take notice and account of a governmental policy that he should seek information from the Applicant’s education provider as to the reasons for the deferral. I have found that the Policy provided that the delegate should seek information if cancelling the visa – “on the basis” of – that is because of the deferral. The cancellation decision was not made because the Applicant had deferred of his studies and the relevant policy was not engaged.
Ground 3 was whether the decision was materially affected by irrational reasoning because the delegate took into account the Applicant’s financial troubles, a matter he argued had “no rational bearing” on whether he was a genuine student. I have found that there was no error as to Ground 3. First, I have not accepted the foundational premise of the ground that the Applicant’s financial troubles (particularly that he had defaulted on fees) had no rational bearing on whether he was a genuine student. Paying the fees is part of being a genuine student. Secondly, if I am wrong, there were separate, intelligible and justifiable reasons apart from his financial troubles for the decision that he was not a genuine student because the Applicant had not completed a course for more than 5 years and had a poor attendance record.
I will dismiss the application. My reasons follow.
MATERIAL BEFORE THE COURT
The Applicant read two affidavits of Ms Leah Perkins, his legal representative, together with their annexures. Ms Perkins’ first affidavit was made on 23 May 2024 (First Affidavit) . Ms Perkins’ second affidavit was made on 28 May 2024 (Second Affidavit).
The Respondent read an affidavit of Ms Michelle Stone, lawyer, made on 27 May 2024 together with its annexures (MES-1–MES-16) (Ms Stone’s affidavit).
Each party relied on a written outline.
It is convenient to set out a summary of the relevant background drawn in large part from the annexures to Ms Stone’s affidavit. Ms Stone’s affidavit together with its annexures comprises pages 1–190. It is to those page numbers that these reasons refer.
SUMMARY AND BACKGROUND
The Applicant is a citizen of Pakistan.
In February 2019 he applied for and was granted a student visa (Ms Stone’s affidavit, p. 7–23; pp. 71–75).
On 26 February 2019 the Applicant first arrived in Australia as the holder of that student visa. (Ms Stone’s Affidavit, p. 77).
On 15 March 2023 the Applicant applied for a further student visa (Ms Stone’s Affidavit, pp. 79–95). He then held a Confirmation of Enrolment (COE) for a Bachelor of Engineering Technology (Civil) course at Melbourne Polytechnic (Ms Stone’s affidavit, pp. 80, 116).
On 3 May 2023 the Applicant was granted a student (subclass 500) visa (Ms Stone’s affidavit, pp. 118–122). It permitted the Applicant to stay in Australia until 15 August 2027 and permitted him “multiple entries” to Australia (Ms Stone’s affidavit, p. 18).
The Applicant did not complete the course in which he had been enrolled at the time of the further visa application (on 15 March 2023). He subsequently enrolled in, but did not complete, an Advanced Diploma of Hospitality Management, a General English course, three Advanced Diploma of Civil Construction Design courses, three further Bachelor of Engineering Technology (Civil) courses, and a Graduate Diploma of Management (Learning) (Ms Stone’s affidavit, pp. 115–116).
On 30 March 2024, the Applicant departed Australia while holding the visa (Ms Stone’s affidavit, p. 77).
At the date of the delegate’s decision on 23 May 2024, the Applicant was enrolled in an Advanced Diploma of Civil Construction Design at Harward International College in Melbourne.
On 23 May 2024 the Applicant arrived at Melbourne Airport (Ms Stone’s affidavit, pp. 77, 124–125).
On 23 May 2024, commencing at 7.31am, an officer of the Australian Border Force interviewed the Applicant (Ms Stone’s affidavit, p. 149). During the interview, the officer conducted a search of the Applicant’s mobile phone under s. 252 of the Act and took photographs of the Applicant’s phone screen (Ms Stone’s affidavit, pp.127–147).
On 23 May 2024 (at approximately 10.12am), the delegate notified the Applicant of an intention to consider cancelling the Applicant’s visa (NOICC) (Ms Stone’s affidavit, pp. 166–171). The Applicant was interviewed in respect of his response to the NOICC.
On 23 May 2024, at about 1.50pm, the delegate cancelled the Applicant’s visa under s. 116(1)(fa)(i) of the Act (Ms Stone’s affidavit, p. 182).
