Aziz v Minister for Immigration
[2018] FCCA 952
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZIZ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 952 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – student (temporary) (class TU) (subclass 572) visa – cancellation – visa subject to condition 8105 which required that the applicant not work more than 40 hours per fortnight when his course was in session – Taxi Services Commission logs showing the applicant was logged on well in excess of 40 hours per fortnight when his course was in session – whether there was rationally probative evidence that the applicant was working when he claimed that he did not bother to log off – whether the Tribunal was bound to deal with arguments that were irrelevant or not clearly articulated. |
| Legislation: Migration Act 1958, s.116(1)(b) Migration Regulations 1994, condition 8105 of Schedule 8 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184 |
| Applicant: | NAUMAN AZIZ |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1985 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 March 2018 |
| Date of last submission: | 15 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| Counsel for the applicant: | Adam McBeth |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the first respondent: | Andrew Yuile |
| Counsel for the second respondent: | No appearance |
| Solicitors for respondents: | Sparke Helmore |
ORDERS
The application filed on 15 September 2016 and amended on 10 May 2017 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1985 of 2016
| NAUMAN AZIZ |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal 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) (subclass 572) visa pursuant to s.116(1)(b) of the Migration Act 1958.
The applicant’s visa was subject to condition 8105 of Schedule 8 of the Migration Regulations 1994 (“condition 8105”). That condition required that the applicant not work more than 40 hours per fortnight when his course was in session. In response to a request from the Minister, the Taxi Services Commission (“TSC”) sent the Minister a statement dated 27 October 2015 setting out the registration number of each taxi that the applicant had driven and the date and time of the start and end of each of his shifts, for the period 9 November 2014 to 27 October 2015. The statement indicated that the applicant had worked more than 40 hours per fortnight in 15 fortnights when his course was in session.
According to the notice of intention to consider cancellation of his visa, the applicant admitted in an initial interview on 4 November 2015 commencing at 10:13am that he had worked the hours detailed in the TSC statement (CB68). The notice said:
Evidence has been provided to the ABF that shows that from the period of 9/11/14 to 27/10/15 you have been driving a taxi under DC number 552175 in excess of 40 hours per fortnight. This is a clear breach of condition 8105 on your student visa. At initial interview with a ABF officer held on 4/11/15 commencing at 1013 hrs you admitted to the hours worked & to your DC number.
The record of decision included a summary of the applicant’s statement at the cancellation interview, which commenced at 10:40am on 4 November 2015. The summary was as follows (CB72):
I do not believe you should cancel the visa as the hours worked are not wholly worked hours as I was leaving my DC signed in but not taking passengers the whole time. I was visiting friends whilst I was logged on. I do admit to the hours presented to me but I only consider working is when I have a customer.
In relation to the reasons why his visa should not be cancelled, the record of decision noted that the applicant said at interview that:
Visa should not be cancelled as visa holder believes was only working when taking a passenger, not waiting for another pick up. Visa holder was staying logged on while visiting friends.
The delegate proceeded to cancel the applicant’s visa on 4 November 2015. The applicant applied to the Tribunal for review. The applicant was invited to a hearing on 5 August 2016. The applicant was given full access to the Tribunal’s file.
The applicant’s solicitor and migration agent sent the Tribunal a written submission dated 3 August 2016. In relation to whether the applicant breached condition 8105, the submission said:
1. The review applicants (sic) statement makes it clear that that (sic) log on and log off times reflected in Attachment 1 to his statement, which was relied upon by the delegate to cancel his student visa, did not reflect actual times worked as a taxi driver.
2. The applicant had access to the vehicle 24/7 and used the vehicle as his own private vehicle for private purposes and not related to work. He paid a lease fee of $360 per week to the depot who provided him with the vehicle and he has sole access to that vehicle.
3. The applicant states that he would log on when using the vehicle for personal and private purposes but more than often did not log off.
4. He states that he never drove during day time as this would interfere with his daytime studies. Attachment 1 supports this statement as it only shows log on times during evenings.
5. For it to be said that the applicant breached his student visa condition 8105, there must be probative evidence of that breach.
