FEDERAL CIRCUIT COURT OF AUSTRALIA
| GUL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2642 |
| Catchwords: MIGRATION – Judicial review – decision of former Migration Review Tribunal – Student Visa – whether Tribunal failed to conduct a review – whether Tribunal adopted decision of delegate – whether Tribunal applied relevant statutory criteria – whether Tribunal undertook a proper, genuine or realistic inquiry – whether Tribunal took into account irrelevant considerations – whether Tribunal failed to consider a relevant consideration or ignored relevant material. |
| Legislation: Education Services for Overseas Students Act 2000 (Cth) ss.19, 20 Migration Act 1958 (Cth), ss.116, 140, 349(2), 476 Migration Legislation Amendment Regulation 2013 (No.1) (Cth) |
| First Applicant: | SHABAB GUL |
| Second Applicant: | SUMAIRA NASEEM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 56 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 29 July 2014 |
| Date of Last Submission: | 29 July 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 October 2016 |
REPRESENTATION
| For the Applicants: | Mr Gul (the first applicant) |
| Counsel for the First Respondent: For the Second Respondent: | Mr P R Macliver Submitting appearance, save as to costs | |
| Solicitors for the Respondents: | Australian Government Solicitor | |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 56 of 2014
| SHABAB GUL |
First Applicant
| SUMAIRA NASEEM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, Shabab Gull (“Mr Gul”) and Sumaira Naseem (“Ms Naseem”), have applied for judicial review (“Judicial Review Application”) under s.476 of…
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- Case
- [2016] FCCA 2642
- Decision Date
CaseChat Overview and Summary
The court was required to determine two grounds of jurisdictional error. Firstly, whether the Tribunal adopted and affirmed a decision of a delegate that was itself affected by jurisdictional error, rendering it of no legal effect. Secondly, whether the Tribunal took into account irrelevant considerations. Mr. Gul argued that the delegate failed to properly address the statutory question regarding exceptional circumstances beyond his control that might excuse non-compliance with visa conditions, and that the delegate did not undertake a genuine inquiry into the facts of his case.
The court considered the principles of jurisdictional error as established in cases such as *Plaintiff S157/2002 v The Commonwealth of Australia* and *Minister for Immigration & Multicultural Affairs v Yusuf & Anor*. These principles indicate that jurisdictional error occurs when a tribunal identifies the wrong issue, asks the wrong question, ignores relevant material, or relies on irrelevant material, thereby exceeding or failing to exercise its statutory powers. The Minister argued that the Tribunal had conducted a fresh review of the delegate's decision on its merits, did not simply adopt the delegate's decision, and properly considered the evidence and exercised its discretion under section 116(1) of the *Migration Act 1958* (Cth) to cancel the visa. The Minister further contended that even if the delegate's decision contained jurisdictional error, the Tribunal's affirmation of that decision did not, in itself, constitute jurisdictional error on the Tribunal's part.
The court found that the Tribunal had not adopted the delegate's decision but had undertaken its own review of the merits. It was satisfied that Mr. Gul had not complied with Condition 8202(3)(a) of his student visa due to his education provider's certification of unsatisfactory course progress. The Tribunal then properly exercised its discretion under section 116(1) of the *Migration Act* to cancel the visa, a conclusion reasonably open on the evidence. Consequently, the court dismissed Mr. Gul's application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Judicial Review Application sets out two grounds and particulars as follows:The Second Respondent committed jurisdictional errors in that it:1.Adopted and affirmed a decision of a delegate of the Minister for Immigration which was itself affected by jurisdictional error and accordingly of no effect in law.2.took into account irrelevant considerations.Particulars of Jurisdictional Error of the delegate of the Minister for Immigration and CitizenshipThe delegate of the first respondent in his decision of 14 August 2013.(a)failed to properly address the statutory question posed by regulation r.2.43(2)(b)(ii) that included “(B) the non-compliance was not due to exceptional circumstances beyond the visa holder’s control”;(b)failed to undertake any proper, genuine or realistic inquiry to:(i) the ‘all of the facts of case of the case in total’ to ascertain whether the non-compliance of the condition 8202 was due to exceptional circumstances beyond the applicant control; and(ii) failed to apply the relevant statutory criteria objectively to the applicant’s situation and circumstances.c.Applicant submissions – ground 1(Transcribed from the Judicial Review Application without amendment) There were no particulars with respect to ground 2. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:a)identifies a wrong issue;b)asks the wrong question;c)ignores relevant material; ord)relies on irrelevant material,thereby affecting the Tribunal Decision and resulting in the Tribunal exceeding or failing to exercise the authority or powers given to it under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. Section 116(1)(b) of the Migration Act relevantly provided that the Minister may cancel the Student Visa if satisfied that Mr Gul has not complied with a condition of the Student Visa. Condition 8202 also relevantly provided that an applicant for a Student Visa who has not been certified by their education provider as not achieving satisfactory course progress as specified is in breach of Condition 8202: Condition 8202(3)(a). Mr Gul submits that the Tribunal fell into jurisdictional error by adopting the Delegate’s Decision which was itself affected by jurisdictional error. In particulars in support of the claim Mr Gul identified the date of the “Delegate’s Decision” as 14 August 2013. That date is the date of the First Tribunal Decision which was quashed by this Court on 25 October 2013. The Minister submits in relation to ground 1:a)there is no substance to Ground 1;b)whether or not the Delegate’s Decision was affected by jurisdictional error is irrelevant. The Delegate’s Decision has been reviewed on the merits by the Tribunal, and the Tribunal has made a fresh decision as to whether or not the Student Visa should be cancelled based upon the evidence and material before the Tribunal;c)the Second Tribunal Decision demonstrates that the Tribunal did not simply “adopt” the Delegate’s Decision, but considered afresh whether the Student Visa should or should not be cancelled;d)the Tribunal correctly concluded that, as a result of the PCBT’s certification that Mr Gul was not achieving satisfactory course progress in his Diploma of Business course, Mr Gul had not complied with Condition 8202(3)(a): CB 300 at [11];e)having found that Mr Gul had not complied with Condition 8202(3)(a) of the Student Visa, the Tribunal on reviewing the Delegate’s Decision was required to consider whether or not to exercise its discretion to cancel the visa pursuant to s.116(1) of the Migration Act. The Tribunal properly considered the exercise of its discretion, and its conclusion that the Student Visa should be cancelled was one that was reasonably open on the basis of the evidence and material before it; andf)having concluded that the Student Visa should be cancelled, the Tribunal was bound to affirm the Delegate’s Decision: Migration Act, s.349(2)(a). The fact that the Tribunal affirmed the Delegate’s Decision cannot of itself give rise to jurisdictional error on the part of the Tribunal, irrespective of whether the Delegate’s Decision involved jurisdictional error.