Iftikhar v Minister for Immigration

[2018] FCCA 2924

FEDERAL CIRCUIT COURT OF AUSTRALIA

IFTIKHAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2924

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – student visa – protection claims – findings open to the Tribunal on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Cases:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Applicant: AHMED IFTIKHAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2244 of 2016

Judgment of: Judge Hartnett

Hearing date: 4 October 2018

Delivered at: Melbourne

Delivered on: 17 October 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Roe

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2244 of 2016

AHMED IFTIKHAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application that was filed on 14 October 2016 seeking judicial review of a decision of the Second Respondent (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent (‘the delegate’) to cancel the Applicant’s Student Temporary (Class TU) Higher Education Sector (Subclass 573) visa (‘the visa’). 

2. The Applicant subsequently filed an amended application for judicial review on 14 June 2017.  The grounds on which the Applicant proceeds are as follows:-

   (1) The Tribunal erred in applying the incorrect test for the cancellation of the visa, in that it found that the applicant was in breach of regulation 573.223(1)(a) because he had applied for a protection visa while in Australia. 

   Particulars

   (a)the Tribunal erred in finding that “breach” of regulation 573.223(1)(a) is relevant to a decision to cancel a visa.  That provision is a criterion that must be satisfied at the time the visa is granted and is not applicable to a decision to cancel a visa for breach of condition 8202.

   (b)the Tribunal erred in finding that applying for a protection visa was a breach of regulation 573.223(1)(a).

(2)The Tribunal made a jurisdictional error in failing to consider a claim made by the applicant, namely the claim that the applicant had further reasons to fear persecution or significant harm that had arisen since his protection visa application was rejected by the delegate.

Particulars

(a)The Tribunal found that there were no international obligations relevant to the applicant’s circumstances, based on the fact that the Department had considered his claim for a protection visa and rejected it. 

(b)the Tribunal gave no consideration to claims raised by the applicant during the Tribunal hearing that events occurring in Pakistan after his protection visa application was rejected by the delegate gave rise to additional reasons to fear persecution and significant harm under and that Australia’s international obligations were therefore engaged.”

1. The First Respondent seeks dismissal of the application and that a costs order follow.  Each of the Applicant and First Respondent have filed written submissions and rely upon those.  The First Respondent also relies upon an affidavit affirmed by Ms Siran Jennifer Nyabally on 14 June 2017 to which there is annexed a transcript of the audio recording of the Tribunal hearing on 29 July 2016. 

2. The Court finds, for the reasons which follow, that the grounds as set out in the amended application of the Applicant are not made out. Accordingly, the application will be dismissed with costs. 

Background

1. The Applicant is a national of Pakistan.  On 20 May 2013 he was granted the visa.  He came to Australia to study business and management courses but only studied between June 2013 and October 2013.  He acknowledged in the Tribunal proceedings that he was not enrolled in a registered course between 2 December 2013 and July 2015.  He further confirmed before the Tribunal in his evidence that he had not actually studied since October 2013. 

2. For two months from July 2015 the Applicant studied a software development and information technology course. He had enrolled in this course, a Diploma of Information Technology, on 13 July 2015 after his application for a protection visa lodged by him on 9 June 2015, was refused on 30 June 2015.  At that time, he no longer had another application for a visa pending to enable him to apply for a bridging visa if his student visa was cancelled.

3. On 28 August 2015, the Department of Immigration and Border Protection (‘the Department’) issued to the Applicant a Notice of Intention to Consider Cancellation (‘NOICC’) pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The NOICC specified the ground for cancellation as:-

   “Condition 8202(2)(a) states the visa holder meets the requirement if the visa holder is enrolled in a registered course.  Based on evidence available to me in the Provider Registration and International Student Management Systems (PRISMS),  it appears that you have not been enrolled in a registered course of study from 3 December 2013 to 12 July 2015. Therefore, it appears you do not meet the requirements of condition 8202(2)(a).” 

4. The Applicant was invited to explain why he thought the grounds for cancellation did not exist and why the visa should not be cancelled. 

5. On 3 September 2015, the Applicant replied to the NOICC.  He advised the Department that he was a “senior member of a student political wing” in Karachi.  He stated further that there was a civil war in Karachi, and his parents had decided to send him to study in Australia.  However, whilst he was in Australia, the situation in Karachi was getting worse.  He decided, therefore, to apply for the protection visa. The Applicant claimed that his migration agent assisted him with the lodgement of his protection visa application and advised him that he could not study while his protection visa application was being processed. The Applicant claimed he followed his migration agent’s advice, and that was the reason for his lack of study between 2 December 2013 and 12 July 2015.  The Applicant also complained that his then migration agent failed to inform him about the refusal of his protection visa application and that as a consequence, he missed the date by which he could apply for merits review by the Tribunal.