On 23 May 2024, at 2.18 pm, the Applicant was notified of the decision to cancel the visa (Ms Stone’s affidavit, p. 188).
THE DELEGATE’S REASONS
The delegate’s decision and his reasons were set out in a Form 1111 (Ms Stone’s affidavit, pp. 166–187). The form is structured as follows.
Part A is titled “Notice of Intention to Consider Cancelling a Visa” (Ms Stone’s affidavit, p. 166). Section 116(1)(fa) is marked on the basis that “there appear[s] to be ground” for the cancellation of your visa under s. 116(1)(fa) (item 6, p. 166). As to the specifics of the ground, the form then is marked: “see Attachment A” (p. 166). Attachment A (pp. 170–171) includes the following:
(a)since “26 Feb 2019 he has been enrolled in 6 courses of study, of which 15 course of enrolments (COE) were cancelled” (p. 170);
(b)that on arrival at Melbourne Airport the Applicant had said that “from 2020 – 2021 [he had] suffered a great deal of stress” due to family illness and death (p. 170);
(c)that Melbourne Polytechnic student compliance had sent an email dated 6 April 2023 regarding “poor attendance and academic progress” and that the Applicant “had completed 12 hours of study and has been absent for 64 hours for the study period” between 2 March 2023 and 3 May 2023 (p. 170); and
(d)the Applicant had “arrears of $3400” as to fees for Harward International College and had “other outstanding payment requests … for water, car registration, toll notices, car repairs and car detailing” (p. 171).
Attachment A concludes with an observation that “based on the above information there appear to be grounds for cancelling” your visa (Ms Stone’s affidavit, p. 171).
Part B of the Form 1111 is titled : “Record of Decision whether to Cancel Visa” (Ms Stone’s affidavit, pp. 172–186).
It includes a summary of why the visa holder (the Applicant) considers the grounds for cancellation do not exist (Ms Stone’s affidavit, p. 172). It is not necessary to set out in full those reasons. I note, however, that the Applicant said as to why reasons for cancellation did not exist:
·He is a genuine student and has been starting at Harward International College. He is fully committed to complete the course and is genuinely attending classes;
·He stated in reference to the outstanding debt of $3400 to Harvard International College, he reached an agreement with the college and therefore he was allowed to defer the course. If the fee is still outstanding he is happy to pay it now. He stated it was a credit card issue (that the payment didn’t go through) and he got notification from the College.
[…]
Part B, Item 7 reads “Details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST – see Attachment B” (Ms Stone’s affidavit, p. 174).
Attachment B repeats the grounds for cancellation of the visa and which I have set out above (Ms Stone’s affidavit, pp. 176–177), repeats the Applicant’s responses two of which I have set out above from Attachment A (Ms Stone’s affidavit, pp. 177–178) and then sets out the delegate’s reasoning for cancelling the visa (Ms Stone’s affidavit, pp. 178–179) as follows:
I acknowledge the Visa holder’s response to his notice and I note that the issues raised may have had an adverse impact on his studies. Whilst the visa holder’s circumstances have been considered I assign substantially more weight towards the following:
•The visa holder has not completed any course in the last five years.
•The visa holder may be able to pay off his outstanding debts at present, however this will leave him with very little funds for day to day expenses.
•The visa holder has a recidivous (sic) pattern of going into payment plans with each of his education providers and defaulting on payments.
•It is a requirement for international students to have sufficient funds to cover their fees and cost of living – however the Emails located in the visa holder’s phone indicate that he struggles financially.
Based on the above information I am satisfied there are grounds for cancelling your TU-500 Student visa, namely s116(1)(fa)(i) Migration Act 1958 which states:
In the case of a student visa:
(i) Its holder is not, or is likely to you be, a genuine student
It is those reasons grounds for the cancellation of the visa which the Applicant seeks to impugn and to which it will be necessary to return below.
