Aufar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 727
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aufar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 727
File number(s): SYG 3165 of 2019 Judgment of: JUDGE LAING Date of judgment: 17 August 2023 Catchwords: MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s visa – whether the Tribunal failed to comply with s 359 of the Migration Act 1958 (Cth) – whether the Tribunal considered the applicant’s claims and evidence – application dismissed Legislation: Migration Act 1958 (Cth) ss 116, 359
Migration Regulations 1994 (Cth) sch 8
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 9 August 2023 Place: Sydney Appearing for the Applicant: In person Solicitor for the First Respondent: Ms C Saunders of Minter Ellison Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3165 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HADYAN DESTYA AUFAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
17 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
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).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Student (Class TU) (Subclass 500) visa.
BACKGROUND
The applicant is a citizen of Indonesia. He arrived in Australia in 2014. He has remained in Australia on various student and bridging visas. On 9 February 2017, the applicant was granted the student visa that is the subject of this review.
On 5 September 2018, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) of his student visa under s 116 of the Migration Act 1958 (Cth) (Act). This was on the basis that the applicant had not complied with a condition of his visa, namely the requirement in condition 8202(2)(a) in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) that he be enrolled in a full-time registered course.
On 27 September 2018, the Delegate decided to cancel the applicant’s visa. The applicant applied to the Tribunal for review of that decision.
On 29 October 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal observed that a visa may be cancelled under s 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of the visa. The condition in issue was condition 8202, which relevantly required the applicant to have been enrolled in a registered course. The Tribunal observed that the applicant’s enrolment in a Diploma of Information Technology had ceased on 2 November 2017 and that the applicant was not enrolled from that date until 19 September 2018. The Tribunal noted that the applicant had acknowledged and accepted that grounds for cancellation existed. The Tribunal found that a ground for cancellation existed under s 116(1)(b) of the Act (at [15]-[19]).
The Tribunal therefore proceeded to consider whether the visa should be cancelled. The Tribunal considered:
(a)The purpose of the applicant’s travel to and stay in Australia, and whether the applicant had a compelling need to remain. The Tribunal accepted that the applicant’s brother had a sinus condition which required surgery and that his father suffered a mild stroke in 2017. However, the Tribunal did not accept that these issues, or the applicant’s claims regarding his mental state, adequately explained the applicant’s non-compliance with his visa condition. The Tribunal observed that the applicant had not sought deferral of his course and had not returned home to visit his family. The applicant had not sought psychological assistance until after the cancellation process had commenced. The Tribunal also observed that the applicant had continued to work part time during the period, which was considered to raise concerns regarding the applicant’s intentions. The Tribunal did not consider that the applicant had a compelling need to remain in Australia as he could study in his home country. The Tribunal found that the evidence in this regard was finely balanced between being in favour of and against cancelling the visa (at [21]-[33]).
(b)Circumstances in which the ground of cancellation arose. The Tribunal accepted that the applicant’s brother and father had health issues in 2017, but considered that the applicant had “exaggerated the extent of these”. The Tribunal considered that the applicant had the option of returning to Indonesia to avoid breaching his visa conditions but had not done so. The Tribunal considered that it was unable to form a view on whether the applicant was suffering from a clinical diagnosable mental health condition that put his suffering beyond “ordinary mental difficulties” at the relevant time, in the absence of contemporaneous evidence of his mental state in 2017. The Tribunal considered that, notwithstanding the difficulties the applicant had faced regarding his brother’s and father’s health, it had been his responsibility to avoid breaching his visa conditions. The Tribunal gave this consideration equal weight in favour of and against cancelling the visa (at [34]-[38]).
(c)The extent of compliance with visa conditions. The Tribunal noted the applicant’s evidence that he had otherwise complied with student visa conditions. However, the Tribunal considered that the 10 month breach of his visa condition was significant. This was given weight in favour of cancelling the visa (at [39]).
(d)The degree of hardship that may be caused. The Tribunal accepted that the cancellation of the visa was disappointing to the applicant and his family. It accepted that a significant amount of money may be invested in setting a person up in a country to live independently in order to study. However, the Tribunal was mindful of the seriousness of obtaining a student visa and then remaining in Australia whilst breaching a visa condition. The Tribunal considered that the hardship that may be faced by the applicant and his family did not outweigh the breach and therefore gave this consideration limited weight (at [40]-[43]).
(e)Past and present behaviour towards the Department. The Tribunal accepted that there was nothing to indicate adverse conduct by the applicant towards the Department. This was given some weight against cancellation (at [44]).
(f)Any consequential cancellations under s 140. The Tribunal found that this consideration was not relevant to the applicant (at [45]).