6. On 16 September 2015, the delegate cancelled the visa. The delegate found that the Applicant did not meet condition 8202(2) of Schedule 8 to the Regulations in that, according to PRISMS’ records, he had not been enrolled in a registered course of study provided by an eligible education provider as required by cl.573.231 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) from 3 December 2013 to 12 July 2015. The delegate noted that the Applicant had only obtained a new enrolment in a higher education sector course on 13 July 2015, because his application for a protection visa was refused on 30 June 2015.

The Tribunal

1. On 22 September 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision.  On 29 July 2016, the Applicant appeared before the Tribunal to give evidence and present arguments.  The Applicant provided a copy of the delegate’s decision to the Tribunal.  On 12 September 2016, the Tribunal affirmed the decision under review. 

2. The Tribunal correctly set out in paragraph 5 of its Statement of Decision and Reasons (‘the Decision Record’), the issue that was before the Tribunal, namely, whether the Applicant, as the holder of a student visa, had breached condition 8202 of Schedule 8 to the Regulations, and if so, as set out in paragraph 11 of the Decision Record, the Tribunal was required to consider whether to exercise its discretion to cancel the visa. The Tribunal noted that under s.116(1) of the Act the visa may be cancelled.

3. The Tribunal discussed the Applicant’s study circumstances with him at the hearing.  At the hearing, the Applicant blamed his then migration agent for the errors he made, including incorrect advice about his study rights and in lodging his protection visa application.

4. Before the Tribunal, was the decision of the delegate, which referenced the PRISMS’ record that the Applicant was not enrolled in a registered course between 3 December 2013 and 12 July 2015; the Applicant’s written submissions; and the Applicant’s oral evidence at the hearing. The Tribunal found, as set out in paragraph 10 of the Decision Record, that the Applicant was not enrolled in a registered course between 3 December 2013 and 12 July 2015. The Tribunal found that the Applicant had not complied with condition 8202(2) of Schedule 8 to the Regulations. The Tribunal was satisfied that a ground existed to cancel the Applicant’s visa and then went on to consider, under the heading ‘Consideration of the Discretion to Cancel the Visa’, whether that discretion should be exercised by the Tribunal.

5. The Tribunal noted in paragraph 12 of the Decision Record that it had regard to matters raised by the Applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 

6. The Tribunal discussed with the Applicant his claim that his migration agent had misled him and caused him to have significant difficulties with his migration status.  The Tribunal noted, in paragraph 13 of the Decision Record, that the Applicant stated he was unable to pursue a Migration Agent Registration Authority (MARA) complaint because he did not have legal representation.  The Tribunal noted that statement was contrary to the actual finding of MARA which determined that the Applicant’s migration agent had not breached his obligations under the code of conduct and that the complaint was closed. 

7. The Tribunal reproduced in its Decision Record the Applicant’s post-hearing submissions (at paragraph 14).  Those submissions concerned the Applicant’s complaint as to the conduct of his migration agent which revolved around notification issues he allegedly had with his migration agent at the various addresses that the Applicant resided at. Additionally, the Applicant complained, that his migration agent suggested to him that instead of considering another course of study, he should apply for a protection visa.  This way, within six months, he could “study for almost free”.  The Applicant claimed that his migration agent told him that he “could not study in Australia while waiting for his protection visa to be determined”.

8. The Applicant provided to the Tribunal a copy of the advice and engagement letter from his migration agent, dated 11 December 2013, which also confirmed the lodgement of the Applicant’s protection visa.  The Tribunal noted that on the second page of the advice and engagement letter provided to it by the Applicant, the letter stated, relevantly:-

   “We draw your attention that any employment that you engage in without permission of DIBP is an offence under the Migration Act 1958 (Cth). As such, any such conduct of this nature will be prejudicial to your current application. Similarly, we draw your attention that you are required by law to apply for a protection visa.”[1]

   [1] Decision Record, paragraph 15.

9. The Tribunal noted that the first sentence of the above correspondence referenced the Applicant’s employment issues.  The sentence made no reference to any study rights that the Applicant may or may not have had.  The Tribunal noted that the final sentence of the above correspondence was an error. 

