El Chaar v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 655
•25 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
El Chaar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 655
File number(s): SYG 3262 of 2019 Judgment of: JUDGE LAING Date of judgment: 25 July 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming cancellation of the applicant’s student visa – whether the Tribunal’s decision was relevantly affected by legal unreasonableness or illogicality – application dismissed Legislation: Migration Act 1958 (Cth) ss 140 & 116(1)(b) Cases cited: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
DJW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 479
Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641
Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22
XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 783
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 2 July 2024 Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Teleo Lawyers Solicitor for the First Respondent: Mr L Dennis, Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3262 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MOUSTAFA EL CHAAR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
25 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) cancelling the applicant’s Subclass 500 (Student) visa (student visa). For the reasons that follow, the application to this Court must be dismissed.
BACKGROUND
The applicant is a citizen of Lebanon who was granted the student visa on 5 May 2017.
The Delegate cancelled the applicant’s student visa on 2 April 2019 under s 116(1)(b) of the Migration Act 1958 (Cth) (Act) on the basis that the applicant had failed to comply with a condition of the visa. The Delegate found that the applicant had not complied with condition 8202(2)(b) by failing to maintain enrolment in a registered course that would provide a qualification from the Australian Qualifications Framework (AQF) that was at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
On 10 April 2019, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 18 November 2019.
On 25 November 2019, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal was satisfied that a ground for cancellation existed. This was in circumstances where it found that the applicant’s enrolment in a course at AQF level 7 had been cancelled on 15 March 2018 and the applicant had not been enrolled in a full-time registered course of study at AQF level 7 or above since that time (at [17]-[19]).
The Tribunal proceeded to consider whether the visa should be cancelled.
The Tribunal considered the purpose of the applicant’s travel to and stay in Australia, and whether the applicant had a compelling need to travel to or remain in Australia, at [21]-[32] of its decision. Paragraph 22 is of particular relevance to the ground relied upon by the applicant in these proceedings:
22.… The applicant’s study history from April 2018 was not clear to the Tribunal hearing and, upon questioning, the applicant was unable to provide a clear response to the Tribunal about what study he had undertaken since that time. The applicant has filed two confirmation of enrolment documents for an Advanced Diploma of Business: one with a course duration from May 2018 to April 2019 and one with a course duration from May 2019 to May 2020. It appears from the applicant’s evidence at hearing that he was not satisfied with the course provider of these courses; he attended classes but did not complete any courses. The applicant filed a certificate for a Diploma of Leadership and Management dated 20 May 2019 but all subjects were completed on the basis of recognition of prior learning and therefore do not necessarily reflect any actual study undertaken by the applicant as such recognition can also be on the basis of work experience and the applicant has not supplied any confirmation of enrolment for that course with a completion date in May 2019. The applicant has filed two further confirmations of enrolments: one for a Diploma of Leadership and Management with a course duration from August 2019 to August 2020 and one for an Advanced Diploma of Leadership and Management from August 2020 to August 2021. The applicant gave evidence that he attends classes for a Diploma of Leadership and Management on Tuesday and Thursday. The Tribunal was considerably troubled by this evidence as the applicant already holds a certificate for a Diploma of Leadership and Management. When asked about this, the applicant’s evidence was that he had been advised to undertake this course and his agent enrolled him in it. The Tribunal finds it difficult to accept that an individual who states that they wish to remain onshore to progress their education would undertake a course which they already hold a certificate for. It appears to the Tribunal that the enrolment in this course has been taken in order to meet the enrolment condition of a student visa and maintain residence onshore, not for genuine academic progression. This raises concerns for the Tribunal about the applicant’s true intentions onshore.
The Tribunal was further concerned by an offer regarding enrolment in a Bachelor of Commerce that was provided on the morning of the Tribunal hearing. The dates conflicted with the Diploma of Leadership and Management course. The applicant’s evidence indicated that the document had been obtained for the hearing and not because the applicant intended to undertake the course (at [23]).
The Tribunal found that, taken as a whole, the applicant’s evidence raised serious concerns regarding his intentions and was not consistent with that of a genuine student (at [25]). Considering the applicant’s evidence, the Tribunal reasoned as follows at [29]-[32]:
29. … the lack of clarity surrounding the very course that the applicant was granted the visa to undertake is of serious concern for the Tribunal… Of greater concern is the fact that the applicant is studying a significantly lower level course than that for which he was granted the visa and which he already holds a certificate for, with an intention to undertake a second course at a lower level than that for which he was granted the visa and does not actually intend to pursue a tertiary level course until September 2020, a period of in excess of three years since his initial visa grant to undertake such course.