…
7 … The Attachment 1 showing the applicants (sic) log on and log off times during the relevant period shows nothing more than that. It does not show or demonstrate that the applicant was actually working during those times particularly given the fact that he had access to the vehicle 24/7 and for private purposes. Attachment 1 shows that on some occasions there 14hrs between the log on and log off times. It is inconceivable that a person could be driving for 14 hours straight without doing serious harm to others and himself. This tends to support the applicants (sic) statement that he would more than often not log off or forget to log off as the screen in the vehicle would go blank after a period of time thus failing to prompt him to log off should he want to do so.
In relation to the discretion to cancel the visa, the applicant’s submission said:
Consideration of the discretion to cancel the visa
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has regard to matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3).
The purpose of the visa holder's travel to and stay in Australia
The applicant has been successfully completing his courses of study in Australia. He has successfully completed the following courses:
·Certificate III in Engineering (Metal Fabrication) - completed
·Certificate IV in Business - completed
·Diploma of Management - completed
·Certificate III in Commercial Cookery - completed
He is currently completing his Certificate IV in Commercial Cookery to be followed by a Diploma and Advanced Diploma of Hospitality and an Advanced Diploma of Marketing.
There is nothing to suggest that the applicant has not been attending his courses or not meeting his course requirements.
He aspires to obtaining a position in the hospitality industry and pursuing a career in that industry once his courses are completed.
The extent of compliance with visa conditions
Apart from condition 8105, there is no evidence before the tribunal which suggests that the applicant has not been complying with his student visa conditions.
It is noted that Attachment 1 is confined to the period November 2014 - Oct 2015.
The circumstance in which the ground for cancellation arose - Were there any extenuating circumstances beyond the visa holder's control that led to the grounds existing.
The fact that the applicant had access to the vehicle 24/7 and for private purposes and given that Attachment 1, does not conclusively prove that the applicant was engaged in paid work for the times shown in Attachment 1, the tribunal is able to conclude that any perceived breach may have eventuated as a consequence of the applicant having access to the vehicle 24/7 and for private purposes and the fact that he failed to log off at appropriate times, may have contributed to an adverse finding that he had in fact breached his visa condition.
The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision
As the applicant has indicated in his statement, the cancellation of his student visa would force him to return to Pakistan without having completed the required qualifications which would enable him to secure good employment in his chosen career within the hospitality industry. Poor prospects of employment and any reasonable income are relevant factors for the tribunal to consider given that the applicant has only completed his Certificate III in Commercial Cookery thus far.
The visa holder's past and present behavior towards the Department (for example, whether a person has been truthful in statements or co-operative In their dealings with the Department)
The Tribunal has no evidence before it that the applicants' (sic) past and present behavior towards the Department has been untruthful or uncooperative.
In addition to the submission, the applicant provided to the Tribunal his own statement dated 29 July 2016. It was not a statutory declaration. The statement included the following:
7. At the relevant time in (sic) was driving a taxi at nights so there would be no interference with my studies. I only drove the taxi at night. I never drove a taxi during day times.
8. I was renting a taxi from a friend who manages a taxi depot.
9. I would pay approx. $300 per week to the depot and I would have use of the taxi on a permanent basis. I would be required to pay the $300 renal (sic) fee regardless of whether I worked or not.
10. The taxi would also be my personal vehicle to drive 7 days per week.
...
14. …
·The document shows times where I was logged on but not working or earning an income.
·The document shows that I was usually logged on for long hours, eg.13hrs and 14 hours at a time and it is impossible to work such long hours driving.
15. As I have previously mentioned the taxi was mine to drive 24/7 and it was also used as my personal vehicle. For example, when using it for personal purposes I would log on to use the GPS to obtain directions where I wanted to go or to locate the best route for any private travel I was doing. The Map in the taxi was a very sophisticated map that is not used by the general public so I would always log on and use the GPS when driving for personal purposes. Consequently, the document which is attached, also shows my personal and private use of the taxi. It is impossible to determine from the document which were my personal trips and which were not.
16. The document also shows times where I was logged on but was not driving. More often than not I would forget to log off when turning off the engine because the screen goes on stand by and the screen goes blank if it has not been used for a period of time (I think it was 30 minutes). Therefore, on many occasions when turning off the engine, the screen is also blank and I forget to log off.
17. Because the taxi was mine to use 24/7, I really never bothered to log off even when I had turned off the engine. The only times where drivers really need to log off, is when they are handing over a taxi to another driver who needs to log on with his own pin number. As I was not sharing the taxi with any other driver, I more often than not, would not log off.
