Sidhu v Minister for Immigration and Border Protection

The Tribunal's decision 9 The appellant applied to the Tribunal for review of the Delegate's decision. A hearing occurred before the Tribunal on 30 September 2015 at which the appellant was represented. He gave evidence and arguments were presented on his behalf. 10 Before the Tribunal there were two relevant issues which arose under s 116(1)(b) of the Act. They were, first, whether a ground of cancellation existed, and, second, whether the discretion ought to be exercised to cancel the appellant's visa. There is now no dispute between the parties that a ground existed for the cancellation of the visa; it being accepted that the appellant did not satisfy the condition of the visa that he continue to be enrolled in a higher degree course which satisfied the visa requirements. 11 The issue which occupied the major portion of the time before the Tribunal was whether the discretion to cancel the visa ought to have been exercised. In relation to that issue, the appellant had provided a written statement to the Department. The Tribunal set that statement out in full. Part of it appears to contain some assertions as to the appellant's state of mind about whether he was complying with his visa requirements. A particular paragraph, which appears to be pivotal to the appellants' submissions in this matter, provides: I learnt about the immigration education awareness program from immigration which has waived the condition that student who have changed their provider before 14th January from SVP to non SVP providers. I was made aware of the various factors that have to be kept in mind while on student visa. I believe that I maintained my visa condition and have not breached my 573 subclass condition. I have changed my course prior to the education aware program in January 2014 and request the respectful officer to consider the circumstances. 12 In its reasons, the Tribunal considered the totality of the evidence before it and, in particular, the evidence of the appellant as to his stated intentions and explanations for his conduct. It identified a number of inconsistencies in the appellant's evidence and especially in relation to his identified objectives in life and the courses of study which he had been undertaking. The appellant was asked by the Tribunal as to why it was that he had not enrolled in a higher degree course as required by his visa conditions. The nature of its question to the appellant and his response is set out in [15] of the Tribunal's reasons: The Tribunal asked why the applicant had not enrolled in a Higher Degree business course at the time he enrolled in the vocational courses. The applicant stated he had received a letter of offer from Stott's Colleges, but did not enrol. The applicant stated that he was told by his then agent 'CECA' that he did not need a CoE [Confirmation of Enrolment] in the higher degree at that time, he could get it later, the offer letter was adequate. The agent provided him with the offer letter and enrolments. The applicant stated he was misguided by the agent. The applicant has made no complaint about his agent. The Tribunal noted that the applicant had been quick to enrol and pay $7000 when advised he was in breach of his visa requirements in October 2014. 13 The Tribunal identified further inconsistencies in the appellant's evidence. It was concerned with the appellant's exculpatory statement that he did not enrol in the higher degree course because he was told by his migration agent that the letter of offer for the higher degree course was sufficient. This is dealt with at paragraphs [16] and [17] of the Tribunal's reasons which are as follows: 16. The Tribunal also took the applicant to an inconsistency in his evidence. The Tribunal notes that the applicant had provided a written submission to the Department. In that letter he had stated: I learnt about the immigration education awareness program from immigration which has waived the condition that student who have changed their provider before 14th January from SVP to non SVP providers. I was made aware of the various factors that have to be kept in mind while on student visa. 17. In this statement the applicant acknowledged that he was aware of the education campaign of January 2014, which discussed issues arising from course swapping from SVP to non-SVP course providers. The statement goes further, the applicant stated that 'I was made aware of the various factors that have to be kept in mind while on student visa'. Clearly this includes the need to remain enrolled in a higher degree course to meet the requirements of 573.231. The applicant had a letter of offer at that time, but did not take up the offer. The applicant clearly knew he was in breach of his visa requirements, but did not take any step at the time to rectify his situation. This is not the agent's fault, this is the activity of the applicant himself. The Tribunal considers that the applicant was aware of his visa issues, but did not take any step to rectify this situation. The applicant did not return to his higher degree enrolment until after he was notified of the visa concerns of the Department. The Tribunal does not accept that the applicant intended to return to his higher degree level, but only did so after realising his visa predicament. (Emphasis in original). 14 After considering the issue of whether there was any potential hardship if the cancellation of the visa was not overturned and other issues concerning inconsistencies in the evidence the Tribunal stated its conclusions in the following terms: The Tribunal has considered all these aspects of the applicant's circumstances. He left the higher degree courses that would appear to have been appropriate for his stated aim of running a business, and enrolled in vocational courses. He demonstrated no intention of returning to the higher degree courses until after he was advised of his visa breach, which causes significant doubt as to the intention of enrolling in such a course. Further, the applicant knew he was in breach of his visa by his previous written statement in January 2014, yet did not do anything to rectify this situation. He blamed his agent, whilst acknowledging that he was aware that he was told of what he needed to keep in mind while on the student visa. This included the need to meet the enrolment requirements of the 573 visa. The Tribunal does not accept that the agent is to blame for the applicant's predicament. 15 The Tribunal concluded that the appellant's student visa ought to be cancelled.