30.Given the lack of clarity surrounding, and delay in any intention to undertake, the proposed tertiary studies and the applicant’s career goal, it is difficult to conclude that there is a compelling need for the applicant to remain in Australia, particularly in circumstances where he is currently engaging with a course he already holds a certificate for.
31. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia. Further, whilst the Tribunal accepts that the applicant received problematic advice from his initial course provider, it also notes that the applicant has been onshore for in excess of three years and has had ample opportunity to engage with a Bachelor level course and will have options to complete further studies in Lebanon if he chooses. Further, it is a visa holder’s responsibility to ensure they are complying with their visa conditions at all times, even in circumstances where a course provider may have given misleading advice.
32. The Tribunal considers the applicant does not have any compelling need to remain in Australia as he could study a Bachelor course in his home country. The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 21-32.
The Tribunal accepted that the applicant may have received misguided advice but found that it was ultimately the applicant’s responsibility to ensure that he was complying with his visa conditions. The Tribunal gave equal weight in favour for and against cancelling the visa by reference to the circumstances in which the ground of cancellation arose (at [33]-[36]).
Although the Tribunal noted the applicant’s evidence that he had otherwise complied with his student visa conditions, it considered that the breach at issue was significant, spanning 11 months. This was given weight in favour of cancelling the visa (at [37]).
The Tribunal was concerned by the applicant’s reference to rights of appeal when questioned about hardship associated with the cancellation. However, the Tribunal accepted that some hardship may be experienced by the applicant and his family. This was given limited weight by the Tribunal, which found that it did not outweigh the breach of the visa condition (at [38]-[41]).
The Tribunal gave some weight to the applicant’s behaviour towards the Department against cancelling the visa. This is because the Tribunal found that there was nothing to indicate adverse conduct by the applicant in this regard (at [42]). The Tribunal considered that consequential cancellations under s 140 of the Act were not relevant to the applicant’s case (at [43]).
The Tribunal observed that as a result of cancellation, the applicant would be an unlawful non-citizen liable for detention and removal, whose ability to apply for further visas was limited. The applicant may also be subject to public interest criterion 4013 for three years, resulting in ineligibility for approval of temporary visas requiring this criterion to be met. The Tribunal gave this consideration little weight in favour of the applicant, noting that “these are the intended consequences of the legislation” and that the applicant would be able to apply for a bridging visa whilst making arrangements to depart Australia (at [44]).
The Tribunal considered that there was nothing to suggest that the cancellation would result in breach of any international obligations. The Tribunal therefore placed no weight on this in favour of or against the applicant (at [45]).
The Tribunal concluded that, considering the “circumstances as a whole”, the applicant’s student visa should be cancelled. Accordingly, the Tribunal affirmed the Delegate’s decision (at [47]-[48]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 11 December 2019. The applicant ultimately relied upon an amended application containing the following ground:
1. The Tribunal’s decision was legally unreasonable.
Particulars
a.At the time of the Tribunal’s decision, the applicant was enrolled in a Diploma of Leadership and Management.
b.The Tribunal found that this course was not at level AQF7 or above. The Tribunal noted that the applicant acknowledged and accepted that there are grounds for cancellation in these circumstances.
c.For this reason, the Tribunal found that the applicant did not meet the continuous enrolment condition on his visa and that a ground for cancellation of the visa exists.
d.The Tribunal then considered whether to exercise its discretion to cancel the visa.
e.At paragraph 22 the Tribunal states:
“The applicant gave evidence that he attends classes for a diploma in Leadership and Management on Tuesday and Thursday. The Tribunal was considerably troubled by this evidence as the applicant already holds a certificate for a Diploma of Leadership and Management. When asked about this, the applicant’s evidence was that he had been advised to undertake this course and his agent had enrolled him in it. The Tribunal finds it difficult to accept that an individual who states that they wish to remain onshore to progress their education would undertake a course which they already have a certificate for. It appears to the Tribunal that the enrolment in this course has been taken in order to meet the enrolment condition of a student visa and maintain residence onshore, not for genuine academic progression. This raises concerns for the Tribunal about the applicant’s true intentions onshore.”
f.It was illogical for the Tribunal to reason that the applicant was undertaking the Diploma of Leadership and Management in order to meet the enrolment condition of a student visa and maintain residence onshore in circumstances where it also found that course did not meet the enrolment condition of the student visa and that the applicant accepted this.
g.The Tribunal’s concerns about the applicant’s true intentions onshore was a critical factor in its decision not to exercise its discretion to refrain from cancelling the visa.
h.As a critical component of the exercise of the discretion was illogical, the Tribunal’s decision was legally unreasonable.
