FEDERAL COURT OF AUSTRALIA

DAK16 v Minister for Immigration and Border Protection [2019] FCA 683

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 26 July 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister dated 7 July 2015 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation DAK16 v Minister for Immigration & Anor [2018] FCCA 2021.

Background

2    The appellant is a citizen of Pakistan. He arrived in Australia in September 2014 as the holder of a Student (Class TU) (Subclass 573) visa.

3    On 30 December 2014, the appellant applied for the protection visa. The appellant claimed to fear harm from the Pakistani authorities because of his membership of the Jammu Kashmir Liberation Front (JKLF), a political party whose aim is the establishment of a Jammu and Kashmir state independent of Pakistan and India, and the Jammu Kashmir National Students Federation (JKNSF). The appellant claimed that, because of his involvement in those organisations, he was detained on two occasions by Pakistani authorities, and he fears that he will be harmed again because of his political opinion if he returns to Pakistan.

4    On 7 July 2015, the delegate refused the appellant’s protection visa application. The appellant applied to the Tribunal for review of the delegate’s decision on 5 August 2015.

5    On 12 September 2016, the Tribunal affirmed the decision of the delegate.

Tribunal’s decision

6    The Tribunal accepted that the appellant: was a member of the JKNSF from around 2007 until late 2013; joined the JKLF in late 2013 (at [24]); and worked as a “low level administrative officer for the JKLF”, in a role which involved passing instructions from more senior party members to local workers and supporters who then went out into the community to undertake the JKLF’s work to peacefully pursue the cause of the Kashmir people (at [32]).

7    After reviewing relevant country information in considerable detail, the Tribunal stated at [45] that it was not satisfied on the evidence before it that activists for the JKLF are harmed in Pakistan for reason of their membership or affiliation with the JKLF, without something more. Rather, the Tribunal was satisfied that “the JKLF continues to have a substantially unimpeded and active voice in Pakistan”, “that positions contrary to the views of both the Pakistan and Indian authorities are tolerated in Pakistan” (at [46]), and “that JKF members or activists have been able to meet and debate their concerns openly in Pakistan” (at [47]).

8    The Tribunal then considered the appellant’s claim that he was detained by authorities. Regarding the first incident, the appellant had claimed that he was detained by authorities whilst visiting his home region around July 2013 during a study break. The appellant said that he was detained for around 5 days, following which he was able to return to the city where he was completing his studies. The Tribunal accepted that the appellant was “fairly briefly detained and questioned” in July 2013, and that upon his release he was allowed to return to the city where he was studying at the time (at [53]). The Tribunal accepted that following his detention he was known to the Pakistani authorities in his home region. The Tribunal was not satisfied, however, that his limited detention in July 2013 “would cause him to be of any ongoing adverse interest to the Pakistan authorities” (at [57]).

9    The Tribunal also outlined the appellant’s account of his subsequent detention in February 2014, including that he was detained for 10 days, tortured with sleep deprivation, prevented for using the toilet when he needed, regularly questioned, and had food and water withheld. He said the reason for his detention was because he worked for the JKLF.

10    The Tribunal was not satisfied that the appellant “was of sufficient interest to the Pakistan authorities (or anyone else), such that he would be detained for 10 days, or at all” (at [62]). However, because the Tribunal had accepted that the appellant was known to the local Pakistani authorities from his July 2013 detention, the Tribunal applied the “what if I am wrong?” test. Applying that test, the Tribunal found that the appellant did come to the adverse attention of the local Pakistani authorities in February 2014 and “was detained for a limited period of time”, during which time he was questioned and subject to some mistreatment (at [63]). On the basis of these findings, the Tribunal accepted that the appellant had a real chance of suffering serious harm for reason of his political opinion should he return to his home region in Pakistan.

11    The Tribunal proceeded to consider whether the appellant could safely and reasonably relocate within Pakistan. The Tribunal stated that it was “satisfied that if the [appellant] was of any ongoing adverse interest, he would not have been able to live in [his home region] for the next more than 7 months [sic], without being harmed, harassed or even questioned” (at [66]). In those circumstances, the Tribunal was satisfied that the appellant did not have a real chance of suffering any harm because of his two periods of detention, should he relocate within Pakistan. The Tribunal considered, moreover, that the appellant could maintain his activities for the JKLF if he wished to do so, in another area of Pakistan, without facing a real chance of suffering serious harm (at [66] and [74]). Having regard to the appellant’s personal circumstances (including his spoken languages and education), and certain country information, the Tribunal was satisfied that the appellant could safely and reasonable relocate within Pakistan (at [81]).