10. The Tribunal did not accept that the Applicant’s migration agent advised the Applicant to stop studying.  It found, instead, that the Applicant simply chose to stop studying. 

11. The Tribunal set out why it was that the Applicant’s decision to cease studying was a concern to it in paragraph 18 of the Decision Record.  The Tribunal noted that the Applicant chose to stop studying in Australia despite having the right and obligation to do so while holding his student visa.  The Tribunal noted the Applicant had claimed this was on advice that he would save money by studying when he had a permanent visa.  The Tribunal also noted that the Applicant had stated he was told he could not study although the evidence that the Applicant had provided to the Tribunal demonstrated that the advice pertained to employment, not study. 

12. The Tribunal did not accept that the reason the Applicant stopped studying was due to poor advice from his migration agent, but rather that the Applicant chose to stop studying to seek a protection visa. The Applicant himself stopped attending his classes despite his enrolment.  The Tribunal considered “… this decision to stop studying was his choice”, [2] and placed some weight on this aspect of the circumstances.

    [2] Decision Record, paragraph 18.

13. The Tribunal considered the Applicant’s re-enrolment in July 2015 was effected to seek to remain in Australia.  The Tribunal had concerns that this re-enrolment in a course not related to any post-school studies which the Applicant had previously completed or been enrolled in, was an attempt to gain enrolment, and not for a genuine reason to study.  The Tribunal noted, in paragraph 19 of the Decision Record, the Applicant had stated that he chose this enrolment over paying $7000 for a partner visa.  The Tribunal considered that the evidence of the Applicant, that he was weighing up his options to remain in Australia, ultimately choosing to pursue his student visa after 21 months of not studying, was “merely an attempt to seek to remain in Australia and not the actions of a genuine student”.[3] 

    [3] Decision Record, paragraph 19.

14. The Tribunal noted the Applicant had also claimed that his right to seek asylum in Australia had been denied because of his migration agent’s malpractice. The Applicant provided a copy of a letter sent by him to the First Respondent on 3 June 2013 asking for the Minister to intervene under s.48B of the Act because he was –

    “…not given the opportunity to respond to a DIBP Decision regarding my application for a protection visa.  Given the chance to fully explain my claims I believe I would have been eligible for a protection visa.” [4]

    [4] Decision Record, paragraph 20.

15. The Tribunal discussed with the Applicant his opportunity to seek asylum in Australia which the Tribunal noted was relevant to the consideration as to whether any international obligations existed in respect of the Applicant.  As set out in paragraph 23 of the Decision Record, the Tribunal did not consider that there were any international obligations relevant to the Applicant’s circumstances and so placed no weight on this aspect of the Applicant’s claims.  In doing so, the Tribunal expressly turned its mind to the current circumstances as they existed in Pakistan at the time of the decision. 

16. The Tribunal noted, in paragraph 25 of the Decision Record, its concern with the Applicant seeking a protection visa in Australia whilst holding his student visa.  The Tribunal noted that the provision of a student visa included the Regulation that the Applicant intends, genuinely, to stay in Australia temporarily. 

17. The Tribunal noted that applying for a permanent protection visa was contrary to reg.573.223(1)(a) of the Regulations, which applied to the Applicant’s visa.

18. The Tribunal explained the difficulty of giving the Applicant a student visa in circumstances where the Applicant had otherwise stated that he wished to remain in Australia and did not wish to go back to Pakistan.  The Tribunal referred to the Applicant stating that he had a girlfriend and had commenced a new life in Australia, that he was a very good cricket player, that he was not sure about the future in Pakistan and that it might get better, but he had heard about a friend who had been kidnapped in 2016.  The Applicant wanted to stay in Australia.  The Tribunal found that the Applicant’s application for a protection visa and his statements that he did not wish to return to Pakistan were clear examples of him breaching the genuine temporary entrant provisions, the word ‘breaching’ being seized upon by the Applicant in an over-zealous scrutiny of the Tribunal’s Decision Record.[5]

    [5] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, 31.

19. The Tribunal considered the Applicant’s study history in Pakistan and in Australia.  It noted that the Applicant could seek to continue his studies in Information Technology in Pakistan. 

20. In considering its discretion whether the visa should be cancelled the Tribunal noted the Applicant’s evidence that his father ran a travel agency, which is now closed “because of criminal issues”.  The Tribunal noted it had limited information before it about the Applicant’s personal circumstances in Pakistan.  It considered this not to be a reason not to cancel the Applicant’s visa.