In circumstances in which the delegate was satisfied that ground for cancellation of the visa existed, the structure of the delegate’s decision then proceeds to consider issues as to the discretion to cancel the visa. The delegate:
(a)considered the reasons why the Applicant said his visa should not be cancelled (Ms Stone Affidavit, p. 180, item 8);
(b)gave “considerable weight” to the fact that the Applicant had “not completed any course in the last five years” and had a recidivist pattern of entering into payment plans with each of his education providers and “defaulting on the payments” (Ms Stone’s affidavit, p. 180, item 9);
(c)gave “some weight” to evidence that the Applicant “has not complied with visa condition 8202(2)(a) as there are gaps in study periods as reports on PRISMS” (Ms Stone’s affidavit, p. 180, item 9). I note that condition 8202(2)(a) requires the visa holder to “be enrolled in a full-time registered course”;
(d)gave a “little weight” to the fact that cancellation would result in hardship to the Applicant (Ms Stone’s affidavit, p. 180, item 9);
(e)gave a “little weight” to the Applicant’s statement that there had been medical reasons, the death of family members and COVID-19 as reasons “for not being able to focus on study” (Ms Stone’s affidavit, p. 182, item 9);
(f)gave “some weight” to the fact that there were had been no indication that the visa holder had been uncooperative with the department (Ms Stone’s affidavit, p. 182, item 9); and
(g)gave a “little weight” to the “legal consequences of a decision to cancel the visa holder’s visa” and noted the consequences of cancellation (Ms Stone’s affidavit, p. 182, item 10).
Item 11 of the Form 1111 afforded the delegate a choice of a number of options as to a “decision”. The delegate concluded by selecting the following option (Ms Stone’s affidavit, p. 182):
After weighing up all the information available to me, I am satisfied that the grounds for cancelling the visa outweigh the reasons for not cancelling. I have therefore decided to cancel the visa.
JURISDICTION
No party submitted that I did not have jurisdiction.
Although neither party addressed me on the issue, I am satisfied that I have jurisdiction. The starting point as to this court’s jurisdiction as to the constitutional writs is s. 476(1) of the Act. Although often a delegate’s decisions are not reviewable in this court because they are relevantly defined in the Act to be a “primary decision” this cancellation decision is not a primary decision because it is not reviewable under Part 5 (see: s. 338(3)(b); s. 476(2) and (4)).
ORIGINATING APPLICATION
The Applicant’s Amended Originating Application set out the following three grounds of review:
1.The delegate failed to have regard to government policy applicable to the power under section 116(1)(fa).
2.The delegate failed to make an inquiry about an important fact, which in the circumstances amounted to legal unreasonableness affecting the decision.
3.The decision is affected by legal unreasonableness, in that the applicant’s financial troubles had no rational bearing on his genuineness as a student.
Ground 1: Did the delegate make a jurisdictional error because he or she failed to take notice of an account of a government policy?
Ground 1 is that “the delegate failed to have regard to government policy applicable to the power under section 116(1)(fa)”.
The policy
There is a relevant departmental policy: “PAM-3 “General visa cancellation powers (s. 109, s. 116, s. 128, s. 134B and s. 14)” policy (Policy). The relevant part of the policy was Annexure LP-9 to Ms Perkins’ Second Affidavit (pp. 65–68).
The delegate did not refer to the Policy in the reasons.
Applicant’s submissions
The Applicant’s written submissions as to Ground 1 were as follows:
6. There is in place a government policy applicable to the power under s 116(1)(fa). It is apparent that the delegate did not have regard to that policy, which is to be inferred from the fact that it is not mentioned in the reasons for decision.
7. The policy directs that where a student has in place a deferral from a course provider, delegates should inquire with the course provider about the basis for that deferral.
8. The current state of authority in the Full Court of the Federal Court is that a failure to consider government policy on the exercise of a statutory power is a failure to consider a mandatory relevant consideration.
9. The applicant had a deferral in place from his course provider until 27 May 2024 and was returning to Australia to resume studies upon the expiry of that deferral period.
10. In failing to consider the policy, the delegate failed to consider a mandatory relevant consideration.
[Emphasis added, footnotes omitted]
Orally, the Applicant submitted that it was a mandatory consideration for the decision-maker to take notice and account of the Policy.
Because the decision-maker did not make the decision to cancel the visa “on the basis” of the Applicant deferring his studies the policy was not engaged and the inference does not arise
The juxtaposition of the Applicant’s contention and the content of the relevant part of the Policy discloses the reasons as to why the Applicant’s submissions as to Ground 1 should not be accepted. In short, the Policy provides that officers “should obtain further information” from education providers when considering cancellation “on the basis” — that is, because of — deferral of studies (or suspension from studies). The Policy, and any obligation to obtain further information, is not engaged merely by the student having “in-place” a deferral (Cf. Applicant’s submission, [7]). The decision-maker’s satisfaction that a reason exists for cancellation must be causally connected to the deferral or suspension before the relevant obligation to obtain further information under the policy is engaged.
