Azhar v Minister for Home Affairs
[2019] FCCA 1422
•10 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZHAR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1422 |
| Catchwords: MIGRATION – Cancellation of student visa – whether Tribunal erred in analysing the applicant’s enrolment status – whether Tribunal considered all relevant circumstances – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 476, Condition 8202 |
| Cases cited: Attorney General (NSW) v Quin (1990) 170 CLR 1 AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 MZARG v Minister for Immigration & Border Protection [2018] FCA 624 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2018] FCCA 1494 |
| Applicant: | HAFIZ MUHAMMAD UZAIR AZHAR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 326 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 10 May 2019 |
| Date of Last Submission: | 10 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 10 May 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr A Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for judicial review be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 326 of 2018
| HAFIZ MUHAMMAD UZAIR AZHAR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Introduction
By application filed in this Court on 20 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal) dated 21 May 2018.
The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to cancel the applicant’s Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa (the “visa”).
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Court has read the Court Book (“CB”), marked as Exhibit 1. The Court has also read the Minister’s outline of submissions filed 12 April 2019. The Court is satisfied that [4]-[12] in those submissions accurately summarise the factual background of the matter and [13]-[26] accurately summarise the Tribunal’s decision. The Court adopts these summaries as its own. They provide as follows.
Factual Background
The applicant, a citizen of Pakistan, arrived in Australia on 18 June 2013 to study a Certificate IV in Project Management.
On 18 June 2013, the applicant was granted the visa.
The applicant failed to maintain enrolment in a registered course of study and ceased to be enrolled in a registered course on 5 May 2016.
A Notice of Intention to Consider Cancellation of the applicant’s visa (“NOICC”) was issued on 20 July 2016 (CB 8).
On 27 January 2017, the applicant responded to the NOICC and provided the following information (CB 6):
a)he successfully completed a Diploma of Business, a Certificate IV in Project Management and a Certificate IV in Business;
b)in April 2016 his life took an unexpected turn when his grandmother was hospitalised;
c)he was close to his grandmother and was affected emotionally by her deteriorating health, leading to irregular studies;
d)after his enrolment was cancelled on 5 May 2016, he made several efforts to reinstate but the education provider did not allow him to re-enrol;
e)his grandmother passed away on 23 September 2016 and he was devastated and unable to concentrate on anything;
f)he faced a hard time in the last few months and the situation was out of his control; and
g)his parents will be disappointed if he does not continue his studies.
On 31 January 2017, a delegate of the Minister cancelled the applicant’s visa on the basis that he had breached condition 8202 in that he was not enrolled in a registered course (CB 26).
The applicant sought review in the Tribunal on 3 February 2017 (CB 43).
Tribunal Decision
A hearing was held before the Tribunal on 9 April 2017. The applicant presented evidence and provided oral arguments.
On 21 May 2017, the Tribunal affirmed the delegate’s decision (CB 68).
The Tribunal noted that the applicant was granted the visa on 18 June 2013 with condition 8202 attached. The applicant was required to be enrolled in a registered course. The requirements of 8202 do not allow the visa holder to cease to be enrolled in a course (CB 70 at [7]).
The Tribunal found that the applicant had breached condition 8202(2)(a) of his visa as he had not been enrolled in a registered course since 5 May 2016 (CB 70 at [9]).
The Tribunal was satisfied that the ground for cancellation in sub-s.116(1)(b) existed and, as that ground does not require mandatory cancellation under s.116(3), the Tribunal proceeded to consider whether to exercise its discretion to cancel the visa (CB 70 at [10]).
The Tribunal noted that the applicant had previously been enrolled in an Advanced Diploma of Business. His enrolment in this course was cancelled on 29 June 2015 for unsatisfactory course progress. Further, he had only achieved 58 per cent course attendance (CB 71 at [12]).
The Tribunal noted that the applicant had commenced a Certificate III in Commercial Cookery (which is not a Higher Education Sector course) and was enrolled from 8 February 2016 until 17 March 2016 with an unsatisfactory attendance rate of 21 per cent from 8 February 2016 to 24 April 2016 (CB 71 at [13]).
The Tribunal noted cookery courses are offered at Vocational Education and Training Sector level, which was not the level of study for which the applicant’s visa was granted (CB 71 at [14]).
The Tribunal considered the circumstances in which the ground of cancellation arose, the extent of the breach and the reasons provided by the applicant (CB 72 at [24]).
The Tribunal noted that the purpose of the visa is to enable the visa holder to undertake study in Australia and that more than eight months had elapsed from the date the applicant was last enrolled until the NOICC was issued (CB 72 at [26]).
The Tribunal found the applicant’s breach of condition 8202 to be significant and found there was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances (CB 73 at [27] and [29]).
The Tribunal acknowledged that the applicant’s parents would be angry with him about the cancellation but was not satisfied this constituted a sufficient degree of hardship such that the visa should not be cancelled (CB 73 at [30]).
The Tribunal found no evidence that the applicant’s past or present behaviour towards the Minister’s Department was untruthful or uncooperative (CB 73 at [31]).