18. I had regular clients that I would drive for. Many trips would be to the airport and it may be the only job I did for the entire day but I would do it because they were a regular client that I serviced. Despite the fact that it may be the only job for the day, the log on and log off times may show longer hours that the job actually took. For example, if I had to pick up a client for an airport job, I would sometimes have a coffee or dinner near the pickup destination but the record would show me as logged on. I recall I did this on many occasions, where I would catch up with friends for dinner well before picking up a client for a private job. The dinner itself could be for 2 hours prior to the job but the system would still show me logged on.
19. Visiting friends in between jobs would also show me as logged on. Sometimes I would have a job which would take me near a friend's place and I would take the opportunity to drop in to see my friends and have a coffee [and] a chat. If I had not seen my friends for some time, then my visit would be longer than usual (2-3 hours) but I would still be logged on.
20. Another example, would be when I have finished work for the night, I may visit a friend, go to dinner etc., but again, the system would show me as logged on.
21. Consequently, it is impossible to determine from the attached document how many hours I actually drove for work purposes.
22. I was aware of my obligations as a student and I was aware that I could not work more than 40 hours per fortnight. Consequently, I did not work more than 20 hours per week of (sic) 40 hours per fortnight where I was actually working as a taxi driver and attempting to earn an income from my driving. I do not work every day and when I do work it is only for about 2 - 2.5 hours per night. On some nights I do not make more than $50 but on other nights when it is busy I make much more so as to cover my lease payment for the vehicle and make some money for myself.
23. After finishing classes each day, I am usually very tired so I only work a couple of hours a night as I need to get to bed early as I have classes the next day.
24. By working 20 hours a week I was able to pay the $300 lease fee for the taxi as well as earn my own income on top of that. I have some regular clients who would always use me as their preferred driver. This trips were usually longer trips where I could make good money in a short period of time and they would always leave me a good tip on top of the fare because I always made myself available for them at short notice and looked after them.
The Tribunal’s reasons
The Tribunal noted that the TSC records showed that there were 15 fortnights when the applicant’s course was in session and he worked significantly more than 40 hours per fortnight. Those periods and hours worked were as follows:
a)10 November 2014 to 23 November 2014: 90 hours;
b)5 January 2015 to 18 January 2015: 133 hours;
c)19 January 2015 to 1 February 2015: 101 hours;
d)2 February 2015 to 15 February 2015: 95 hours;
e)16 February 2015 to 1 March 2015: 101 hours;
f)2 March 2015 to 15 March 2015: 113 hours;
g)6 April 2015 to 19 April 2015: 106 hours;
h)20 April 2015 to 3 May 2015: 126 hours;
i)4 May 2015 to 17 May 2015: 110 hours;
j)18 May 2015 to 31 May 2015: 101 hours;
k)1 June 2015 to 14 June 2015: 119 hours;
l)6 July 2015 to 19 July 2015: 100 hours;
m)20 July 2015 to 2 August 2015: 102 hours;
n)3 August 2015 to 16 August 2015: 103 hours; and
o)17 August 2015 to 30 August 2015: 78 hours.
The Tribunal considered the applicant’s claims but did not accept that they explained the huge number of hours worked in some fortnightly periods. The Tribunal did not accept as credible the applicant’s explanation for being unable to produce any pay records. That explanation was that he was only paid by customers in cash. The Tribunal did not accept the applicant’s claim that it was impossible that the applicant could have worked the hours advised by the TSC. The Tribunal accepted that the applicant may have sometimes visited friends and so on while logged on. However, the Tribunal did not accept that such activities explained the huge number of hours logged by the applicant. The Tribunal noted that the applicant’s claim that he was only working when he had a customer is contrary to case law. The Tribunal concluded that the applicant had breached condition 8105.
The Tribunal then considered whether to exercise its discretion to cancel the visa. The Tribunal said it had regard to the matters raised by the applicant and the matters set out in the departmental Procedures Advice Manual (“PAM3”). The Tribunal gave detailed consideration to a number of those matters. However, the Tribunal concluded that, in view of the circumstances as a whole, the applicant’s visa should be cancelled.
Ground 1
The first ground of review in the application filed on 15 September 2016 and amended on 10 May 2017 is:
The Tribunal made a jurisdictional error in making a finding that the applicant worked for more than 40 hours during a fortnight when his course was in session in the absence of evidence that could reasonably satisfy the Tribunal of that finding.
