Bacaj v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1198

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bacaj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1198

File number(s): ADG 285 of 2022
Judgment of: JUDGE GERRARD
Date of judgment: 30 July 2025
Catchwords: MIGRATION – cancellation of Subclass 020 (Bridging B) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was bound to apply policy guidance in interpreting condition 8547 – whether the Tribunal was correct in not applying the policy guidance – unreasonableness – materiality – no jurisdictional error established – application dismissed    
Legislation:

Migration Act 1958 (Cth) ss 41(1), 41(2A), 116, 116(1)(g), 375A, 476, 499

Migration Regulations 1994 (Cth) Sch 1 regs 2.05(1), 2.05(4), 2.43(1)(oa), Sch 2 cl 020.611(5), Sch 8 condition 8547

Cases cited:

Aziz v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1397

Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459

DCM20 v Secretary, Department of Home Affairs [2020] FCA 1022

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43

Jabbour v Secretary, Department of Home Affairs (2019) 269 FCR 438

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Home Affairs v G (2019) 266 FCR 569

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25

Vishnumolakala v Minister for Immigration [2006] FMCA 1209

XA v Minister for Home Affairs (2019) 274 FCR 289

Division: Division 2 General Federal Law
Number of paragraphs: 60
Date of last submission/s: 4 April 2025
Date of hearing: 14 March 2025 and 16 May 2025
Place: Adelaide
Counsel for the Applicant: William Mellor
Solicitor for the Applicant: Work Visa Lawyers
Counsel for the First Respondent: Alex Chan
Solicitor for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 285 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

KRISTJAN BACAJ

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

30 JULY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.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 GERRARD:

INTRODUCTION

  1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal)

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AGLC
Bacaj v Minister for Immigration and Citizenship [2025] FedCFamC2G 1198
Case
[2025] FedCFamC2G 1198
Decision Date

CaseChat Overview and Summary

The case of Bacaj v Minister for Immigration and Citizenship involves the applicant, Bacaj, who sought to challenge the decision of the Administrative Appeals Tribunal (AAT) affirming the Minister’s decision to cancel his Subclass 020 (Bridging B) visa. The applicant argued that the AAT erred in not applying certain policy guidance in interpreting the visa condition 8547, which prohibits the holder from being employed by any employer for more than six months without prior permission. The Court had to determine whether the AAT was bound to apply the policy guidance and if there was any error in the AAT's approach to the policy.

The legal issues revolved around whether the AAT was obligated to apply the policy guidance in interpreting condition 8547 and whether the AAT correctly understood and applied the policy. The Court examined if the AAT's failure to apply the policy guidance amounted to an error of law, and whether such an error affected the outcome of the case. It also considered whether the AAT's decision was unreasonable, given its interpretation of the policy.

The Court found that the AAT was not required to follow the policy guidance and that there was no jurisdictional error in the AAT’s decision. The Court held that policy guidance, such as the one in question, does not have binding authority over the AAT. It emphasised that the AAT's role is to interpret and apply the legislation, not to be constrained by administrative policy. The Court further determined that the AAT did not misunderstand the policy and that even if it had applied the policy, it would not have changed the outcome. The Court concluded that the legislative intent of condition 8547 was clear and could not be displaced by policy guidance.