Decision of the court below 16 By an application made in the Federal Circuit Court of Australia on 25 August 2016, the appellant sought relief by way of the issue of Constitutional writs directed to the Tribunal. Although the application as originally filed did not appear to raise any sustainable grounds, by the time that the matter was heard an amendment had introduced the sole ground relied upon which was: The decision of the Tribunal is effected (sic) by Jurisdictional Error because the Tribunal constructively failed to conduct a review, in that the Tribunal misunderstood the applicant's statement to the Department in 2014 and his evidence of being the victim of poor advice from his one-time migration agent, or being misled by his one-time migration agent. 17 The main submission by the appellant before the Federal Circuit Court (as it is before this Court) is that found at paragraph [23] of the written submissions before the Federal Circuit Court namely that: 23. It follows that the Tribunal constructively disabled itself from considering the argument and evidence that was actually advanced - that the applicant was poorly advised, reducing his level of culpability in the breach, and tending toward a favourable exercise of the discretion (noting that he was now enrolled in an appropriate course and intended [sic] to pursue with that study). 18 The essence of the appellant's complaint before the court below was that the Tribunal misunderstood his evidence relating to his knowledge of the visa requirements and, in particular, the sentence in his statement that, "I was made aware of the various factors that have to be kept in mind while on a student visa". It was said that the Tribunal misconstrued that comment because it did not take into account the following sentence which read, "I believe that I have maintained my visa condition and have not breached my 573 subclass condition". It was submitted that this was a qualification of the first statement which had the effect that the first statement did not have the meaning which it appeared to have on its face. 19 The appellant submitted that the Tribunal's failure to consider the qualifying statement amounted to a jurisdictional error within the meaning of that expression as it was used in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. The proposition appears to be that the Tribunal misconstrued or misunderstood the appellant's principle contention that supported the exercise of the discretion in his favour and for that reason the discretion miscarried. 20 That argument was rejected by the learned Federal Circuit Court judge who held that the Tribunal understood the appellant's contention that the breach of his visa conditions arose as a consequence of poor advice given to him by his immigration agent (at [32]). In particular, it was aware that the appellant's argument was that he had been informed that a letter of offer of enrolment was sufficient compliance with his visa conditions and that he did not need to have any confirmation of enrolment in the higher degree course. The learned judge thereupon identified the variety of factors taken into account by the Tribunal which were directed to its consideration of the appellant's principal argument ([39]-[40]). Her Honour also pointed out the manner in which the Tribunal assessed the question and the basis upon which it exercised its discretion. 21 After careful analysis the learned judge held that the Tribunal did not misunderstand or misconstrue the claim advanced by the appellant ([46]-[47]), and dismissed the application for judicial review.

