Ali v Minister for Immigration and Multicultural Affairs

[2000] FCA 1264

FEDERAL COURT OF AUSTRALIA

Ali v Minister for Immigration & Multicultural Affairs [2000] FCA 1264

MIGRATION – application for review of decision of Migration Review Tribunal to cancel student visa – whether Tribunal made any judicially-reviewable error.

Migration Act 1958 (Cth), s 116(1), 476(3)(e)
Migration Regulations 1994 (Cth), Sch 8 cl 8105

ZULFIQAR ALI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 49 of 2000

KATZ J
SYDNEY
6 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N49 OF 2000

BETWEEN:	ZULFIQAR ALI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	6 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an order of review be dismissed.

2. The applicant pay the costs of the proceedings.

   Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

   
   

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N49 OF 2000

BETWEEN:	ZULFIQAR ALI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	KATZ J
DATE:	6 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an order of review of a decision of the Migration Review Tribunal (“the Tribunal”).  The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration & Multicultural Affairs (“the delegate” and “the Minister” respectively) to cancel Mr Zulfiqar Ali’s student visa.

2. A power to cancel visas like that held by Mr Ali is conferred on the Minister by subs 116(1) of the Migration Act 1958 (Cth) (“the Act”), which provides generally that the Minister may cancel a visa if he or she is satisfied of any one of a number of matters, one of which (par (b)) is that its holder has not complied with a condition of the visa.

3. One condition of Mr Ali’s student visa was that he not engage in work (other than in relation to his course of study) for more than twenty hours a week during any week when the institution at which he was studying was in session: see cl 8105 of Sch 8 to the Migration Regulations 1994 (Cth). It was a finding of breach by Mr Ali of that condition (which breach Mr Ali had admitted, according to the delegate’s decision record) which had led the delegate to conclude that the Minister’s power under subs 116(1) of the Act had been enlivened.

4. According to the Tribunal’s statement of findings and reasons ([1999] MRTA 1043, [22]), Mr Ali had also admitted before it that he had breached the condition of his visa to which I have referred above, so that the only real question for the Tribunal was whether to exercise the discretion to cancel Mr Ali’s visa, which discretion, in the circumstances, was its to exercise.

5. It is apparent from the Tribunal’s statement of findings and reasons (see at [23]) that it structured its consideration of the exercise of its discretion by reference to a number of considerations. They were: first, the purpose of the visa holder’s travel to and stay in Australia; secondly, the extent of non-compliance with any conditions to which the visa is subject; thirdly, the degree of hardship that cancellation may cause to the visa holder and any family members; fourthly, the circumstances in which the ground for cancellation has arisen; fifthly, the visa holder’s behaviour in relation to the Department of Immigration and Multicultural Affairs on the present and previous occasions; and, sixthly, additional considerations raised by the visa holder. The source of that catalogue of considerations used by the Tribunal (as appears from its statement of findings and reasons, [23]) was certain guidelines prepared, I gather, for the use of primary decision-makers under subs 116(1) of the Act.

6. With respect to each of the considerations which I have listed, the Tribunal made certain findings of fact and then concluded in the light of those findings (at [24]) that the preferable course of action in Mr Ali’s case was to affirm the visa cancellation decision.

7. Mr Ali’s application for an order of review, prepared on a copy of Form 56 of the First Schedule to the Federal Court Rules, seems plainly to have been drawn by him without legal assistance.

8. On that portion of the form on which an applicant is to state the grounds of the application, Mr Ali stated one ground only, which was, in substance, that the Tribunal had failed to give proper consideration to the merits of his case.

9. However, on that portion of the form on which an applicant is to state particulars of any ground of fraud, bad faith or actual bias earlier stated, Mr Ali set out a further five matters, each of which appears plainly to have been intended to be a particular of his ground that the Tribunal had failed to give proper consideration to the merits of his case. 