The Applicant’s submission above (Outline, [7]) is that “the policy directs that where a student has in place a deferral from a course provider, delegates should inquire with the course provider about the basis for that deferral” overstates the position, enlarging the circumstances when information should be obtained from circumstances in which cancellation is being considered because of deferral to any circumstance in which a deferral is “in place”.
The relevant part of the Policy under the heading “[r]equesting evidence from education providers” is as follows (Second Affidavit, LP-9, p. 67):
When considering cancellation of a student’s visa on the basis that the student has deferred or suspended their studies, officers should obtain further information from the education provider on the circumstances of the deferral/suspension. This may include:
·checking PRISMS for details of the compelling or compassionate circumstances provided by the student and/or
·asking the education provider to provide copies of the evidence provided by the student in support of the deferral/suspension request.
[…]
[Emphasis added]
Because the Applicant’s deferral of his studies was not relevant to the delegate’s reasoning process as to the grounds for cancelling the visa, there was no call under the Policy on the decision-maker to inquire with the education provider about the circumstances of the Applicant’s deferral of his studies. The Policy obligation to obtain further information “on the circumstances of deferral” was not engaged. Because the obligation to obtain further information was not engaged, the inference for which the Applicant contends that the delegate did not have regard to the Policy does not arise. There was no reason for the decision-maker to mention the Policy in the reasons because it was not a decision made on the basis of the Applicant’s deferral of his studies which engaged the Policy in any relevant way.
Failure to take into account a mandatory relevant consideration
Although the matters set out above are sufficient to dispose of Ground 1, the parties also made submissions at a higher level of abstraction as to whether (assuming contrary to what I have decided above that the Policy was engaged and the correct inference is that decision-maker did not have regard to the Policy because he did not mention it in his reasons) whether a failure to have regard to the Policy would amount to jurisdictional error.
The dispute focused on two authorities: Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189, 206–208 (French and Drummond JJ) and El Ess v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 43; [2004] FCA 1038, [45] (Gray J).
The Applicant submitted that: “in failing to consider the policy, the delegate failed to consider a mandatory relevant consideration.”
In Gray (as a 1994 decision, the first in time of the two authorities) the relevant passages are in the judgment of French and Drummond JJ (FCR, 206- 208).
At 206, Their Honours said:
But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case.
As 208, Their Honours said:
The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.
[Emphasis added]
The second passage from Gray stands for a proposition that if a decision-maker purports to apply a policy the decision-maker is not bound to apply misconstruction of the terms of a policy or a misunderstanding of its purposes may “result in an improper exercise of the statutory power”.
The Applicant submitted that there was an anterior question as to the obligation to take notice and account of the policy in the first place, which proposition derives support from the earlier passage (at 206).
In 2004, ten years after the decision in Gray, in El Ess, Gray J did not refer to the decision in Gray. With reference to PAM3 which happened to be the very Policy at issue in this case in its 2004 iteration, Gray J said at [45]
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. (citations omitted) PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
[Emphasis added]
I do not consider that the two authorities (Gray and El Ess) are irreconcilable. El Ess is authority for the proposition that a failure to apply guidelines may have some significance in establishing error “but it is not of itself a jurisdictional error”. As Gray J said in El Ess, the Policy which on its own terms offers procedural guidance is in a different category from a direction pursuant to s. 499 of the Migration Act with which the statute mandates a “person or body must comply” (s. 499(2A)).
Gray is authority for the proposition that if a decision-maker purports to apply a policy which the delegate is not bound to apply but misconstrues or misapplies it, that may be reviewable error. Although it appears to me that Gray is also authority for the proposition that a decision-maker’s failure to take notice of and account of a policy may amount to jurisdictional error, context will be important and it may not. It will depend on the specific circumstances and will be fact dependent.
As the Respondent noted, El Ess has been subsequently applied at Full Court level in COT15 v Minister for Immigration And Border Protection (No. 1) (2015) FCR 148; [2015] FCAFC 190, [31]. It remains a statement of the law that failure to take account of procedural guidelines is not of itself, without more, jurisdictional error.