21. The Tribunal placed little weight on the Applicant’s limited evidence about his relationship with his girlfriend in Australia and the Applicant’s statement that he was a genuine student because he “could have tried to apply for a partner visa, but chose to invest his money in the July 2015 enrolment”.

22. Considering the circumstances as a whole, the Tribunal concluded that the visa should be cancelled and affirmed the decision of the delegate.

Consideration

Ground One

1. The Tribunal found that the Applicant had breached condition 8202 of Schedule 8 to the Regulations. Having found that condition 8202 had been breached, the question for the Tribunal was whether to exercise the discretion to cancel the Applicant’s visa under s.116 of the Act.

2. The Tribunal correctly noted that there were no grounds specified in either the Act or the Regulations that are required to be considered in the exercise of the s.116 of the Act discretion, but the Tribunal had regard to the matters raised by the Applicant in the hearing and the government policy guidelines in PAM3.

3. It is a relevant consideration under the PAM3 guidelines to take into account the extent of the Applicant’s non-compliance with any conditions subject to which the Applicant’s visa was granted.  Whether the Applicant continued to be “a genuine Applicant for entry and stay as a student” as required by cl.573.223(1)(a) of the Regulations was a relevant matter to be taken into account in the exercise of the Tribunal’s discretion under s.116 of the Act, because condition 8516, which attaches to student visas, requires that an Applicant continue to satisfy the requirements for the grant of a student visa. It is clear in the Tribunal Decision Record and, in particular, at paragraphs 25 to 27 that the Tribunal was engaging in the task of considering the above described matter.

4. The Tribunal, in its considerations, was able to and did take into account a broad range of factors pertinent to the Applicant in exercising its discretion to cancel his visa, including, the fact that the Applicant would not continue to meet cl.573.223(1)(a) of the Regulations and had, therefore, breached a further condition of his visa. The use of the word “breach” complained about by the Applicant as being an error of law was not an error of law and was plainly a reference to condition 8516.  Further, it is apparent from the Tribunal’s reasons at paragraph 26 of the Decision Record, that it considered the Applicant’s intention to remain in Australia more broadly, having regard to other statements made by the Applicant that he did not want to return to Pakistan; that he had a girlfriend in Australia; and that he was not sure about his future in Pakistan.  The Tribunal further acknowledged that having an intention to remain in Australia does not automatically mean that the Applicant would “breach” that Regulation.  Again, the Tribunal’s use of the word breach in this context was not jurisdictional error.  The Tribunal’s reasons, read fairly and as a whole, make clear that no jurisdictional error attends the Tribunal decision in this regard.

1. In respect of the remaining part of ground 1, being the allegation that there is no evidence in the Tribunal’s Decision Record that it had regard to Ministerial Direction Number 53 because it is not expressly referred to, nor are the factors in the direction canvassed in the Decision Record, the Court finds no jurisdictional error in respect of this ground. The Tribunal was not obliged to consider, in deciding whether to exercise its discretion to cancel the Applicant’s visa under s.116 of the Act, Ministerial Direction Number 53 which is as follows:-

   “This Direction applies to delegates performing functions or exercising powers under section 65 of the Migration Act 1958 (“the Act”) in relation to assessing the genuine temporary entrant criterion at Schedule 2 to the Migration Regulations 1994 (“the Regulations”) for Student visa applications. This Direction also applies to members of the Migration Review Tribunal and the Administrative Appeals Tribunal who review the decisions of primary decision makers in relation to Student visa applications. The genuine temporary entrant criterion must be satisfied by all applicants who make an application for a Class TU (Student) (Temporary) visa on or after 5 November 2011, except for applicants for permission to work (being persons who hold a Student visa subject to condition 8101 that was granted before 26 April 2008 and who have applied for a Student visa with permission to work) and secondary applicants for the Subclass 580 (Student Guardian) visa.”

2. As can be observed, the Ministerial Direction does not state that it is to apply to the cancellation of student visas, including those which require satisfaction of the genuine temporary entrant criterion.

3. The Applicant also alleges the Tribunal was not entitled to take into account the fact that the Applicant had lodged a protection visa application in considering whether the Applicant intended to genuinely stay in Australia temporarily. As submitted by the First Respondent, there is no basis for the Applicant’s submission that the Tribunal was not permitted to take this matter into account in the exercise of the broad discretion under s.116 of the Act, nor is there any basis to allege that the Tribunal’s finding on this point was irrational or illogical.

