Material Issue Must Be “Fundamental”, “Important” or “Overwhelming” Such That a Failure to Consider Them by the Tribunal Would Constitute a Jurisdictional Error!

 

Karki v Minister for Immigration & Anor[1] concerns a cancellation of a Student visa under s116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 (where the holder must be enrolled in a full-time registered course).   

The applicant made an application for a judicial review of the Tribunal’s decision affirming the delegate’s decision to cancel the Student Visa.

THE APPLICANT’S PLEADINGS

The Applicant claimed that he did not enrol in any registered course since 25 November 2014 due to extenuating and compassionate circumstances as a result of consequences to his family in Nepal due to the Nepal earthquake in 25 April 2015. His family suffered significant economic loss due to damage caused to his house in Nepal including business loss as well.

Suffered extreme distress, anxiety and distress…

TRIBUNAL’S DECISION

·       The Tribunal noted that the applicant had withdrawn from his studies due to personal stress arising from the earthquake in Nepal and that he could not afford to study in Australia;

·       However, the Tribunal also stressed that the applicant’s psychological condition did not prevent him from working as a cleaner for 18 months;

·       It also did not prevent him from entering into a relationship and marrying in Australia during the course of the period; and

·       It is also the case that the applicant did not seek a deferment or otherwise seek to explain to the Department why he could not continue to study at that time.

GROUNDS OF ATTACK ON TRIBUNAL’S DECISION

The Applicant relied upon the following grounds:

·       Ground 1: The Tribunal made jurisdictional error by adopting an erroneous view of the facts that affected the exercise of its discretion under s 116 of the Act;

o   The Tribunal based its decision upon the erroneous assumption of the fact that the applicant had not taken any steps in relation to enrolment until 16 January 2016, however the applicant had in fact applied and had been accepted for admission to another college.

·       Ground 2: The Tribunal made jurisdictional error by making a decision which was unreasonable (referring to Ground 1 above); and

·       Ground 3: The Tribunal failed to give regard to relevant obligations of Australia which might be breached if the student visa was cancelled.

FEDERAL CIRCUIT COURT’S CONSIDERATION

In consideration of Ground 1, the FCCA held that the Tribunal was merely providing references to a summary of claims made by the applicant in his written submission. Therefore, the Tribunal did not make any actual finding of fact on these issues.

·       Additionally, the onus was on the applicant to tender any transcript if the Tribunal hearing if reliance was to be placed on anything which transpired from there. However, such transcript was not tendered.

·       Further, even if the Tribunal did make an error of fact, it does not mean that it committed jurisdictional error: MZWBW v Minister for Immigration [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ.

·       Such issue bought by the Applicant is not material which could be regarded as so “fundamental”, “important” or “overwhelming” such that a failure to consider them by the Tribunal would constitute a jurisdictional error: see Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60] per Tracey J. They were not of pivotal or fundamental importance to the Applicant’s claims.

Accordingly, Ground 2 also failed. The FCCA held that even if the Tribunal did in fact make a factual error in relation to the timing of the offer of employment at the said college, that would not establish legal unreasonableness:

Mistakes in the fact-finding process (if there were a mistake in the present case) are not the equivalent of unreasonableness in the so-called Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) in the decision-making process.

In consideration of Ground 3, the FCCA held that the applicant never identified any international obligation to which the Tribunal ought to have had regard and which might be breached if the Student visa was cancelled. No such claim was made in the Written Submission. As such, Ground 3 also failed to establish jurisdictional error.

 

KEY TAKEAWAYS

 

Error of fact does not simply mean jurisdiction error has been made, so long as the error does not mean that the Tribunal has not considered the applicant’s claim.

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The issue/ground bought forward must be of a ‘fundamental’ importance to the applicant’s claims such that a failure to regard them by the Tribunal would constitute a jurisdictional error.

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In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

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GETTING ASSISTANCE

 

As you are now aware, juridical review is not so simple, in fact it is a very complex area of immigration law.  Our lawyers are highly trained in dealing with judicial review and have had many successful outcomes for the client. If you would like to learn more, simply call one of our lawyers at Agape Henry Crux on (02)-7200 2700 or email us to book in a time at info@ahclawyers.com