The Tribunal was also mindful that cancellation could lead to the applicant becoming an unlawful non-citizen and that the applicant might face difficulties in being granted further visas in Australia or may be subject to a three-year exclusion period (CB 73 at [32]).
The Tribunal noted that it was not aware of any other considerations that should be taken into account in relation to the cancellation and, after considering the totality of the applicant’s circumstances, concluded that the visa should be cancelled (CB 73 at [34]-[36]).
The Tribunal affirmed the decision to cancel the visa (CB73 at [37]).
Proceedings in this Court
The applicant raised 16 “grounds” of review in his judicial review application.
Those grounds, without amendment, provide as follows:
1.I was born on 16 March 1992 in Pakistan.
2. My family resides in Pakistan apart from my brother who lives in Australia.
3. I was granted Student (Temporary)(Class TU) Higher Education Sector (subclass 573) on 18 June 2013 and was valid till 15 September 2017.
4. I have completed my primary and secondary studies in Pakistan.
5. I have completed Certificate IV in Project Management, Certificate IV in Business and Diploma of Business.
6. In 2016 my grandmother was sick and eventually passed away on 23/09/2016.
7. While my grandmother was sick I was not regular with my classes and my education provider (Cambridge International College) cancelled my enrolment.
8. I tried to reinstate my enrolment at Cambridge International College, but my request was repeatedly denied.
9. On 20 January 2017 I was issued with Notice of Intention of Cancellation of Visa under Section 116 of the Migration Act 1958.
10. I provided my response to the notice on 27 January 2017 with a letter explaining my situation and provided evidence for the same.
11. On 31 January 2017 my visa was cancelled as the case officer was not satisfied with my response.
12. I applied for Merit Review of Case with Administrative Review Tribunal (AAT).
13. I was invited by AAT on 9 April 2018 to give evidence and present arguments.
14. I attended the hearing and explained my situation, but the tribunal Affirmed decision to cancel my visa.
15. In Point 13 of the tribunal decision it is stated that I was enrolled in an Vocational Course in Cambridge International College which is incorrect. I was enrolled in course package and I held COE for Bachelor of Business from Cambridge International College which is acceptable for my visa under Regulation 1.40A and Immi 14/015 as applicable at time of grant of my visa.
16. I believe that the tribunal member and case officer has not taken into grant all the compelling and compassionate circumstances applicable to my case.
By orders of a Registrar of this Court dated 15 August 2017, the applicant was afforded an opportunity to file an amended application, any supporting affidavits and an outline of submissions prior to the hearing today. Despite this, the applicant did not file any further documents.
The applicant’s grounds of review are, at best, “vague”. This puts the respondent at a disadvantage as it makes it difficult for them to gauge what, precisely, the applicant thinks the Tribunal “did wrong”.
It has long been held that a failure to particularise provides a basis for each of the grounds to be dismissed: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; MZARG v Minister for Immigration & Border Protection [2018] FCA 624 at [25] per McKerracher J.
However, the Court is mindful of the decision of Colvin J in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8], wherein His Honour commented that the consequences of a failure to particularise will depend upon the circumstances.
Although this matter does not relate to an application for a protection visa, the Court is mindful that the applicant appeared without any legal assistance.
In these circumstances, the Court asked the applicant to explain what he believes the Tribunal “did wrong”.
The Court explained to the applicant that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal decision or grant him the visa he now seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (“Wu Shan Liang”).
In effect, the applicant simply stated that he was quite concerned that he had not been given an opportunity to finish his courses. He advised the Court that he simply wanted an opportunity to finish his course of study as, without that opportunity, there was very little that he would be able to do with the courses that he had already undertaken.
Counsel for the Minister then summarised his written submissions. The applicant was then given a further opportunity to comment. Unfortunately, the applicant did not provide information that assisted him in relation to the issue before the Court – that is, whether or not the Tribunal had engaged in jurisdictional error. He simply restated that he wished to be given an opportunity to complete his course of study.
Consideration
The question before this Court is: do the applicant’s grounds of review point to an error on the part of the Tribunal in this regard?
In relation to the grounds of review contained in the applicant’s application for judicial review, the Court agrees with counsel for the Minister that theses “grounds” simply recite the applicant’s history.
It is arguable that what the applicant is asking the Court to undertake is a merits review in the hope that the Court will ultimately come to a different conclusion than that reached by the Tribunal. In effect, the applicant would like the Court to review the evidence that was before the Tribunal and give him the student visa that he seeks. The Court cannot undertake a review of that sort: Wu Shan Liang at 272.
The Court agrees with the Minister that grounds 15 and 16, read at their highest, appear to argue that the Tribunal:
a)made an error of fact in relation to the applicant’s enrolment status; and
b)failed to consider that the matters raised by the applicant constituted “compelling and compassionate circumstances”.