The appellant's argument in this Court 22 Before this Court, the appellant's main argument is a slightly more refined version of the argument that was agitated in the Court below. It is that in the exercise of the Tribunal's discretion of whether to cancel the appellant's visa, the Tribunal misconstrued the appellant's evidence by interpreting his written statement as a concession that he was aware that he was in breach of the conditions of his visa. The appellant submitted that this finding resulted in the Tribunal failing to consider his claim that the Tribunal should have exercised its discretion not to cancel his visa favourably towards him because he was unaware of the conditions of his visa as a result of being misled by his migration agent. 23 It should be noted that the sole ground of appeal in the notice of appeal to this Court was the Tribunal's failure to consider the appellant's claim. However, the appellant asserted in written submissions that "it was not open on the evidence for the Tribunal to identify any inconsistency in the appellant's evidence". Properly understood, this submission alludes to a different type of jurisdictional error, that the Tribunal's decision was illogical or irrational or, perhaps, otherwise legally unreasonable. The Minister's submissions identified and responded to this issue, and both the appellant and respondent devoted significant argument to it in oral submissions. 24 While heeding to the caution of the High Court not to approach the analysis of jurisdictional error by resorting to an "inflexible taxonomy" (Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 574) it is important to distinguish between the two grounds, as they both call for a different enquiry into the nature of the error said to have been committed by the Tribunal. Accordingly, they are considered separately below.

Did the Tribunal consider the Appellant's claim? 25 It must be kept steadily in mind that there is an important distinction between an error of fact within jurisdiction which is not reviewable on appeal, and an error of fact which will amount to a jurisdictional error (Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [52]). In ascertaining whether the Tribunal's decision fell into jurisdictional error, it is not for the Court to re-examine the merits of the exercise of the discretion to cancel the appellant's visa. That the Parliament has intended to entrust the merits of the decision to the province of the Tribunal is clear from section 474 of the Act (SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [22]). In Attorney-General (NSW) v Quin (1990) 170 CLR 1 Brennan J commented at 36: The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 26 The authorities are patently clear that an appellant wishing to disturb a Tribunal's decision must identify something more than a merely erroneous finding of fact. The proper enquiry for this Court in reviewing the decision of the Tribunal, is whether the Tribunal has failed to perform the statutory task imposed upon it by the relevant provisions of the Act (Minister for Immigration and Border Protection v MZYTS and Another (2013) 230 FCR 431 at 442, [31]). 27 As the Tribunal correctly identified, section 116 of the Act does not impose upon the decision made any mandatory considerations to be taken into account when exercising its discretion to cancel the appellant's visa. The Act nevertheless requires that the Tribunal consider any "substantial and clearly articulated argument relying upon established facts" (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]). A failure to do so will amount to a constructive failure to exercise jurisdiction, which is a constructive failure to carry out the review required by the Act (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17, [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]). As well as failing to consider a claim altogether, if the Tribunal makes an error of fact in "misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error" (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20, [63]). 28 In an attempt to draw a bright line between impermissible merits review and legitimate judicial review, a line of authority emerged identifying a distinction between an error of fact that has resulted in the claim itself being misunderstood or misconstrued, and an error that can be simply limited to a single item of evidence. As observed by the Full Court of this Court in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, their Honours' North and Lander JJ expressed In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [27] - [28]: [27] Of course, if the RRT failed to consider an element of an applicant's claim, that would amount to jurisdictional error because Division IV of Part 7 of the Act requires a review of the whole of the applicant's claims. In that case, the RRT would have failed to discharge its "imperative duties": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. [28] However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294. 