10. It appears to me to be proper to interpret those five particulars as follows.  First, Mr Ali’s visa had been one for the purpose of his studying in Australia.  He had in fact studied in Australia and his attendance at those studies had been very satisfactory.  In that sense, he had not breached his visa. Secondly, it had been unexpected economic necessity caused by overseas family illness which had compelled him to breach the visa condition regarding work.  Thirdly, the Tribunal had not considered the hardship which he would suffer if his visa were cancelled.  Fourthly, the Tribunal had erred in stating in its statement of findings and reasons that his educational attendance had been unsatisfactory.  Further, the Tribunal ought to have postponed making its decision on his application to it until it had received from his then current educational institution certain information, which information would have shown that his results were satisfactory and that he had made substantial progress.  Fifthly, the Tribunal had not understood that, if he should return to Pakistan (his country of nationality and usual residence) in circumstances in which his student visa had been cancelled, he would not only suffer disappointment, but might also face “condemnation and possibly death”.

11. Although Mr Ali consented at the usual directions hearing to the making of a direction that he file and serve in advance of the hearing written submissions in support of his application, he did not do so, so that the only elaboration of those five particulars to which I have already referred is that which I have had orally by Mr Ali at the hearing.  In the course of that oral elaboration, Mr Ali particularly emphasised the second and the fifth of the particulars to which I have referred above.

12. Having considered Mr Ali’s application for an order of review and his oral submissions, it is apparent to me that none of the five particulars to which I have referred can be said to give rise to any judicially-reviewable error on the part of the Tribunal in the present case.

13. However, I consider it appropriate to say the following about those particulars.

14. First, it is plain from the Tribunal’s statement of findings and reasons both that it was aware that Mr Ali had in fact studied and was studying in Australia and that it proceeded on the basis that his performance at his then current educational institution was satisfactory.  I refer in particular to its statement (at [23], last bullet point), “The Tribunal accepts that, as Mr Ali said, his performance at University should be satisfactory”.

15. Secondly, the Tribunal specifically rejected Mr Ali’s claim before it that his breach of the relevant visa condition had been caused by overseas family illness.  I refer in particular to its statement (at [23], second bullet point),

    “This is not a case where the visa holder worked for a short period to compensate for a temporary interruption in available funds or because of family or other problems.  Mr Ali continually breached this condition for much of the time for which he held the student visa.
    …
    Despite his evidence about his father’s illness and the lack of funds from home in the first half of 1999, there is no evidence that he increased his hours just in this period.”

    It does not appear to me to be open to this Court to take the view that that conclusion was not open to the Tribunal on the material before it.

16. Thirdly, the Tribunal specifically did consider the hardship which Mr Ali would suffer if his visa were cancelled: see at [23], third bullet point. It may be, of course, that Mr Ali’s real complaint is that the Tribunal did not give sufficient weight to the hardship which he would suffer if his visa were cancelled, it being accepted that such hardship would occur. However, even if review by this Court were available on the ground of a failure to take into account in the exercise of a power a relevant consideration (which is not the case: see par 476(3)(e) of the Act), such a ground would not normally encompass a complaint about the weight given to a relevant consideration.

17. Fourthly, the Tribunal’s statement in its statement of findings and reasons regarding Mr Ali’s educational attendance had not been general in nature.  What the Tribunal had actually said was that the first educational institution at which Mr Ali had been enrolled in Australia had regarded his attendance as unsatisfactory, but (as I have already mentioned) that the Tribunal would proceed on the basis that his performance at his then current educational institution was satisfactory.

18. Fifthly, as to Mr Ali’s present claim that he might face “condemnation and possibly death” if he were to return to Pakistan in circumstances in which his visa had been cancelled and his assertion that the Tribunal had failed to understand that, I can find nothing in the materials before me to suggest that Mr Ali made such a claim before the Tribunal.  I infer that any claim as dramatic as one that death might flow from his return in those circumstances would most certainly have found its way into the Tribunal’s statement of findings and reasons if made before it.  However, all that I find in the Tribunal’s statement of findings and reasons which bears on the question of the consequences of Mr Ali’s return in circumstances in which his visa had been cancelled appears in the Tribunal’s “degree of hardship” discussion, where it is said:

    “The Tribunal accepts that Mr Ali’s family will suffer disappointment if the visa is cancelled but there is no evidence that it will impede his career prospects in Pakistan other than Mr Ali’s assertion that an Australian qualification would help him to get a good job.”

19. In all the circumstances, Mr Ali’s application for an order of review must be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             6 September 2000

The applicant appeared for himself.
Counsel for the Respondent:	Mr R T Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 September 2000
Date of Judgment:	6 September 2000