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 |
| 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…
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- Case
- [2018] FCCA 952
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the Tribunal had erred in affirming the visa cancellation. This involved determining whether the applicant had, in fact, breached condition 8105, and if so, whether the Tribunal had properly exercised its discretion in affirming the cancellation. The applicant contended that the log-on and log-off times from the taxi service did not accurately reflect actual working hours, as he had access to the vehicle for private use and sometimes failed to log off properly. He argued that the evidence did not conclusively prove he was working during the recorded hours.
Judge Riley reasoned that while the applicant admitted to the hours presented, he qualified this by stating that "working" only occurred when he had a passenger, not during periods of waiting or private use of the vehicle. The Tribunal had considered the applicant's submissions that the log-on and log-off times were not definitive proof of work, noting his access to the vehicle for private purposes and the possibility of not logging off. However, the Tribunal ultimately concluded that the perceived breach may have arisen from the applicant's access to the vehicle for private use and his failure to log off appropriately. The Court found no error in the Tribunal's approach to the evidence and the exercise of its discretion.
Consequently, the application filed by the applicant was dismissed. The applicant was also ordered to pay the first respondent's costs of the proceeding, fixed at $7,328.
Orders
Orders of the court
1.
The application filed on 15 September 2016 and amended on 10 May 2017 be dismissed.
2.
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
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
8.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In relation to the discretion to cancel the visa, the applicant’s submission said:Consideration of the discretion to cancel the visaThere 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 AustraliaThe 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 conditionsApart 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 decisionAs 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.