12    Although it was not specifically raised by the appellant, the Tribunal also considered whether he would be harmed on return to Pakistan as a failed asylum seeker from a Western country. The Tribunal was not satisfied that he faced a real chance of harm on that basis (at [85]).

13    For the reasons outlined above, the Tribunal did not accept that the appellant would face a real chance of suffering serious harm if he relocated within in Pakistan. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore found that the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal also separately considered whether Australia’s complementary protection obligations were engaged. For the same reasons, the Tribunal was not satisfied that there was a real risk that the appellant would suffer significant harm as defined in s 36(2A) of the Migration Act, should he relocate within Pakistan. The Tribunal concluded that he did not satisfy the complementary protection criterion in s 36(2)(aa).

Federal Circuit Court proceeding

14    By an application filed on 14 October 2016, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The application contained nine paragraphs. An affidavit in support of his application repeated those nine paragraphs and contained a further 11 paragraphs.

15    The primary judge appears to have treated the 20 paragraphs in the appellant’s affidavit as his grounds of review. Of those 20 paragraphs, the first and last did not raise any complaint. These paragraphs stated that the appellant was self-represented, requested the Court make a just and fair decision, and requested that the appellant’s application be allowed and the decision under review be set-aside. The primary judge grouped the remaining 18 paragraphs as follows at [4]:

•    Complaints about the delegate’s decision: grounds 2, 3, 4 and 6;

•    Complaints about factual findings made by the Tribunal: grounds 2, 3, 6, 7, 8, 11-14, 16;

•    Complaints that the Tribunal failed to follow the proper procedure or accord procedural fairness: grounds 4, 5 and 8;

•    Complaints that the Tribunal failed to consider all of the Applicant’s claims and evidence: grounds 6, 9, 10, 11, 13 15 and 17; and

•    Grounds raising new information not before the Tribunal: grounds 7, 18-19.

16    The appellant appeared in person before the primary judge for the hearing of the application on 13 July 2018.

17    On 26 July 2018, the primary judge dismissed the appellant’s application. In summary, the primary judge held:

    In relation to grounds 2, 3 and 6, that the Federal Circuit Court lacked jurisdiction to review the delegate’s decision (at [10]);

    In relation to grounds 2, 7, 8, 11, 12, 13 and 16, that these grounds invited the Federal Circuit Court to engage in impermissible merits review (at [11]);

    In relation to grounds 3, 11, 13 and 14, that the Tribunal was entitled to rely on independent country information and afford weight to that information as it saw fit (at [12]);

    In relation to grounds 4, 5 and 8, that there was no evidence that the Tribunal failed to afford procedural fairness to the appellant (at [13]);

    In relation to grounds 6, 9, 10, 11, 13 and 17, that the Tribunal considered all the claims and evidence put to it by the appellant (at [14]); and

    In relation to grounds 18 and 19, that there was no basis to consider the new evidence put to the Federal Circuit Court (at [15]).

18    The primary judge also considered a submission made by the Minister that, in making relocation findings as part of its assessment of whether the appellant met the definition of “refugee” under the Migration Act, the Tribunal had unnecessarily had regard to the reasonableness of relocation and thereby applied the wrong legal test. Following the introduction of s 5J(1)(c) into the Migration Act, whether relocation is reasonable need only be considered in relation to the complementary protection criterion. The Minister had submitted, however, that this error had no material effect on the outcome, alternatively, that the Court should exercise its discretion to refuse relief. The primary judge accepted that the Tribunal’s error involved applying a test that was more favourable to the appellant than the correct test and, accordingly, there was no material effect on the appellant’s prospects of obtaining a visa. His Honour held that the error was not jurisdictional in nature.