29 However, the distinction between a mere misconstruction of evidence on the one hand, and a misconstruction of a claim on the other was described by Robertson J in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) as a useful tool of analysis, but subordinate to the fundamental question of "the importance of the material to the exercise of the tribunal's function and thus the seriousness of any error" (at [111]). His Honour considered that SZNPG "is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence" (at [114]). His Honour's analysis was expressly endorsed by the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70], and received further support in the decision of Minister for Immigration and Border Protection v SZSRS 309 ALR 67. In SZSRS the Full Court comprising of Katzmann, Griffiths, and Wigney JJ commented on a submission by the Minister that a failure to consider evidence will only amount to a jurisdictional error if it means that the Tribunal ignored a claim (at [54]): …His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal's functions. We respectfully agree with Robertson J's analysis. 30 Turning to the question of whether the Tribunal failed to perform its statutory function in considering the appellant's claim. The appellant quite properly conceded that the Tribunal was seized of the appellant's claim, in the sense that the Tribunal's reasons clearly reflect a "consciousness and consideration of the submissions" (Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431). Rather, the Appellant submits that the purportedly erroneous finding of the Tribunal, that the appellant was aware that he was in breach of his visa requirements, resulted in the appellant's claim being disposed of on "the wrong footing" and that the Tribunal therefore constructively failed to deal with the claim. 31 There is a fundamental problem with the Appellant's submission as it was argued before this Court in that it conflates a submission that the Tribunal had failed to consider whether the appellant knew that he was in breach of his visa requirements, with a submission that the Tribunal should have concluded that the appellant did not know that he was in breach of his visa requirements. This is precisely the kind of submission that the High Court in Abebe v The Commonwealth (1999) 197 CLR 510 described as "self‑evidently a contention that depends upon the Court reviewing the merits of the Tribunal's decision rather than the process by which it arrived at its conclusion". Whether or not the appellant knew that he was in breach of his visa conditions was a finding of fact which was within the Tribunal's jurisdiction to make when considering the appellant's claim that he was misled by his migration agent as to compliance with his visa conditions. Provided that the Tribunal fulfilled its statutory function by properly considering the appellant's claims, there is no warrant to disturb the Tribunal's findings of fact that are within its jurisdiction to make. The appellant cannot attempt to expand the scope of permissible judicial review by disguising a review of a Tribunal's finding of fact within jurisdiction, as jurisdictional error in the form of a constructive failure to consider a claim by misconstruing a piece of evidence. The appellant must demonstrate that the purported error of fact has resulted in the Tribunal not considering the appellant's claim, rather than the Tribunal making an error of fact in considering the appellant's claim. 32 It is important to keep steadily in mind the fundamental question as identified by Robertson J in SZRKT: "The fundamental question must be the importance of the material to the exercise of the tribunal's function and thus the seriousness of any error." (Emphasis added). 33 As is made plain from the above, the "seriousness of the error" does not refer to the gravity of the factual finding to the ultimate outcome of the review. If that was what his Honour meant by the "seriousness of the error", any important finding on the merits of the case would be subject to judicial review. It is clear that whether the error in construing evidence is "serious" is to be measured by whether the Tribunal has departed from its statutory task, in this context, by not considering the substantial claims that the appellant has clearly articulated to the Tribunal. 34 Contrary to the appellant's submissions, the Tribunal did fulfil its statutory task and considered all of the clearly articulated claims that the appellant placed before it. The Tribunal considered the appellant's claim that he was misled by his migration agent, and therefore was not subjectively aware that he was in breach of his visa conditions. In considering whether the appellant was misled by his agent, the Tribunal pointed out that the appellant did not complain about his agent [at 15] and found that he gave inconsistent evidence. Even if the appellant's submission that the Tribunal misconstrued his evidence is accepted, the purported error did not result in the Tribunal disposing of the appellant's claim on "a different footing" tantamount to constructively failing to consider his claim. The finding that the appellant gave inconsistent evidence was made in the context of considering the question of whether the appellant was misled by his agent. The purported error was not jurisdictional because it does not betray a misapprehension of the nature of the claim which the Tribunal had been invited to determine and therefore a miscarriage of the task the Tribunal was required to perform (ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 at [33]-[34]).