(g)Mandatory legal consequences of cancellation. The Tribunal observed that as a result of cancellation, the applicant would be an unlawful non-citizen liable for detention and removal, whose ability to apply for further visas was limited. The applicant would also be subject to public interest criterion 4013 for three years, resulting in ineligibility for approval of temporary visas requiring this criterion to be met. The Tribunal gave this consideration little weight in favour of the applicant, noting that “these are the intended consequences of the legislation” and that the applicant would be able to apply for a bridging visa whilst making arrangements to depart Australia (at [46]).
(h)International obligations. The Tribunal considered that there was nothing to suggest that the cancellation would result in breach of any international obligations. The Tribunal therefore placed no weight on this in favour of or against the applicant (at [47]).
(i)Any other relevant matters. The Tribunal did not consider that there were any other relevant matters to be considered (at [48]).
At [49] the Tribunal expressed that having considered “the circumstances as a whole”, it had concluded that the visa should be cancelled (at [49]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [50]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 3 December 2019. The applicant ultimately relied upon an amended application filed on 26 July 2023 containing the following grounds:
[1]The Administrative Appeals Tribunal failed to comply with Section 359 of the Migration Act. The Tribunal had failed to take into account all relevant documents and information provided to them.
[2]The Tribunal had failed to provide due and proper consideration on all relevant facts provided.
Ground 1
Ground 1 of the application contended that the Tribunal failed to comply with s 359 of the Act. The ground suggested that this occurred by the Tribunal failing to take into account all relevant documents and information provided to it.
To the extent that this ground contended that the Tribunal failed to consider evidence and claims beyond those relevant to s 359 of the Act, this is considered under ground 2 below.
To the extent that the applicant relied upon s 359 of the Act, that provision relevantly stated:
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information….
The Tribunal does appear to have invited the applicant orally at hearing to provide it with certain information, in the form of translated copies of medical certificates relating to his brother’s and father’s medical conditions (at [24]). However, those documents were not provided. I accept the Minister’s submission that the requirement for the Tribunal to have regard to such information therefore does not appear to have been enlivened.
The applicant did provide other material to the Tribunal after the hearing. That material encompassed various documents that had been provided to the Department, including a letter from the applicant, an offer letter from Canterbury Business College, untranslated medical records, an untranslated family registration card and a report from the applicant’s psychologist dated 25 October 2019.
I accept the Minister’s submission that those documents were effectively considered at [22]-[24], [27]-[28] and [30] of the Tribunal’s decision. The Tribunal found that it was unable to give more than limited weight to the untranslated documents. It accepted that the applicant’s brother and father had experienced some health problems but did not accept that these explained his non-compliance with a condition of his visa. The Tribunal was not persuaded to place significant weight upon the psychologist’s report, in circumstances were it was not contemporaneous to the period in question and was reliant upon the applicant’s reporting.
As I do not accept that the Tribunal failed to consider the above, ground 1 is unable to succeed.
Ground 2
Ground 2 contended that the Tribunal failed to provide due and proper consideration to all relevant facts provided.
The Tribunal was required to engage intellectually with the merits of the case before it. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 it was stated per Griffiths, White and Bromwich JJ at [45]-[46]:
45.Subsequent cases have endorsed the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria (Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [47]- [54] per Lindgren, Rares and Foster JJ; SZVVR v Minister for Immigration and Border Protection [2016] FCA 1364 at [24]- [26] per Collier J; Telstra Corporation Limited v Australian Competition and Consumer Commission [2017] FCA 316 (Telstra v ACCC) at [62] and [71] per Foster J; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 (Khadgi) at [57] per Stone, Foster and Nicholas JJ; AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]- [11] per Bromberg J). This does not require the decision-maker to refer in the reasons for decision to every piece of evidence and every contention made by an applicant, and it may be that some material provided will not be relevant to the criteria. Also, in accordance with well-known authority, the reasons of the decision-maker should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ, as cited in Khadgi at [63] and Telstra v ACCC at [62]).
46.We are of the view that the meaning of the word “consider” set out in Tickner v Chapman and the requirement for a decision-maker to engage in an active intellectual process in giving consideration to the relevant matters or criteria should also be applied in determining grounds 1 and 2 of the present applications. As noted above, under s 501(3), the Minister has a discretion to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that the cancellation is in the national interest. Otherwise, the Act does not expressly oblige the Minister to consider any particular thing or matter before deciding to exercise his powers under that provision. Nevertheless, as we have noted above, the Minister did not contest that he was under a general legal obligation to consider the merits of their cases before cancelling the visas of both Mr Taulahi and Mr Carrascalao. An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a “more precisely defined duty”, as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word “consider” in this judicial review context requires the Minister to engage in an “active intellectual process” in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
However, the following caution was also expressed at [31]-[32]:
31.The Minister also (correctly) emphasised the danger that the use of an expression such as “proper, genuine and realistic consideration”, as relied upon by both judicial review applicants, could draw the Court into an impermissible merits review.
