Afzal v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1138
•14 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Afzal v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1138
File number(s): SYG 385 of 2020 Judgment of: JUDGE MCCABE Date of judgment: 14 October 2024 Catchwords: MIGRATION – application for judicial review – student visa – review of a decision of the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal failed to consider relevant material – whether the Tribunal failed to give the material proper weight – no jurisdictional error found – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Division: Division 2 General Federal Law Number of paragraphs: 20 Date of hearing: 14 October 2024 Place: Sydney Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms Q Chen, HWL Ebsworth Second Respondent: Submitting appearance save as to costs ORDERS
SYG 385 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DANISH AFZAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
2.The applicant pay the first 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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MCCABE:
This written statement of reasons is based on reasons given orally at the conclusion of the hearing.
Mr Afzal filed an application for judicial review on 20 January 2020. The application relates to a decision of the Administrative Appeals Tribunal (Tribunal) dated 17 January 2020, which affirmed an earlier decision of a delegate (delegate) of the Minister for Immigration and Multicultural Affairs (minister) cancelling the applicant’s Temporary (Class TU) (Student) (Subclass 500) visa (student visa) that had been granted on 6 December 2017.
Before I refer to the history of the matter and the substance of the review, I should record what I have explained to the applicant at the hearing about the role of the Court. The power to grant or refuse a visa or to cancel a visa is vested in the executive ‑ the minister and his delegate, and the Tribunal on review. They make the substantive decision which includes the exercise of any discretion available to them under the legislation. The court cannot substitute its own judgment about the merits of the applicant’s application for a visa. I cannot say the applicant should have been given a visa in all the circumstances. The Court’s role is limited to scrutinising the decision to ensure it was lawful. Was the correct law applied correctly? Was the decision-making process sound in the sense it was lawful and procedurally fair? If I found a material defect ‑ what is known as a jurisdictional error ‑ then the decision is treated as if it has not been made at all, and the process ordinarily goes back to the decision-maker to do it again according to law.
That is what success looks like for the applicant following today’s hearing: if he succeeds, the matter is likely to be returned to the Tribunal (although the Court does have the discretion not to provide a remedy). But if he is unsuccessful, the application for review is dismissed and the Tribunal’s decision stands.
BACKGROUND
The visa was originally cancelled after the delegate concluded the applicant was not, in the period leading up to the time of cancellation, enrolled in a course of study. The delegate relied on the power in s 116(1)(b) of the Migration Act 1958 (Cth) (Act) to cancel the visa. That power is exercised where the visa holder fails to comply with a condition attaching to the visa. The condition in question is found in condition 8202(2)(a) of the Migration Regulations 1994 (Cth) (Regulations).
A decision-maker, including the Tribunal on review, is not obliged to cancel a visa under s 116 of the Act where there is a breach of a condition. The power to cancel under that section is generally discretionary.
The applicant sought review of the delegate’s decision. He acknowledged before the Tribunal that he had not been enrolled in a course of study as the delegate had found. As he explained at the hearing before me, the applicant effectively dropped out of the course he was studying in the wake of an accident that injured his father and a sibling at home. The applicant said that experience caused financial issues and distress which affected his health. It follows the discretion to cancel under s 116 of the Act was enlivened because there was a breach of condition that the visa-holder be enrolled in a course of study. The question before the Tribunal was whether the discretion to cancel should be exercised.
In its reasons for decision published following the hearing, which are reproduced in the court book, the Tribunal referred to evidence the applicant had provided and looked to a variety of considerations that it enumerated. The Tribunal’s identification of relevant considerations was apparently informed by the relevant departmental policy or procedural instruction dealing with general visa cancellation powers, although the minister acknowledges the Tribunal was not formally bound to apply that policy according to its terms.
In any event, the applicant was unsuccessful before the Tribunal, and he has now sought judicial review of the Tribunal's decision. The applicant has informed me that his application for review, which articulates grounds of review, was put together with the assistance of someone else. His application for review articulates four numbered grounds of review. (There is actually a fifth ground, but it is not numbered and it is subsumed into the other four.) The grounds generally allege the Tribunal either failed to consider relevant material or did not give that material proper weight.