Ground 1 has not been made out.
Ground 2: Did the delegate make a jurisdictional error by failing to make an inquiry of the education provider?
Ground 2 is closely related to Ground 1. The Applicant argued Grounds 1 and 2 together without differentiation.
Although at the time he filed his written outline the Applicant said that he may wish to file further evidence as to Ground 2 (Outline, [12]), even in the context of a trial conducted in a short time frame, he identified at trial that he did not wish to file any further evidence.
The Respondent submitted (and I accept) that the reasons for the Applicant’s deferral of his study did not form part of the reasons that the delegate was satisfied that grounds existed to cancel the visa. In those circumstances there was no reason, or requirement of the Policy, for the delegate to make any inquiry of the education provider about the underlying circumstances of the deferral before being satisfied of the grounds for cancellation.
Ground 2 has not been made out.
Ground 3: Was the decision legally unreasonable because the Applicant’s financial troubles had no rational bearing on whether he was a genuine student?
Ground 3 is that “the decision is affected by legal unreasonableness, in that the applicant’s financial troubles had no rational bearing on his genuineness as a student” (emphasis added).
Legal principles
Non-controversially, “parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [80] (Nettle and Gordon JJ).
A leading authority as to legal unreasonableness in the context of a power to cancel a visa under s. 116 is Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3.
In Djokovic, the Full Court explained that the decision-making process under s. 116 has two elements. First, a decision-maker must be “satisfied” that grounds for cancellation exist. Under s. 116(1)(fa) the decision-maker had to be “satisfied” the visa-holder was not a genuine student. Second, once satisfied that the grounds for cancellation existed (the decision-maker had power to cancel the visa), the decision-maker had a residual discretion as to whether (or not) to cancel the visa. The state of satisfaction which is a “jurisdictional precondition” for the cancellation should be distinguished from the subsequent “exercise of discretion for which the state of satisfaction is a precondition” (Djokovic, [29]). In Djokovic, the Court explained that both elements of a cancellation decision under s. 116 were subject to an implied reasonableness requirement (the power and the discretion): “the satisfaction … must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness” (emphasis added) (Djokovic, [29]).
I also note that the “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s. 116(1)(fa) is a state of mind. “It is a state of mind which must be formed reasonably and on a correct understanding of the law” (Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51; [33].
The state of satisfaction as to whether the visa-holder is a “genuine student” “turns upon factual matters upon which reasonable minds could reasonably differ” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, [137]). Subject to legal reasonableness being the “minimum to be expected of any reasonable repository of the power” (SZVFW, [52] (Gageler J)), the decision-maker had some latitude of choice as to those factual matters which supported a finding as to whether a visa holder was a genuine student.
There are two lenses for legal unreasonableness: one focuses on the outcome and the other on the reasoning process. A reviewing court may find that a decision-maker reached a state satisfaction in a legally unreasonable way if the outcome itself bespeaks error by “observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied” (SZVFW, [83]) or if the reasoning process is affected by a “specific error” because, for example, “the decision-maker took into account in a irrelevant consideration or failed to take into account a relevant consideration” (SZVFW, [82]).
Here, it was not the Applicant’s case that the outcome (the state of satisfaction) was so overwhelmingly wrong that it must be characterised as unlawful (Djokovic, [31]). The Applicant relied on particular identified errors. Outcome or result focused unreasonableness may be put to one side.
Further, the Applicant confined his challenge to the decision-maker’s state of satisfaction that grounds for cancelling the visa existed. The Applicant sought to impugn the reasoning process that led the decision-maker to be “satisfied” that he had the power to cancel the visa (that grounds for cancellation exited), as distinct from the seeking to impugn the subsequent exercise of the discretion once the “jurisdictional precondition” was met.
In Djokovic, the Full Court held at [34]:
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction…
[Emphasis added]
The Applicant’s argument
As in Djokovic, here the Applicant sought to impugn the delegate’s decision “after the identification of jurisdictional error of a recognised specie” (Djokovic, [30]). The complaints were directed to “identifiable errors” said to be constituted by “illogical or irrational reasoning central to the reaching of the relevant state of satisfaction” (Djokovic, [30]). The Applicant submitted that the decision-maker’s reasoning process was illogical or irrational because the delegate identified the Applicant’s financial troubles as a reason for the delegate’s satisfaction that the Applicant was not a genuine student when those financial troubles had “no rational bearing” on the issue of whether he was a genuine student.