Particulars
(a)The discretion to cancel a visa under s116(1)(b) of the Migration Act 1958 is only enlivened once the decision maker is satisfied that the visa holder has not complied with a condition.
(b)The Tribunal found the applicant to have breached condition 8105 by working more than 40 hours in certain fortnights when his course was in session.
(c)The Tribunal made a finding based solely on the times that the applicant was logged into the taxi system. The applicant’s evidence was that he was logged into the system at times when he was not working. There was no evidence before the Tribunal to satisfy the Tribunal of the hours actually worked by the applicant.
This appeared to be a no evidence ground. However, the ground as articulated in the amended application had no prospect of success. There clearly was evidence, consisting of the TSC log records, that the applicant had worked more than 40 hours per fortnight in 15 fortnights when his course was in session.
However, at the hearing, the applicant explained that the ground was actually that:
a)there was no rationally probative evidence from which the Tribunal could have found that the applicant worked more than 40 hours in a fortnight when his course was in session; or
b)it was irrational for the Tribunal to make the finding it did, given the evidence it had before it.
The applicant relied on Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16. In SZMDS, Crennan and Bell JJ said:
130. In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
133. … the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …
134. The process of reasoning followed by the Tribunal, which needs to be considered in the light of all of the evidence set out above, was as follows: … The Tribunal essentially found that it was improbable that the first respondent feared persecution because of homosexuality as claimed. It is that conclusion which the Federal Court found illogical and irrational; it would have come to a different conclusion which appears to be largely based on the view that no-one in Pakistan would necessarily discover that the first respondent had, as claimed, engaged in the practice of homosexuality. The Federal Court differed from the Tribunal in finding that the first respondent's fear of persecution as a result of homosexuality was plausible whereas the Tribunal had found it improbable.
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
The Tribunal’s consideration of the question of the hours worked by the applicant was as follows:
17. The Tribunal has carefully considered the applicant’s comments and all the submissions of the agent; however it does not accept that they satisfactorily explain the huge number of working hours recorded in a large number of fortnight periods. The applicant said he would average $300-$400 per week after he paid his rent for the vehicle and the costs of fuel. The Tribunal asked the applicant if he had pay records from the taxi depot and he said it was all cash. He said sometimes customers would pay with cash and other times with EFTPOS and Cab Charge. The applicant said he used to have all the receipts and the owner would pay him the difference. He said the owner would pay him in cash and once or twice he transferred amounts to him. The Tribunal does not accept this explanation to be plausible or credible that there would not be records of payments to him through the owner and taxi depot. Whilst it notes that some customers do pay in cash, many pay by credit card or Cab Charge and that there would exist some form of record of payment to him from this and that he would not be simply paid in cash. The Tribunal considers the applicant’s evidence on this matter to detract from his credibility as such records would help establish the truthfulness of his claims as to the hours worked.
18. The Tribunal has carefully considered the records and the issue of whether it was possible for the applicant to have worked the hours that the Taxi Services Commission say he did taking into account that he was undertaking certificate level courses. The agent referred to 28 March 2015 as one of these dates where it is recorded that he worked until 6.41am that would have made it impossible for the applicant to have worked given his studies. The Tribunal notes that this date was a Saturday and that this would not have been impossible for him. The applicant told the Tribunal that he attended the courses only on Mondays and Tuesdays and on Wednesday mornings and after examining all of the records, the Tribunal considers it to have been very possible for the applicant to have worked the recorded hours and still have attended classes at VICAT.
19. The Tribunal has also taken into account the applicant’s explanations and whilst it accepts that there would have been periods where he had visited friends or was having a meal or indeed forgotten to have logged off or to have used the vehicle for personal means, the huge number of logged on and recorded hours lead it to be satisfied that the applicant worked well in excess of 40 hours per fortnight over many periods. It does not accept the applicant’s claims that he was only working 2 to 2.5 hours per night and he has not produced any other records to indicate how he was or thought he was complying with the condition.
20. The applicant has claimed that he only considered himself working when he had a customer. The Tribunal having regard to the case law and the definition of work as an activity that, in Australia, normally attracts remuneration and does not accept this to be the case for a taxi driver. It considers periods of time when the driver is available to pick up passengers either through the taxi depot or on the street or taxi ranks as being work and does not accept the applicant’s definition of work in his situation.