Was the finding illogical, irrational or otherwise legally unreasonable? 35 As mentioned above, this ground of appeal was not set out in the Notice of Appeal. However, as it was raised variously by both parties in written submissions, and in oral argument, it is proper that this Court deal with it. The parties did not specifically refer to words "illogicality, irrationality or otherwise legally unreasonable", however it is clear enough that the issue which the parties wished to agitate fell within these principles. 36 The parties were in agreement that the relevant test to be applied was that stated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]: ..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. 37 The threshold for establishing that the Tribunal's reasoning is illogical or irrational is particularly high. The authorities clearly establish that the Tribunal's reasoning must demonstrate "extreme" illogicality or irrationality, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal" (SZRKT at [148] cited with approval in ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [47]). The extreme illogicality or irrationality that the Appellant is required to establish does not necessarily have to be the final conclusion that the Tribunal reached, but can extend to illogicality or irrationality in the fact finding process which leads to that end result. Ultimately, the overarching question is whether the decision was affected by jurisdictional error. 38 In all cases the Tribunal's reasons must be read as a whole and not be construed "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]). It is not a permissible course in establishing judicial review to draw conclusions as to the Tribunal's reasoning by selectively focusing on certain extracted paragraphs of the reasons and, in the process, divorcing those paragraphs from the context of the entire decision in which they appear. 39 The purported error complained of by the appellant falls short of establishing the 'extreme' illogicality or irrationality required by the authorities. When the reasons of the Tribunal are read as a whole, it is tolerably clear that the 'inconsistency' that the Tribunal refers to is intended to refer to an inconsistency in the appellant's entire statement, rather than an inconsistency in the paragraph extracted by the appellant. Earlier in his statement the appellant states "At the time of changing my provider and course, I was not much aware about the 573 SVP condition." When that statement is read together with the following statement: I learnt about the immigration education awareness program from immigration which has waived the condition that student who have changed their providers before 14 January from SVP to non-SVP providers. it is a reasonably open construction of the appellant's evidence that the appellant was not aware of the conditions on his visa at the point in time in which he changed his provider, but at a later point in time, after the Immigration Department's "education awareness program", he became aware of the conditions with which he was required comply. This would appear to be a perfectly plausible reading of the appellant's statement when it is read in its entirety, and is patently inconsistent with his claim that he was never aware that he was in breach because he was misled by his migration agent. 40 The Minister submits that this construction of the appellant's evidence is further supported by the use of the word "waived". That is a submission that should be accepted. At minimum, the word "waived" implies that the appellant must have had at least some consciousness of the requirements of his visa, but for reasons that are unexplained, he erroneously thought that he was excused from complying with those requirements. More fundamentally, however, the attempt by the appellant to attribute fault to the "immigration education awareness program" for misleading him that the conditions of his visa have been "waived", is in tension with the appellant's attempt to attribute fault to his migration agent for misleading him. It is difficult to see how the appellant could simultaneously believe both what his migration agent apparently told him, that he was not required to be enrolled in an SVP course and that it was sufficient merely to have a letter of enrolment, and what the "immigration education awareness program" had stated, that because he had changed from an SVP to a non SVP provider before 14 January the condition had been "waived". 41 A conclusion that the Tribunal's construction of the appellant's evidence was "open" (that is neither irrational nor illogical) is further strengthened by the fact that the Tribunal afforded the appellant the opportunity to be heard on the apparent inconsistency when they took him to it during the hearing. The appellant had an opportunity to clarify to the Tribunal what he meant by that statement, in particular, if it was anything other than that he became aware of the conditions of his visa. The transcript of the Tribunal hearing was not placed before the Court, and counsel for the appellant submitted that it was unnecessary to advance the Appellant's case to do so. 42 In the circumstances, it was open to the Tribunal to conclude that the appellant gave inconsistent evidence and to conclude that he was aware that he was in breach of the conditions of his visa.

Conclusion 43 The arguments advanced on behalf of the appellant must be rejected. The orders I would make are as follows:

1. The appeal is dismissed.
2. The appellant pays the respondent's costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.