The delegate’s impugned findings as to the Applicant’s “financial troubles” were the delegate’s findings that (Ms Stone’s affidavit, pp. 178–179):
•The visa holder may be able to pay off his outstanding debts at present, however this will leave him with very little funds for day to day expenses.
•The visa holder has a recidivous (sic) pattern of going into payment plans with each of his education providers and defaulting on payments.
•It is a requirement for international students to have sufficient funds to cover their fees and cost of living – however the Emails located in the visa holder’s phone indicate that he struggles financially.
Having set out those findings (among others) the delegate concluded that “based on the above information I am satisfied that there are grounds for cancelling your student visa, namely s. 116(1)(fa)(i)…”
The Applicant described the irrational reasoning said to underpin Ground 3 in different ways. In his written Outline, the Applicant submitted that: “these findings are unintelligible vis-à-vis indicating anything about whether a person is, or is not, a genuine student”. One way in which the Applicant orally framed his submission as to this point was to say that the delegate’s findings of financial troubles did not “connect” with the conclusion that the delegate was satisfied he was not a “genuine student”. My characterisation of the Applicant’s oral submission was that there was said to be a non sequitur between the Applicant’s financial troubles and whether he was a genuine student. Expanded in another way, there was no logical connection between the premise and the conclusion: even if the premise was that the Applicant had financial troubles, the conclusion was that he was not a genuine student did not follow from that premise.
The Respondent’s argument
The Respondent’s answered this submission in two ways.
First, there was nothing irrational about referring to the Applicant’s financial struggles in the context of a finding that he was not a genuine student. The Respondent submitted that: “if he could not pay for his studies, or struggle[d] to pay for the essentials in life, it is not irrational to conclude that the Applicant is not likely to be genuinely studying.”
Second, the Respondent submitted (Respondent’s Outline, [38]):
it is important to recall that the delegate did not only rely upon the applicant’s financial struggles. The delegate also relied upon the fact that the applicant had been in Australia for five years without completing any course and had had his COE with Melbourne Polytechnic cancelled because of poor attendance.
The Respondent noted that these findings were not challenged. The “separate and independent basis for the delegate’s finding” meant there was no jurisdictional error.
Another part of the Respondent’s second answer to Ground 3 was that even if the unchallenged finding that the Applicant had been in Australia for five years without completing a course was “intertwined” with the findings about financial capacity any irrational reasoning as to the Applicant’s financial struggles was not crucial to the outcome.
Analysis
I accept both of the Respondent’s arguments.
In context it was rational for the delegate to take into account the Applicant’s financial troubles as a reason to be satisfied that he was not a genuine student
As to the first matter, a student visa holder needs to pay for his studies. Paying for the studies is part of being genuine student. Completing the coursework is necessary but not sufficient. Here, the detail of the financial troubles which was one of the reasons for the delegate’s state of satisfaction included that the Applicant reached deferred payment plans with his education providers and then defaulted on those deferred payment plans. The delegate was entitled rationally to rely on his pattern of default on paying student fees in an assessment of whether he was a genuine student.
In addition, in considering whether the history of his financial troubles was rationally relevant, the reasons should be read as a whole. It was rational for the decision-maker to rely on those financial troubles because they derived some significance from broader factors. The delegate did not reason on the basis that the Applicant’s financial troubles were enough in and of themselves to reach a state of satisfaction that he was not a genuine student. In all likelihood, the financial troubles in and of themselves could not have supported a state of satisfaction “reasonably framed” (Wei, above). The delegate was considering his history of not meeting his obligations to pay for his studies in the context of other factors namely that this Applicant had not completed a course in more than 5 years and he had a poor study record. The delegate was entitled to consider the composite picture those facts together presented. As part of the composite picture it was rational to rely upon the Applicant’s financial troubles.
I do not accept the submission that this Applicant’s history of default in terms of paying for his study and his broader financial troubles had no rational bearing on whether he was a genuine student.
Alternatively, even if any irrational reasoning constituted error, the error was not material
The Respondent sought to answer the irrationality point in another way.