The applicant submitted that the Tribunal’s reasoning at [22], to the effect that he had enrolled in a diploma course simply to meet the enrolment criterion for the visa, was perverse. This was because the course did not meet the enrolment condition of the student visa (which required enrolment in an AQF7 level course). The perversity of this reasoning was said to be further highlighted by the fact that the applicant had enrolled in the course after the Delegate had cancelled his visa on the basis that he was not studying at the AQF7 level. In this regard, the applicant directed attention to submissions made on his behalf seeking to explain why he had been enrolled in lower level courses (as a pathway towards a course at the requisite level).
The applicant submitted that, on the facts accepted by the Tribunal, the applicant’s conduct was not consistent with simply trying to maintain residence onshore. Attention was drawn to the Tribunal’s acceptance that the applicant had previously received problematic advice regarding enrolment in lower level courses. The applicant submitted that the reasoning of the Tribunal that he was studying at the diploma level to maintain residence was also “inconsistent with its conclusion that the applicant had failed to meet his visa conditions as he was not studying at a sufficiently high level.”
The applicant relied upon Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33], where Gageler J (as his Honour then was) and Keane J stated at [33]:
33.The “satisfaction” required to found a valid exercise of the power to cancel a visa conferred by s 116(1)(b) of the Migration Act is a state of mind. It is a state of mind which must be formed reasonably and on a correct understanding of the law[30]. Equally, it is a state of mind which must be untainted by a material breach of any other express or implied condition of the valid exercise of that decision-making power…
(Footnotes omitted)
The applicant also relied upon Guggal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 641, in which O’Callaghan J accepted that a decision to cancel a visa under s 116(1)(b) is liable to be set aside for legal unreasonableness on the basis of illogical reasoning, and my decision in DJW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 479, where I considered that whether or not illogical reasoning is capable of revealing jurisdictional error depends upon the significance of the reasoning within the context of the Tribunal’s decision.
The threshold regarding illogicality has undergone varying consideration over the years: see for example BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [34] (Perram, Perry and O'Callaghan JJ); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 783 at [11]-[16] (Kennett J), Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [49]-[54] (Markovic, Meagher and Kennett JJ) and the cases referred to therein. Regardless of where its precise boundaries lie, it is clear that the impugned reasoning must, at least, be sufficiently significant within the context of the decision in question to be capable of demonstrating jurisdictional error. This understanding of the current state of the law was supported by the parties.
It is also clear that grounds such as illogicality and unreasonableness have high thresholds. Where probative evidence can give rise to different processes of reasoning, or if logical, rational or reasonable minds may differ in respect of the conclusions to be drawn from evidence, then a reviewing court is unable to find that a decision is illogical, irrational or unreasonable “simply because one conclusion has been preferred to another possible conclusion”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ (SZMDS).
I am not persuaded that it has been demonstrated in the present case that the Tribunal’s reasoning at [22] was logically unavailable or legally unreasonable.
I accept that a different Tribunal may have reasoned in a different manner. In circumstances where the Delegate had cancelled the applicant’s visa on the basis that the applicant was not studying at the AQF7 level, another decision maker may not have considered that it appeared that the enrolment had “been taken in order to meet the enrolment condition of a student visa and maintain residence onshore, not for genuine academic progression”. Instead, a different decision maker may have accepted the explanation proffered by the applicant’s representative regarding the reason for his enrolment (which was that he needed to undertake the course, for which a qualification had previously been granted on recognition of prior learning, in order for it to be used as academic credit towards a Bachelor’s degree).
It does not follow, however, that it was logically closed to the Tribunal to reason in the manner that it did.
It is clear that the Tribunal in this case was concerned by the fact that the applicant was enrolled in a type of course regarding which he had already obtained a qualification. This concern occurred in a context where the applicant’s visa had been cancelled for not studying at the requisite level, a fact regarding which the Tribunal was clearly cognisant and which was referenced elsewhere in its decision.