As a result, the Court dismissed the application, finding that none of the grounds for review established any jurisdictional error on the part of the AAT. The Court found that the applicant's submissions did not identify any material error in the AAT's decision-making process.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out below, the Court has not found any jurisdictional error in the Tribunal’s decision. On that basis, his application cannot succeed. BACKGROUND On 1 December 2016, the applicant first arrived in Australia as the holder of a Working Holiday (Subclass 417) visa (Court Book (CB) 31, 69). The applicant was born in Albania but is an Italian citizen (CB 179). The applicant applied for a Student (Subclass 500) visa which was refused by a delegate of the Minister on 20 December 2017. He was then granted a Bridging A visa whilst he sought review of that decision in the Tribunal (CB 69). The applicant then applied for a Bridging B (Subclass 020) visa (the visa) to allow him to travel outside of Australia (CB 69). On 5 July 2018, he was granted the visa (CB 12, 66, 248). This visa was subject to condition 8547, which is set out in Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) as follows:The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary. On 8 December 2020, a delegate of the Minister sent the applicant a Notice of intention to consider cancellation (NOICC) of his visa (CB 12-15). The NOICC stated that the ground for the visa cancellation as set out in section 116(1)(g) of the Migration Act 1958 (Cth) (the Act), when read with regulation 2.43(1)(oa) of the Regulations, appeared to be enlivened as a result of the applicant’s criminal conviction on 20 October 2020 (CB 13). Regulation 2.43(1)(oa) relevantly provides that certain bridging visas, including the one held by the applicant, may be cancelled if “the Minister is satisfied that the holder has been convicted of an offence against a law of … a State (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))” (CB 13). On 15 December 2020, the applicant appointed a lawyer as his authorised representative who provided submissions in response to the NOICC, as well as material relating to his conviction (CB 17-61). On 28 January 2021, a delegate of the Minister cancelled the applicant’s visa under s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations (CB 66-74). The delegate was ultimately satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa (CB 74). On 4 February 2021, the applicant applied to the Tribunal for review of the delegate’s decision (CB 75-82). The applicant appointed a new lawyer as his authorised representative (CB 83). On 10 August 2021, the Tribunal affirmed the delegate’s decision (CB 177-188). The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit and Family Court. On 24 November 2021, the Court remitted the matter to the Tribunal by consent, noting that the Tribunal had committed a jurisdictional error for failing to consider the applicant’s claim that he did not breach visa condition 8547 (condition 8547) (CB 189-190).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In any event, the Court accepts the Minister’s submission that even if the Tribunal had applied the policy guidance in interpreting condition 8547, it was bound to still find that the applicant breached condition 8547 as there was no dispute that he was employed by two employers for periods of seven and eight months, respectively. The Court is satisfied that the outcome would inevitably have been the same (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [16]). CONCLUSION As observed, the Court accepts the Minister’s primary submission that the policy was not binding and that it was within the Tribunal’s decisional freedom to not apply policy. On that basis, none of the applicant’s grounds can succeed. However, in any event, the Court is also not persuaded that the Tribunal misunderstood the policy in the manner suggested by the applicant. Furthermore, even on the applicant’s own construction of the policy, the Court finds it would not have assisted the applicant. Ultimately, though, whatever is stated in the policy could not displace the clear legislative intent expressed in the condition. The further amended application for review and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the Tribunal. Accordingly, the application is dismissed.

Ratio Decidendi

Legal Principle Established

The materials before the Court include:·The further amended application for judicial review filed by the applicant on 12 March 2025; ·The affidavit of Lochlan Reef MacNicol affirmed and filed on 8 November 2022 (taken as read and in evidence at the hearing on 16 May 2025); ·The affidavit of Trang Doan Vu affirmed and filed on 14 February 2025 (taken as read and in evidence at the hearing on 16 May 2025);·A Court Book numbering 256 pages (marked as Exhibit 1);·Written submissions filed on behalf of the applicant on 14 February 2025;·Further written submissions filed on behalf of the applicant on 28 March 2025;·Written submissions filed on behalf of the Minister on 28 February 2025; and·Further written submissions filed on behalf of the Minister on 4 April 2025. CONSIDERATION As outlined above, the amended application for judicial review contains three particularised grounds of review. Each ground takes issue with how the Tribunal interpreted and approached the policy guidance said to relate to condition 8547. The applicant contends that the Tribunal’s conclusion that the policy guidance was not applicable to the applicant’s visa was erroneous because it failed to take into account relevant material, reached a mistaken conclusion and was otherwise unreasonable. The Minister’s principle contention in response was that the Tribunal was not bound to follow policy guidance. For the reasons that follow, the Court is of the view that:(1)Firstly, the Tribunal was not required to follow the policy guidance and accordingly there can be no jurisdictional error following from a failure to follow the guidance;(2)Secondly, it is clear that the Tribunal did not follow the policy guidance because it specifically found it was not relevant to its decision. There was no error in the Tribunal so doing;(3)Thirdly, contrary to the applicant’s submission, there was no error in the Tribunal’s understanding of the policy guidance;(4)Fourthly, even if the applicant’s construction of the policy guidance is correct, it could not displace the clear legislative intent of the Regulations; and(5)Finally, even if the applicant’s construction of the policy guidance is correct, it could not have assisted the applicant in any event. In light of the above findings, none of the applicant’s grounds can succeed.Was the Tribunal bound to apply the policy guidance? The Minister raised as a threshold issue that it has long been established that the Tribunal is not bound to apply policy. In Vishnumolakala v Minister for Immigration and Multicultural Affairs [2006] FMCA 1209 at [27] (Vishnumolakala), the Court observed that policy guidance such as PAM3 is “no more than an advisory administrative guide to delegates” and that as a matter of law, it should not be afforded any higher status. Similarly, in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at [36], the Full Court of the Federal Court expressly accepted that a failure to apply the Procedures Manual does not constitute an error of law. Further, where the policy guidance may be inconsistent or go beyond the legislation, a decision will not be foreclosed in the way suggested by the policy (see Chow v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1459 at [10]).