This second answer might be analysed in terms of assuming that an error was made (contrary to what I have found above) – the error being that there was illogical reasoning along the way in reaching the state of satisfaction that the Applicant was not a genuine student – was the error material? Recently, in LPDT, the High Court has said: there are two questions: “has an error occurred; and, if so, was that error material” (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [9]).
Although the Respondent did not quite put it in this way, one way in which I understood the Respondent’s submission is that even if there was illogical reasoning as to the Applicant’s financial troubles (which the Minister did not concede) the error was not material because “there is identified the basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made” (LPDT, [16]).
The first basis on which it can be affirmatively concluded that the outcome would inevitably have been the same is that the Respondent submitted “there was a separate and independent basis for the delegate’s finding”. The separate and independent basis was that the Applicant had not completed a course for 5 years and that he had had a poor attendance record at least with one of his recent education providers. The Applicant did not challenge these findings.
As a matter of substance, my view is that the non-completion of any course of study for 5 years plus the poor attendance record constituted a separate, independent and rational basis for the delegate’s state of satisfaction. Although the delegate chose to express himself as relying on all matters cumulatively, a rational basis for the state satisfaction that he was not a genuine student existed independently from issues as to the Applicant’s financial troubles and the delegate identified in his reasons those other bases for a rational finding that he was not a genuine student. Because of these unchallenged rational foundations for the delegate’s decision, it cannot be said that the delegate’s state of satisfaction that the Applicant was not a genuine student lacked an “evident and intelligible basis” or that it was “unjust, arbitrary, capricious or lacking common sense” (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, [11]). Even if contrary to my finding above the delegate’s reference to the Applicant’s financial troubles had the character of an irrelevant consideration, taking into account that irrelevant consideration was not a material error.
The second part of the Respondent’s answer as to this submission grapples with the fact that the delegate expressed himself on the basis that he relied on all matters in reaching the state satisfaction he did. In that sense his reasons were “intertwined”.
The Respondent submitted that even if the delegate’s findings were “intertwined” and therefore the delegate’s unchallenged findings (as to the fact that the Applicant had not a completed course for more than 5 years and had a poor attendance record with at least one education provider) could not be characterised as a “separate and independent basis” for the delegate’s finding, the finding as to the financial troubles “was not critical to the outcome” or end result.
In CRU8 v Minister for Home Affairs (2020) 277 FCR 493; [2020] FCAFC 129 at [35], with reference to an earlier decision of Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, the Full Court said:
[Even if there is found to have been] “illogical reasoning or illogical or irrational findings ‘on the way’ to the final conclusion” His Honour observed (at [55]-[56]):
Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: (citations omitted) Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: (further citations omitted).
[Emphasis added]
I note in Djokovic the Full Court expressed itself on the basis that there would be an error if there were “illogical or irrational reasoning central to the reaching of the relevant state of satisfaction” (emphasis added) (Djokovic, [30]).
A reviewing court, ought “not reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision” (LPDT, [29]).
Here, the delegate’s state of satisfaction – that the Applicant was not a genuine student – was the product of the aggregation of a number of intermediate observations - that he had not completed a course for more than 5 years, that he had at least from one education provider a poor attendance record and that he had financial troubles which included a history of deferred payment plans with education providers on which he subsequently defaulted.
Even if (contrary to what I have found) the financial troubles had no rational bearing on whether the delegate could be reasonably satisfied that he was not a genuine student he has not persuaded me that any error was material. There is no realistic basis upon which to consider that the delegate’s decision could have been different had that error not been made.
The authorities traversed above (CRU18, Djokovic, and LPDT) appear to adopt different ways of expressing this concept. The impugned finding was “immaterial” or “not critical to” the state of satisfaction (CRU18, above). Alternatively, the impugned finding was not “central to” the state of satisfaction (Djokovic, above). Even noting his undemanding standard of materiality, the Applicant has not established that there was a realistic possibility that the outcome of the decision (the state of satisfaction) could have been different had the error not been made (LPDT, [16]) because of the other intelligible bases for reaching the state of satisfaction, namely, non-completion of any course for 5 years and a poor attendance record with at least one education provider.
Ground 3 has not been made out.
DISPOSITION
I will dismiss the application. I will order that the applicant pay the Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 11 June 2024
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