It was not clear to the Tribunal why the applicant had enrolled in the course, as opposed to commencing a Bachelor’s degree and obtaining credit for units undertaken through that degree. This was notwithstanding the explanations that had been proffered on behalf of the applicant, including that he had previously received misguided advice, and that he needed to undertake the course in order for it to be relied upon for academic credit for his Bachelor’s degree. On a fair reading of the Tribunal’s reasoning, it appears that the Tribunal wasn’t entirely satisfied by the explanations that had been given as to why the applicant had enrolled in the course, and was concerned that, instead, the enrolment may have been some attempt to exhibit behaviour consistent with a student visa. This was in the context of other concerns regarding the applicant’s credibility, which were considered at [23]-[32] of the Tribunal’s decision.
The applicant submitted that the reference to “a student visa” should be read as “the student visa” in [22]. This was submitted to be illogical, as the course the applicant had enrolled in was clearly incapable of meeting the enrolment criterion of the student visa in issue. As I discussed with the parties at the hearing, however, I am not certain that this interpretation of [22] is the correct one. To my mind, it appears that the Tribunal at [22] was concerned that the applicant’s motivation in enrolling in the course was to show that he was at least enrolled in some course (capable of meeting the enrolment criterion of a student visa, if not the cancelled one). The Tribunal’s concern was that this was in an attempt to persuade the Tribunal against cancellation of the visa on discretionary grounds (rather than because he had sought to progress academically).
In any event, even if the Tribunal had thought that the applicant had been attempting to meet the enrolment criterion of the student visa in question, I am not persuaded that it has been shown that this concern was logically closed to the Tribunal. Whilst the applicant’s representatives at the Tribunal stage accepted that the course was incapable of meeting condition 8202(2)(b), this does not establish that it was relevantly closed to the Tribunal to have been concerned that the applicant’s enrolment in that course may have been a (potentially misguided) attempt to make it appear that he could meet the enrolment criterion for the visa.
This is so even though the Delegate had cancelled his visa on the basis that the applicant was not enrolled at the AQF7 level. It was in circumstances where the applicant had nonetheless persisted in enrolling in a course at a lower level, and one in respect of which he had already obtained a qualification. The applicant had also indicated that he subsequently wished to pursue a further lower level course after its completion. His representative’s attempts to explain this to the Tribunal were made after the applicant had enrolled in the courses, and not by the applicant himself.
Having regard to the above, I am not persuaded that the applicant has demonstrated that the Tribunal’s reasoning was illogical or otherwise closed to the Tribunal.
Even if I had found that this aspect of the Tribunal’s reasoning was logically unavailable, I would not have been persuaded that the error was of sufficient significance that the ground relied upon by the applicant ought to succeed. As was observed in SZMDS at [130], “[n]ot every lapse of logic will give rise to jurisdictional error”. Minor lapses in logic of no real consequence within the context of a Tribunal’s decision will not be capable of sustaining a ground of illogicality or unreasonableness.
Even if the Tribunal in this case had not expressed a concern that the applicant may have enrolled in the diploma course “to meet the enrolment condition of a student visa”, it is apparent that the Tribunal was not satisfied that the applicant had enrolled in the course for academic purposes. The essence of the Tribunal’s concern was that the applicant had not enrolled for the purposes of academic progression, but to assist his case in a manner that would allow him to maintain residence in Australia. I am not persuaded that there was any realistic possibility of the Tribunal’s concern in this regard being allayed, or of the outcome of the Tribunal’s decision having been different, even if the Tribunal had not been specifically concerned that the applicant was motivated by the “enrolment criterion” for a visa. It is apparent, on any realistic reading of the Tribunal’s decision, that the Tribunal’s fundamental concern that the applicant had enrolled in the course for visa related purposes (rather than academic purposes) would have remained, even if its concern that the applicant was more specifically motivated by an “enrolment condition” had fallen away. This was in circumstances where the applicant had relied upon evidence of his enrolment as part of his case before the Tribunal, even if he ultimately accepted that this was incapable of meeting the enrolment condition for his particular visa.
I am therefore not satisfied that the error in logic contended by the applicant, even if demonstrated, was of the significance contended. Although the Tribunal made general references to relying upon its earlier reasoning at [25] and [32] of its decision, I have found above that the Tribunal’s general concern regarding the applicant’s motivations was logically available and was insufficiently dependent upon the specific reference to the enrolment criterion.
It follows that the sole ground relied upon by the applicant is unable to succeed.
CONCLUSION
For the above reasons, I am required to dismiss the application that is before the Court.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 25 July 2024
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