32.The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a “slide” into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA’s comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
In written submissions, the applicant identified several matters that he contended the Tribunal had failed to consider.
The first was a confirmation of enrolment for a Certificate IV in Commercial Cookery, which was said to show that the applicant had a passion for cookery. This, it was submitted, was consistent with the applicant’s submission that he would like to run his own restaurant upon returning to Indonesia.
The Tribunal expressly considered this Confirmation of Enrolment at [22] of its decision. There, the Tribunal also related this document to the applicant’s evidence that he had a “passion for cooking and an intention to have his own restaurant in Australia or Indonesia”. Notwithstanding this, the Tribunal was not persuaded that the applicant had a compelling need to remain in Australia. This was having regard to the applicant’s history in Australia, including his work experience and attainment of a hospitality qualification. The Tribunal also considered that the applicant would be able to study in his home country (at [23]-[33]). The Tribunal, therefore, appears to have actively considered and engaged with the applicant’s evidence regarding his confirmation of enrolment in a Commercial Cookery course.
The second matter that the applicant contended was not considered was the “great disparity in living expense between Australia and Indonesia”. The applicant referred in his written submissions to country information supporting this contention. However, as was submitted by the Minister, it does not appear that this contention was made to the Tribunal or that such evidence was provided to the Tribunal. The Tribunal cannot be said to have fallen into error in failing to consider contentions that were not made and did not clearly arise. Nor can the Tribunal be said to have fallen into error by failing to consider evidence that was not provided to it.
The third matter that the applicant contended was not considered was the seriousness of his brother’s and father’s health conditions. The applicant submitted that his brother had suffered an illness which caused swelling on the nose and if left untreated could have impacted the brain. The applicant submitted that his father had an accident and a mild stroke. However, these conditions were considered by the Tribunal at [23]-[30] and [35]-[38] of its decision. As summarised above, the Tribunal accepted that the applicant’s brother and father had experienced health issues but considered that their extent had been exaggerated by the applicant. This was in circumstances where the applicant had not provided translated copies of the medical certificates that had been submitted in relation to the conditions, and where the applicant had not returned home to be with his family but had instead remained in Australia in breach of his visa condition. It was also in the context of limitations that the Tribunal had identified in relation to the applicant’s evidence concerning the impact of his family’s conditions upon his mental health. The Tribunal, therefore, appears to have engaged with this evidence but not accepted that it adequately explained the applicant’s breach of his visa condition.
The fourth matter the applicant raised concerned his own mental health condition, in respect of which he noted that he had provided “doctor letters”. However, the Tribunal appears to have engaged with the medical evidence that was before it regarding the applicant’s claimed mental health condition at [28]-[30] and [35]-[38] of its decision.
The Tribunal accepted that the applicant had provided an assessment report by a registered psychologist. However, the Tribunal was unwilling to place significant weight upon this evidence. This was in circumstances where the Tribunal considered that the applicant had not sought psychological assistance prior to receiving the NOICC (at [28]). This does not appear strictly accurate: the psychological report indicated that the applicant was seen on 4 September 2018, the day before the NOICC. However, this was after correspondence had been sent to the applicant from the General Cancellations division of the Department foreshadowing the potential cancellation of his visa. Given this and the content of the psychological assessment (which was directed towards explaining the applicant’s difficulties with “visa compliance”), I find that any error by the Tribunal in this regard was immaterial to its decision and therefore was incapable of amounting to jurisdictional error. This is because the Tribunal’s essential concern appears to have been that the applicant had not sought psychological assistance until the cancellation process had commenced, which meant that the report was not contemporaneous with the period in which the applicant had contended that his mental health issues had prevented his enrolment.
The Tribunal was also not prepared to give significant weight to the report in circumstances where it appeared to have been significantly based upon the applicant’s reporting. The Tribunal, therefore, appears to have intellectually engaged with the applicant’s psychological evidence. This is so even though it did not do so in the manner that may have been hoped by the applicant.
In his written submissions the applicant additionally referred to cl 500.212(a) of Schedule 2 to the Regulations and to Direction No. 69. However, these provisions concerned the ability of an applicant to meet a criterion for the grant of the visa (namely, the genuine temporary entrant criterion). They did not govern the question of the visa’s cancellation. I therefore accept the Minister’s submission that they were not matters that the Tribunal was obliged to have taken into account.
As I am unable to accept that the Tribunal erred in the manner contended under ground 2, the ground is unable to succeed.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 17 August 2023
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