Proceeding in this Court

19    By a notice of appeal filed on 9 August 2018, the appellant raises 8 grounds of appeal. The complaints raised by the grounds are not entirely clear. As the Court understands it, however, the substance of the grounds may be summarised as follows:

    Ground 1: the primary judge failed to find that “the legal and factual circumstances” raised by the appellant entitled him to the grant of a protection visa;

    Ground 2: the Tribunal failed to consider that the appellant is a person who deserves a protection visa under the Migration Act and legislation made thereunder from time to time, and the Tribunal and the delegate “failed to appreciate the law and facts and thereby … violated the principles of law and natural justice”;

    Ground 3: The respondents (which I understand to be a reference to the Tribunal and the Minister’s delegate) failed to address the issues raised by grounds 2, 3, 4 and 16, and did not take into account the documentary evidence and verbal evidence provided by the appellant;

    Ground 4: despite accepting that the appellant suffered persecution at the hands of the authorities in Pakistan because of his political opinion, the Tribunal and the delegate did not give importance to the appellant’s claims and evidence; they were heavily dependent on country information issued by Pakistani authorities; and they failed to have regard to the independent information circulated by world newspapers and the reports of the UNHCR;

    Ground 5: the Tribunal failed to address grounds 2, 3, 6, 7, 8, 11-14 and 16 and grounds 6 [sic], 9, 10, 11, 12, 15 and 17;

    Ground 6: because the Tribunal accepted the appellant’s claims, in accordance with the law and facts and principles of natural justice, the appellant was entitled to complementary protection;

    Ground 7: the appellant fears for his life and would be in grave danger if sent back to Pakistan; and

    Ground 8: the appellant is self-represented and has no access to a lawyer.

20    The appellant filed a document entitled “grounds of submissions” on 23 August 2018, which essentially reiterated some of his grounds of appeal. The appellant did not file any further written submissions.

21    The appellant appeared in person at the hearing of this appeal and with the aid of an interpreter made submissions in support of his appeal.

22    The Minister, represented by counsel, relied on written submissions filed on 24 January 2019 and addressed the appellant’s submission concerning the current situation.

Consideration

Grounds 1 and 2

23    The Minister submitted that grounds 1 and 2 do no more than broadly describe the procedural history of the matter and the position of the appellant. The Minister contended that these grounds do not allege error in the decision of the Federal Circuit Court and, therefore, do not need to be addressed. That does not seem to me to be a fair characterisation of those grounds. For the reasons I am about to state, however, the grounds do not reveal any relevant jurisdictional error.

24    As already indicated, by ground 1 the appellant alleged that the primary judge failed to find that the legal and factual circumstances raised by the appellant meant that he was entitled to a protection visa. As I explained to the appellant, it appears that he has misunderstood the function of the primary judge on judicial review. The primary judge in this case was unable to determine the appellant’s visa application, by applying s 36(2) of the Migration Act to the appellant’s circumstances as his Honour found them. It was not open to his Honour to make his own independent assessment of the appellant’s claims and evidence. The task of the primary judge was to determine whether or not the Tribunal’s decision involved jurisdictional error.

25    Ground 2 alleges that the Tribunal failed to find that the appellant was entitled to a protection visa under the Migration Act and related legislation, and failed to appreciate the law and facts, thereby violating the law and natural justice. The Tribunal set out the relevant law correctly with respect to the refugee criterion in s 36(2)(a) and the complementary protection criterion in s 36(2)(aa) of the Migration Act. It made its findings on the basis of the law; and there is nothing in its reasons to indicate that these findings were not reasonably open to it on the evidence before it.

26    At the hearing, the appellant submitted that there was no accurate public reporting in Pakistan of the situation in Kashmir, particularly Pakistan-occupied Kashmir. He said that people who supported the movement, of which the appellant was part, were liable to be detained and were not safe.

27    It was, however, a matter for the Tribunal to determine the country information that it considered most reliable and to determine the weight to be given to it: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463 at [40]. Bearing this in mind, the appellant has not identified any relevant jurisdictional error in the Tribunal’s decision, and has not shown any basis on which it might be said that the primary judge erred in finding that there was none. There is also no discernible basis for the appellant’s claim that the Tribunal violated natural justice in some unidentified way.

Ground 3

28    Ground 3 states that the “respondents” failed to address the issues raised by grounds 2, 3, 4 and 16 of the appellant’s application before the Federal Circuit Court. The appellant’s grounds of review in the Federal Circuit Court were not, of course, the subject of the decisions of the Tribunal or of the delegate.