21.On the basis of the above evidence, the Tribunal finds that the applicant engaged in work in Australia for more than 40 hours a fortnight during fortnights when his course of study was in session. It also finds that the taxi driver work was not specified as a requirement of the cookery courses when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students. The Tribunal further finds as the applicant had been granted a Subclass 572 visa he was not otherwise exempt from the restriction as a Subclass 574 student.
The applicant’s argument was basically that the Tribunal could not accept the log as rationally probative evidence of the hours the applicant had worked, because he had given evidence that he did not work for all the hours that he was logged on. However, largely, the Tribunal did not accept the applicant’s evidence.
The Tribunal asked the applicant for pay records but he said he was only paid in cash. The Tribunal did not accept that, and considered that the applicant’s response detracted from his credibility about the hours he had worked. That credibility finding was not challenged.
The Tribunal considered the applicant’s claim that it was not possible to work all the hours shown in the log. However, the Tribunal considered that it was possible, and gave reasons for so concluding. That conclusion was not challenged.
The Tribunal considered the applicant’s claim that he sometimes stayed logged on even when he was having a meal, visiting friends, forgot to log off or was using a vehicle for personal purposes. The Tribunal accepted that the applicant may sometimes have done all of those things. However, the Tribunal did not accept that those activities explained the huge number of hours that the applicant was logged on. The applicant did challenge that finding, saying it was irrational in view of the applicant’s evidence. In my view, it was not irrational. With this argument the applicant is doing no more than challenging the merits of the decision.
The Tribunal also considered that the applicant’s argument that he was only working when he had a customer. The Tribunal rejected this argument, saying it was inconsistent with case law. This conclusion was not challenged. The Tribunal was correct in relation to this point.[1]
[1] Verma v Minister for Immigration and Border Protection [2017] FCCA 69 at [22].
The applicant argued that the only evidence before the Tribunal was the TSC log, and that did not prove working hours. However, the log is good evidence of working hours, unless it is displaced for some reason. In this case, the applicant sought to displace the evidence of the log with various claims about what he was doing rather than working. However, the Tribunal did not believe the applicant, or did not believe that the applicant’s other activities reduced his working hours below 40 per fortnight when his course was in session. Those findings were open to the Tribunal. They were not irrational. Ground 1 is not made out.
Ground 2
The second ground of review in the application filed on 15 September 2016 and amended on 10 May 2017 is:
The Tribunal failed to consider claims raised by the applicant in relation to the exercise of discretion not to cancel the visa.
Particulars
(a)The Tribunal was obliged to take into account all matters raised by the applicant in relation to the exercise of the Tribunal’s discretion not to cancel the applicant’s visa, having found a breach of a visa condition to have occurred.
(b)At the hearing before the Tribunal, the applicant submitted that this was the first time he had ever been accused of breaching any visa conditions and that he had never received a warning or any kind of sanction before meeting with the Minister’s delegate, who cancelled his visa in respect of this alleged breach.
(c)The applicant submitted that he was of good character, had no criminal record, had been the subject of no complaints in relation to his studies, and had had no problems in terms of his social interaction in Australia.
(d)None of these matters were taken into account by the Tribunal in deciding to exercise its discretion to affirm the decision to cancel the applicant’s visa.
The applicant argued that a failure to respond to a substantial, clearly articulated argument will amount to a jurisdictional error. The applicant relied on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 77 ALJR 1088; (2003) 24(9) Leg Rep 11; [2003] HCA 26 where it was said at [24] that:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
The applicant also relied on Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319; (2010) 123 ALD 244; (2010) 272 ALR 14; (2010) 85 ALJR 133; [2010] HCA 41 where it was said at [90] that:
Secondly, failing to address one of the claimed bases for the plaintiff's fear of persecution meant that the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations. The failure to deal with the claim was a denial of procedural fairness. (footnote omitted)
The applicant also relied on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105; (2001) 22(11) Leg Rep 2; [2001] HCA 30 where Gleeson CJ said at [10]:
The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, “sets out the findings” on any material questions of fact. It is impossible to read the expression “the findings” as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made. The construction of s 430 for which the respondents contend in effect eliminates the definite article from s 430(1)(c), treats “any” as meaning “all”, and finds in an express obligation to make a written record of findings of fact an implied obligation as to the ambit of the findings which must be made. None of this is impossible, but, like the meaning that the respondents attribute to s 476(1)(a), it is strained. When to that is added the incongruity associated with s 476(3)(e), and the problems of determining materiality on an “objective” basis in the context of legal review of a decision which commonly turns upon the Tribunal's assessment of the credibility of a person seeking to establish the status of a refugee, it is a construction I am unable to accept.