Error of fact in relation to the applicant’s enrolment status
An error of fact would not of itself ordinarily constitute an error of law, let alone jurisdictional error: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-36. An error in respect of the evidence only constitutes jurisdictional error only if it results in a failure to discharge the Tribunal’s duty to review the delegate’s decision according to law: W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 at [27].
In relation to ground 15 and the applicant’s enrolment status, the material does not suggest that the Tribunal made any error as alleged by the applicant.
The applicant’s argument appears to point to his previous enrolment in a package of business studies courses. The Tribunal referred to these courses at [8], [9] and [12] of its decision. At [13], the Tribunal then addressed the applicant’s enrolment in a Certificate III in Commercial Cookery:
13. The Tribunal noted from the delegate’s decision that the applicant commenced a Certificate III in Commercial Cookery with Cambridge International College (CIC), a course which is not a Higher Education Sector course. He was enrolled in this course from 8 February 2016 until he ceased study on 17 March 2016. The delegate referred to evidence available in PRISMS that the applicant was reported for unsatisfactory attendance for the study period from 8 February 2016 to 24 April 2016 with a potential attendance rate of 21%. The Tribunal noted that the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled on 5 May 2016.
The Tribunal was correct in observing that a Commercial Cookery course was at the vocational level, rather than the higher education level. As such, the Commercial Cookery course did not meet the requirements for which the applicant was granted the visa.
The essential finding in the Tribunal’s decision is that, despite having enrolled in the Commercial Cookery course, the applicant did not attend any classes and, in fact, had ceased studying.
The basis for cancelling the applicant’s visa was his failure to comply with condition 8202 of the visa pursuant to s.116(1)(b) of the Act. Section 116(1)(b) provides that the Minister may cancel a visa if a non-citizen breaches a condition of the visa. Condition 8202 is a common condition imposed on many student visas.
In Maan v Minister for Immigration & Citizenship [2009] FCAFC 150, a delegate of the Minister cancelled the appellant’s (in that case) student visa pursuant to s.116(1)(b) on the basis that the appellant had breached condition 8202 by failing to attend classes. Justices Dowsett, Greenwood and Collier held that condition 8202 is breached when the student’s education provider certifies that the student has not achieved either satisfactory course progress or attendance.
In this case, the Tribunal noted (at [8]) that the applicant’s enrolment in a Bachelor of Business course was cancelled on 5 May 2016. At [13], the Tribunal noted the applicant’s Commercial Cookery enrolment was also cancelled on 5 May 2016.
The applicant was required to satisfy the Tribunal that, at the time of the Tribunal’s decision, he met the criterion of the visa. He did not do so. Hence, he was in breach of condition 8202(2)(a) of his visa from that date – regardless of what course the Tribunal considered. As a result, a ground for cancellation existed, notwithstanding any alleged error of fact.
Accordingly, the Court is satisfied that there is no evidence that the Tribunal’s decision contains an error of fact that resulted in a failure to discharge the Tribunal’s duty to review the delegate’s decision according to law.
Failure to consider matters constituting compelling and compassionate circumstances
In ground sixteen of the application, the applicant has not particularised which matters he says the Tribunal failed to take into account.
The Tribunal is required to give ‘proper, genuine and realistic consideration’ to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33] (“Carrascalao”).
The Court notes that the applicant did not provide the Tribunal with any evidence, in the form of a medical or psychiatric report for example, to support his assertions that he was affected by his grandmother’s passing or his homesickness to such an extent that this caused his low class attendance.
In any event, the Tribunal did consider the applicant’s alleged homesickness and concern for his grandmother in its reasons (CB 72 at [25]). The Tribunal also considered the applicant’s assertion that his parents may be angry with him were his visa cancelled (CB 73 at [30]), and the negative influence of the applicant’s friends (CB 72 at [25]).
The Tribunal clearly had regard to all of the applicant’s circumstances (CB 73 at [35] it states it “has carefully considered the applicant’s circumstances”) and “properly, genuinely and realistically” considered the claims and evidence before it: Carrascalao.
It is not for the Court to make any value judgment in relation to the merits of whether there existed compelling and compassionate circumstances on the part of the applicant, such as to warrant non-cancellation.
It is plain that the Tribunal here addressed all of the circumstances put forward by the applicant as affecting him. It considered whether each of the circumstances alone or together compelled the exercise of the discretion (CB 73 at [35]). It was not satisfied it did so.
The Court is satisfied that the Tribunal had regard to all of the factors put forward by the applicant both before the delegate and in the hearing. It was not convinced that those considerations warranted exercising the discretion in the applicant’s favour.
The Tribunal correctly identified the issues before it and made findings which were open to it on the evidence.
No jurisdictional error can be identified in the Tribunal’s reasons or procedures.
Conclusion
Overall, while the Court is sympathetic to the concerns that the applicant has raised, the Court is satisfied that the Tribunal considered the facts of the case, the legislation it was required to examine and all of the evidence provided by the applicant.
The Court is also satisfied that the Tribunal’s decision to affirm the delegate’s decision was sound and open on the evidence before the Tribunal.
There is no jurisdictional error demonstrated by the 16 grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 29 May 2019
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