29    To the extent that the appellant intended this ground to allege that the primary judge erred in dismissing grounds 2, 3, 4 and 16, it must be rejected. While the primary judge’s decision is cursory, his Honour clearly considered grounds 2, 3, 4 and 16 at [10], [11], [12] and [13] of his reasons, and there is no discernible jurisdictional error in his decision in relation to those grounds.

30    Ground 3 also alleges that the respondents did not take into account the appellant’s documentary and verbal evidence. The Tribunal’s reasons for decision were detailed, and it is not apparent that the Tribunal failed to consider any integer of the appellant’s claims or any aspect of his evidence.

Ground 4

31    By ground 4, the appellant appears to criticise the Tribunal for failing adequately to consider the appellant’s claims and evidence, and for relying on country information issued by Pakistani authorities rather than independent information circulated by world newspapers and reports of the UNHCR.

32    The appellant said at the hearing that his submissions in respect of ground 2 also applied to ground 4.

33    As already stated, the Tribunal’s reasons for decision were detailed and it is not apparent that the Tribunal failed to consider any integer of the appellant’s claims or any aspect of his evidence. Moreover, as indicated above, it was a matter for the Tribunal to determine the country information that it considered most cogent and the weight to give it.

Ground 5

34    By ground 5 the appellant appears to criticise the Tribunal for failing to address grounds 2, 3, 6, 7, 8, 11-14 and 16 and grounds 6, 9, 10, 11, 12, 15 and 17. As noted above in relation to ground 3 of the appeal, the grounds of review in the Federal Circuit Court were not the subject of the Tribunal’s decision.

35    As already stated in relation to ground 3, the primary judge addressed grounds 2, 3, 4 and 16 and there is no discernible error in the way that he did. The primary judge also clearly addressed grounds 6, 7, 8, 9, 10, 11, 12, 13, 14 and 17 at [10]-[15] of his reasons, and there is no discernible jurisdictional error in his decision in relation to those grounds.

36    The primary judge did not, however, expressly consider ground 15 of the appellant’s application to the Federal Circuit Court. That ground was in the following terms:

The applicant has attached almost all the evidence with the file, the applicant has explained his activities as given in Para 29, not all but some of them are mentioned. In Para 34 the applicant stated that 42.000 kilometre of our area of AJK was given to the PRC. The applicant gave a detail ion that paragraph of killings of peoples .Pak-China Economic Corridor is situated in Gilgit and Baltistan namely as northern territory the whole world knows the JKLF stand on this G-B CLAIM, WE CLAIM THAT THIS IS THE part of Jammu and Kashmir. This is another reason that Pakistani Establishment has no mercy on the JKLF activitists. The recent uprising in Kashmir is there any name of JKLF, WE ARE PEACEFUL party, some happenings have mentioned by the applicant.

37    As indicated above, in summarising the appellant’s grounds of review at [4], the primary judge grouped ground 15 together with grounds 6, 9, 10, 11, 13 and 17 as “complaints that the Tribunal failed to consider all of the [appellant’s] claims and evidence”.

38    Unlike each of the other grounds of review, the primary judge did not subsequently refer to ground 15 in his Honour’s reasons. Significantly though, in relation to the other grounds of review that the primary judge grouped with ground 15, the primary judge held at [14]:

In relation to grounds 6, 9, 10, 11, 13 and 17, I find that the Tribunal considered all evidence and claims of the Applicant. The Tribunal’s record of decision is detailed and there is no indication that it did not consider all claims of the Applicant: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 [55].

(Emphasis added)

39    His Honour’s reason for rejecting each of those grounds applies equally to ground 15 and, having clearly group ground 15 together with those grounds at [4] of his reasons, it seems very likely that his failure to refer to ground 15 at [14] was simply a typographical omission. In any event, it is clear that, even if the primary judge overlooked ground 15 at this point, this would have had no material effect on the outcome of the appellant’s judicial review application, with the consequence that relief should be refused.

Ground 6

40    Ground 6, in essence, criticises the Tribunal’s finding that the appellant did not satisfy the complementary protection criterion. The appellant reiterated his submissions in respect of ground 2, saying they would also apply to the complementary protection criterion. He also made a strong submissions about the current situation in Kashmir, which is discussed below.