The applicant argued that the court should not read in to the Tribunal’s reasons for decision matters that it did not deal with, relying on Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; (2013) 136 ALD 547; [2013] FCAFC 114 where it was said that:
49. The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf at [10], [44], [69].
…
52.In the present case, the issue is squarely whether the Tribunal's reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant's claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
The applicant also relied on Kaur v Minister for Immigration and Border Protection (2014) 144 ALD 292; [2014] FCA 1046, where Mansfield J said:
28. ... In her response to the notification of intention to consider cancellation of the visa of 2 August 2013, the appellant said:
(1) she had done the extra work because her mother was sick, and so could not support her daughter the applicant as her mother had done when she was granted the visa, and her father’s death meant her mother was the supporter of all the family;
(2) she was unable to get support from her husband because of his health;
(3) she was trying to help and support her mother, in her mother’s condition, because she had previously supported the appellant;
(4) she had completed all her assessments and projects regularly and satisfactorily;
(5) she was penitent and would not breach the work limitation rules again, so she asked for a further chance.
Documentary material supported the claims about her father’s death, her mother’s illness from about January 2013 (the earliest medical evidence on the material about her mother), and her satisfactory and regular course progress.
29. In a letter to the Tribunal of 21 October 2013, and a separate undated letter but receipt stamped 16 October 2013, she also raised for consideration that:
(1) she was herself very stressed by the prospect of the visa being cancelled;
(2) she would have applied for a different visa if her intention was simply to work in Australia;
(3) she now has a new source of funding for her support while doing the course, through her father-in-law (supported by some fixed deposit receipts);
(4) she has an upbringing of strict behaviour, and her mother would be seriously distressed if she were to know about the cancellation of the visa.
…
34.The Tribunal at [28] of its reasons said the appellant had said she should be given one more chance, and it noted her submission that “her father was in the military in India and had died in army battle, and that her mother was in hospital“. It noted that documentary evidence substantiated that. As [29] then proceeds: the Tribunal “considered the factors raised by the applicant …” and found no matter raised about why the visa should not be cancelled. I have referred above to how I read that expression.
35. In my view, the minister’s submission does make more of the Tribunal’s reasons than is warranted. The sequence of its reasons appears in [27]–[30] quoted above. It is submitted that the Tribunal identified at [27] the matters it took into account, relevantly the considerations raised by the appellant, then referred expressly at [28] to two of them. While I have read [29] in the context of [30] as explained above, I do not consider that [27] and [28] mean that the Tribunal, while specifying two (or more accurately three) matters the appellant had raised, took into account all the matters raised by her. The sequence of expression, and the two paragraphs read together, in my view indicate the Tribunal in [27] identifies what it should take into account at a general level, that is without reference to particular matters. Then, at [28] it identifies what it understands are the matters identified by the appellant. Then, at [29] it considers those matters and the PAM3 guidelines. Then at [30] it reports on the result of balancing those matters. (emphasis added)
36. The Tribunal is not obliged to recite verbatim the matters in PAM3 or those raised by the appellant. But, in my view, the proper understanding of its reasons is that it did recite the matters it understood had been raised by the appellant. As is clear from the recital above, that was not by any means a comprehensive recital of those matters in fact raised by the appellant. (emphasis added)
The Tribunal said in paragraph 24 of the its reasons for decision that:
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has regard to matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). (emphasis added)
The Tribunal then dealt with various matters raised by the applicant under the headings specified in PAM3. The Tribunal then said in paragraph 39 of its reasons for decision:
Any other relevant matters
39. There are no other relevant matters.
The applicant did not take issue with the Tribunal’s handling of the matters set out in the applicant’s written submissions or personal statement. However, the applicant said that the Tribunal did not take into account some matters he raised orally at the Tribunal hearing. The applicant relied on a passage from the transcript of the Tribunal hearing which was as follows[2]:
[2] Page 16 of the transcript of the audio recording of the Tribunal’s hearing held on 5 August 2016 (“the transcript”). The transcript was annexed to the affidavit affirmed by Carina Ford on 9 May 2017.
Member: Okay. Is there any other factors you think I should take into account? Anything else?