In his oral submissions today, the applicant has made clear the real issue was the weight the Tribunal assigned to the material that was provided. I note that, with one exception I will come to shortly, the applicant has not identified with any particularity the evidence which the Tribunal failed to consider. The documentary material provided to the Tribunal is reproduced in the court book at pp 54-82. That material is comprised of submissions provided by the agent that represented the applicant at the hearing (at pp 55-61), academic records (at pp 61-61), a bundle of primary medical records relating to the applicant’s father (at pp 63-78) (some of which are not in English), and a psychologist report dated 10 November 2020 relating to the applicant (at pp 79-81). There is also a Certificate of Enrolment for a course the applicant was proposing to commence in February 2020. That said, I turn to the individual grounds of review.
GROUNDS OF REVIEW
Ground one complains that the Tribunal did not give appropriate weight to evidence regarding financial hardship as an explanation for why the applicant could not remain enrolled. I note the Tribunal does refer to the financial evidence in its reasons at [18]-[19]. A fair reading of the reasons makes clear the evidence was considered by the Tribunal. The weight the Tribunal accords the evidence is a matter for the Tribunal. There is no substance to ground one.
The same can be said of ground two. The Tribunal refers to the material the applicant provided. It appears from the reasons that the Tribunal did not just make a perfunctory reference to the material; a fair reading of the reasons suggests the Tribunal took that material into account. Whether the Tribunal should have reached a different weighting is not something upon which I can comment. The applicant’s complaint in grounds one and two amounts to a request for impermissible merits review – in effect, that the Tribunal should have reached a different conclusion after considering the material that was provided.
The same can be said of ground four. The Tribunal referred to the evidence regarding the new course and the likely loss of an opportunity at [14] of its reasons. The ground amounts to a criticism of the outcome. The Tribunal has referred to the material and reached a different conclusion to the one preferred by the applicant. The Tribunal was allowed to do that. The fifth ground fails for the same reason.
The third ground relates to the psychologist report dated 10 November 2020. The ground itself says the Tribunal either ignored or failed to consider that evidence, but it is not ignored. The Tribunal engages with the material at [18] in that part of the reasons which deal with the circumstances in which the applicant came not to comply with the condition. I acknowledge the Tribunal does not give the psychologist report significant weight, but that is a matter for the Tribunal.
The Tribunal did have some regard to the psychological evidence provided by the applicant when discussing the circumstances in which the applicant had come to be non-compliant with the condition at [18]. I acknowledge that earlier in the reasons, when the Tribunal was discussing the degree of hardship which may be caused in the event of cancellation, the Tribunal referred at [14] to the fact there was no (or limited) evidence of financial, psychological, emotional or other hardship which would be caused by the cancellation.
That observation seems odd at first blush: the Tribunal sets out evidence of financial, psychological emotional and other hardship when it discusses the report at [18]. Ms Ren, who appeared for the minister, submitted the Tribunal took as read that there would be financial hardship and embarrassment if the applicant wasn’t able to conclude the studies in which he was recently enrolled. She also pointed out the psychologist’s report did not address the consequences of cancellation: it focused on the reasons for non-compliance with the visa conditions. It follows the Tribunal's finding at [14] of its reasons was, strictly speaking, correct. I note the Tribunal recorded at [18] of its reasons an invitation that it had given to the applicant to provide further information at the hearing, but that invitation was declined.
In all the circumstances, I am not satisfied the applicant has made out the third ground of review. His criticism of the Tribunal related to the weight it gave the evidence before it. The material in relation to his psychological condition was taken into account, albeit I acknowledge the applicant is critical of the weight which it was given. Subject to the constraints of reasonableness, questions of weight are a matter for the Tribunal. There was, and can be, no serious suggestion in this case that the Tribunal's findings were not reasonable in the legal sense. I accept they are logical and founded on the evidence, even if a different decision-maker might have dealt with them differently.
One last matter: the applicant said in his oral submissions that his mental health at the time of the hearing before the Tribunal may have impaired his ability to give evidence at that hearing, although he confirms his mental health has improved so that there is no issue today. I acknowledge there was evidence before the Tribunal suggesting he was experiencing symptoms of anxiety and depression, although there was no suggestion then or now that he was incompetent. Particularly where an applicant is unrepresented, evidence of depression or anxiety that might impair an applicant would be a red flag to the presiding member that might prompt questions about whether the applicant was fit to give evidence.
There is no evidence before me which suggests questions about impairment were raised at the time. I note the applicant was represented. While issues of impairment leading to a lack of procedural fairness were not raised as a ground of review, there is insufficient material before me and no reason to suggest that I should invite an amended application to deal with that issue.
CONCLUSION
It follows the application for judicial review must be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 4 November 2024
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