41    It seems to me, however, that the Tribunal correctly set out the relevant law with respect to the complementary protection criterion in s 36(2)(aa) of the Migration Act, and there is nothing in its reasons to indicate that its findings were not reasonably open to it on the evidence before it. The appellant has not identified any relevant jurisdictional error in this aspect of the Tribunal’s decision.

Ground 7

42    By ground 7 the appellant asserts that he fears for his life and would be in grave danger if he were sent back to Pakistan. This is not a matter for this Court to consider on appeal, just as it was not a matter for the primary judge. The appellant has apparently failed to appreciate that it is not open to this Court to determine whether or not he should be granted the protection visa he seeks. The Court’s task is to determine whether the judgment of the Federal Circuit Court involved appellable error, which in a case such as this required consideration of whether the primary judge erred in finding that there was no discernible jurisdictional error in the decision of the Tribunal.

Ground 8

43    Ground 8 stated that the appellant is self-represented. The Court is acutely aware of the difficulties experienced by self-represented litigants in seeking review of migration decisions. This is not, however, a matter giving rise to any appealable error.

Current situation in Kashmir

44    As indicated above, the appellant submitted that the current situation in Kashmir is particularly dangerous, and that the area of Pakistani Kashmir is currently a war-zone owing to tensions between Pakistan and India. In this circumstance he submitted anyone who protested as he had done for the liberation of the Kashmiri people was likely to be detained and could be killed.

45    Counsel for the Minister noted that the issues raised by the appellant regarding the unfolding situation in Kashmir were not caught up in the appellant’s current appeal. He referred to s 195A of the Migration Act, which he said would allow the appellant to seek the Minister’s favourable exercise of discretion not to remove the appellant, and counsel indicated that it would be open to the appellant to draw the Minister’s attention to the changed facts and circumstances affecting his situation.

46    Counsel also referred to pre-removal clearance (PRC) procedures, in which the appellant would have an opportunity to raise these matters. Counsel was, however, unable to provide the Court with details of these procedures, since the issue arose at the conclusion of the appellant’s submissions to the Court at the hearing.

47    In the circumstances, the Court was indebted to counsel for the Minister and his instructing solicitor for their assistance. In order to allow the Minister to inform the Court further, the Court made orders concerning the provision of further information.

48    On 13 March 2019, pursuant to these orders, the Minister filed an affidavit affirmed by Desmond Dominic Tan, a public servant employed in the Department of Home Affairs as an Acting Assisting Director in the Protection Caseload Resolution Section, Refugee, Citizenship and Multicultural Programs Division. Mr Tan deposed that a PRC is: (a) an administrative arrangement, occurring before removal, to check a person’s circumstances and relevant country information where they meet at least one of the risk factors outlined in the Department’s Policy and Advice Manual (PAM3); (b) a tool used to identify cases where non-refoulement obligations may arise, so that they may be referred for further consideration; and (c) not an assessment of any protection claims raised by a person.

49    Mr Tan further deposed that, relevant to the circumstances of this appeal, PRCs consider whether a change of country information since the appellant’s last protection assessment suggests that Australia’s non-refoulement obligations are potentially engaged.

50    The PAM3 (relevant parts of which were annexed to Mr Tan’s affidavit) specifies that removal officers must refer involuntary removal cases to the International Obligations Section of the Department for a PRC where the person engages one of the risk factors outlined in the PAM3. Under the heading, “The risk factors”, the PAM3 relevantly states that:

The risk factors, which may apply whether the person is being removed voluntarily or involuntarily, are:

•    Risk factor 1: High risk country or protection claims not previously assessed …

•    Risk factor 2: Criminal history in Australia

•    Risk factor 3: Unfinalised criminal history in Australia or in the country of return

•    Risk factor 4: Country of return has taken an adverse interest in the person

•    Risk factor 5: Other circumstances in which protection or humanitarian issues have arisen

51    Without commenting on the availability of the other risk factors, at least risk factor 5 appears to be potentially applicable in the present case. The PAM3 specifies that an example of a situation engaging risk factor 5 “is where the person’s proposed country of return is experiencing a humanitarian crisis such as a civil unrest, or war, that could lead to a risk of harm if the person is returned”. Removal officers must consult the relevant Onshore Protection office to clarify whether conditions in the country of return warrant referral for a PRC. If a person engages risk factor 5, an Onshore Protection officer “must consider whether there is anything in the person’s circumstances and country information that requires further consideration of the case through a protection assessment”.