Mr Aziz: You can see my whole record here, my history since I’m here, I haven’t breached any conditions, behavior wise, like no criminal record, nothing, no visa conditions before, no complaints, all my studies, from a social perspective, from everything [unintelligible 00:50:38]. So at least on those grounds there.
The applicant said that the Tribunal did not take into account some of those matters. The applicant accepted that the Tribunal had taken into account the claim that the applicant had not breached any other visa conditions. The Tribunal said at paragraph 27 of its reasons for decision that it gave that circumstance weight in the applicant’s favour.
However, at the hearing before this court, the applicant submitted that when he said from a social perspective, he meant that he had engaged in no anti-social behaviour since arriving in Australia. The applicant argued at the hearing before this court that the interpretation in the previous sentence was clear albeit with some ambiguity.
In my view, the applicant is now attempting to supplement the words he used at the Tribunal hearing and make them more intelligible than they were. In context, from a social perspective, was meaningless. It was not a clearly articulated argument in the Dranichnikov sense. The Tribunal was under no obligation to deal with it in its reasons for decision, or, indeed, to ask the applicant to clarify the point. The fact is that the applicant, through his advisers, had provided to the Tribunal detailed and articulate written submissions and a detailed and articulate personal statement relating to the discretion. The Tribunal was under no obligation to interpret statements made at the hearing that were essentially unintelligible.
The applicant also argued at the hearing before this court that the Tribunal failed to deal with his claims that:
So I didn’t know why authority she’s go to [unintelligible at 00:15:18], like I’ve never been to any police station or [unintelligible at 00:15:22] department like this before, so I had no idea, none of this stuff [unintelligible at 00:15:28] Immigration and stuff.[3]
…
[3] Page 6 of the transcript.
no criminal record, … no complaints …[4]
[4] Page 16 of the transcript.
Again, this is largely unintelligible, and did not need to be specifically addressed by the Tribunal in its reasons for decision. It does not meet the Dranichnikov test.
To the extent that the applicant was saying that his visa should not be cancelled because he did not have a criminal record and had never even been to a police station, the Minister submitted that it was irrelevant. I accept that submission. It may have been relevant, in a negative way, if the applicant had a criminal record. However, the absence of a criminal record is normal. It is not a factor that warrants particular accolades. Indeed, the applicant did not tell the court how the absence of a criminal record was relevant to a visa cancellation.
The applicant also argued that, if he had been warned about the capacity of the TSC to provide logs to the Minister, he would have been more careful about logging off. The applicant said he raised this with the Tribunal, but the Tribunal did not address the issue.
The applicant told the Tribunal[5]:
Yeah, but I didn’t know about the correlation of this thing, this log in/log off thing, with the limitation, like the actual working hours, which is 40 hours fortnightly. If I had would have known about this, I wouldn’t have logged it on in the first place.
[5] Page 13 of the transcript.
The Minister said at paragraph 26.1 of his written submissions that:
The applicant received a notice of intention to cancel and attended an interview about that. No issue is taken with that process and there was no requirement to give a warning about work practices. It is therefore irrelevant that the applicant might have changed his practices about logging on or off. (footnote omitted)
At the hearing before this court, the applicant argued that the Minister’s submission missed the point, because even if a clearly articulated point was irrelevant, the Tribunal was obliged to consider it. If that is so, the Tribunal did consider it, in the catch-all conclusion that:
39. There are no other relevant matters.
The Tribunal was not obliged to go into chapter and verse about why it rejected an irrelevant argument.
The applicant also said all my studies.[6] If he meant by this that he had completed a number of courses since coming to Australia, the Tribunal noted that at paragraph 25 of its reasons for decision.
[6] Page 16 of the transcript.
The Minister relied on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; (2003) 75 ALD 630; [2003] FCAFC 184, where the Full Court of the Federal Court (French, Sackville and Hely JJ) said:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
In my view, Kaur is distinguishable because the particular “submissions” raised by the applicant in this case did not need to be addressed. That is because they were not clearly articulated arguments or because they were irrelevant.
It may be thought that latitude should be given to an applicant in circumstances such as the present. However, the applicant was represented before the Tribunal by a migration agent who was also a barrister and solicitor. The agent provided detailed written submissions. There is no occasion in the present case to relax the requirement in Dranichnikov for a clearly articulated argument. Ground 2 is not made out.
Conclusion
As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 19 April 2018
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