52    Mr Tan also deposed that, where a PRC identifies a risk that Australia may breach its non refoulement obligations as a consequence of the person’s removal, the case must be referred for further consideration of Australia’s protection obligations or case resolution mechanisms, including possible referral to the Minister for consideration of relevant public interest powers. Where a person raises new claims following a refusal of a protection visa application, removal officers are instructed in the PAM3 not to make a referral for a PRC, but to refer such claims to the relevant Ministerial Intervention Unit for further consideration.

53    I accept that, as in effect the Minister submitted, the existence of changed circumstances since the Tribunal’s decision does not demonstrate jurisdictional error on the part of the Tribunal and does not provide a basis for setting aside the Tribunal’s decision. As the Full Court (Gray, Carr and Goldberg JJ) noted in Soudakov v Minister for Immigration and Multicultural Affairs [2002] FCAFC 23 at [21], “[j]udicial review of the Tribunal’s decision must be conducted on the basis of the factual material before the Tribunal, not on the basis of facts that have come to light, or have occurred, since the decision was made”: see also NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [15] (Gray, Tamberlin and Lander JJ); AAW16 v Minister for Immigration and Border Protection [2017] FCA 49 at [31] (Bromwich J); Applicant A148 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1416 at [11] (Mansfield J). It is, however, useful to note that there are administrative procedures and statutory powers that enable changes in the situation in Pakistani Kashmir and the impact on the appellant to be assessed before any steps are taken to remove him involuntarily from Australia.

Error in test for relocation finding

54    Although it was not specifically raised by the appellant, for completeness, I note that the primary judge’s finding that there was no jurisdictional error on the part of the Tribunal in applying the incorrect, though more favourable, test in relation to its relocation finding must be accepted following the decision of the High Court in Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 92 ALJR 798. In Shrestha, Kiefel CJ, Gageler and Keane JJ held that the case was to be determined by applying the holding in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780. This was, as their Honours stated, at [1]:

… an incorrect understanding and application of the law in making a decision in the purported exercise of decision-making authority conferred by the Migration Act 1958 (Cth) does not constitute a jurisdictional error justifying the grant of relief under or by reference to s 75(v) of the Constitution if a correct understanding and application of the law could not in the circumstances have resulted in the decision that was made being a different decision.

55    Applying Hossain, their Honours held, at [10], that “the fact that the postulated legal error could have had no impact on the Tribunal’s decisions denied that error the character of a jurisdictional error. The postulated legal error at most led the Tribunal to ask a superfluous question”. Kiefel CJ, Gageler and Keane JJ explained (at [10]) that, in the three cases before them, which included Shrestha:

The Tribunal’s reasons for decision … make perfectly clear that its treatment of the relevant circumstance (as meeting the enrolment element of the definition of an “eligible higher degree student”, rather than as enrolment in the particular course in which the visa holder had been enrolled at the time of grant of the visa) did not impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion. For that reason, the postulated legal error could not have taken the decision of the Tribunal beyond the authority conferred on the Tribunal.

56    It was argued and accepted in Hossain that the conceded error on the Tribunal’s part made no difference to the Tribunal’s decision, because there was an independent basis on which the Tribunal was bound to reach the same decision. In this case, the primary judge considered that the application by the Tribunal of the incorrect, though more favourable, test could only have operated beneficially to the applicant. I would accept this proposition. The fact that the test applied, incorrectly, by the Tribunal was more favourable to the appellant than the test that ought to have been applied by it provides a basis for saying that the Tribunal would have reached the same result even if it had applied the correct test: see CLJ15 v Minister for Immigration and Border Protection [2018] FCA 1638 at [51].

Disposition

57    For the reasons stated, there is no appellable error shown in the judgment of the Federal Circuit Court, and the appeal must fail. The appeal should be dismissed, with costs.

Associate:

Dated:    17 May 2019