Ground Two

1. The second ground of review alleges that the Tribunal failed to consider the Applicant’s claim to fear persecution or significant harm.

2. At paragraph 28 of the Decision Record, the Tribunal notes that it had asked the Applicant about his circumstances in Pakistan, including the issue of him returning.  However, the Tribunal found that the Applicant’s claim to fear harm had been assessed legally and that he had been found not to have a real chance or real risk of harm occurring.

3. The Tribunal also considered the Applicant’s claim that his right to seek asylum in Australia had been denied because of his migration agent’s malpractice.  However, the Tribunal found the fact the Applicant did not exercise his right to review the decision of the delegate to refuse to grant him a protection visa did not mean that the Applicant was denied the right to seek asylum.  The Tribunal noted in the Decision Record at paragraph 22, that the Applicant had attended an interview with the delegate and had the opportunity to explain why he did not believe he could not return to Pakistan.  The delegate did not accept the Applicant’s claims.  The fact that the Applicant did not seek to review the decision of the Department, the Tribunal determined, was not a reason to refuse the application before it.  Further, the Tribunal considered that Australia’s obligations to the Applicant pursuant to the Refugees Convention had been met and it did not consider Australia to have any complementary protection obligations in relation to the Applicant.  The Tribunal did not otherwise consider that there were any international obligations relevant to the Applicant’s circumstances.

4. It is also evident that at the Tribunal hearing the Tribunal discussed with the Applicant his claims to fear harm upon return to Pakistan at some length, including with reference to current country information.  The evidence as to this is before the Court in ‘Annexure SJN1’ to the affidavit affirmed by Ms Nyabally.  The Tribunal observed on the basis of the country information before it that the current situation in Karachi as at the time of the Tribunal hearing had significantly improved, and that rangers had “cleared up a lot of violence in Karachi.”  The Applicant noted that the “rangers” were capturing and targeting most of the party members, which the Applicant claimed to be affiliated with the “APM” and the Muttahida Qaumi Movement (MQM) members.  However, the Tribunal then noted to the Applicant that the rangers targeted MQM because they were involved in criminal activity.  The following exchange then took place:-

   “APPLICANT:  Yeah, but not everyone is criminal.  If I go back I don’t have problem with the rangers because I am not a criminal.

   TRIBUNAL:  So then you’re not going to have a problem in Pakistan.

   APPLICANT:  But I am going to have a problem because every other elements I mentioned in my Protection Visa before –

   TRIBUNAL:  But I don’t have your Protection Visa and this is not a Protection Visa application.

   APPLICANT:  Yeah, but –

   TRIBUNAL:  I don’t have … this is a Student Visa.”[6]

   [6] Affidavit of Ms Siran Nyabally, annexure SJN1, 9.

5. The Tribunal later stated in response to further matters raised by the Applicant, “It’s not another protection claim.  This is not your excuse to do a protection claim.”[7] 

   [7] Ibid 12.

6. The Applicant conceded in paragraph 31 of the Applicant’s submissions, that consideration of the factors as to whether Australia had international obligations that would or may be breached as a result of cancelling the visa as an aspect of the discretion not to cancel a student visa under s.116 of the Act was not intended to be a thorough consideration of an Applicant’s claims for protection. The Applicant argued, however, that the prospect of engaging such non-refoulement obligations and exposing a person to persecution or significant harm was a compelling reason not to cancel the person’s visa.

7. It was clearly open to the Tribunal to take into account the fact the Applicant had previously lodged a protection visa application and that the application had been refused.  The Tribunal was not required in the circumstances of the case with which it was dealing to separately assess the Applicant’s claims to fear harm following the protection visa refusal process.  The Court accepts the submission of the First Respondent that the fact that the Applicant had previously had a protection visa refused was a sufficient basis to find that no protection obligations were owed to the Applicant, as found by the Tribunal at paragraphs 22 and 23 of the Decision Record.

8. The Applicant argued that it was open to the Tribunal to consider his new claims for protection made post-those made before the delegate in the Applicant’s application lodged in December 2013, and in his subsequent interview, and to find that those claims did or did not engage Australia’s international non-refoulement obligations in the course of the exercise of the s.116 of the Act discretion. The Applicant argued that the Tribunal, however, simply failed to consider any aspect of the protection claims that arose after the delegate’s decision. The Court finds that argument is not supported by an examination of the Tribunal decision. Indeed, the Tribunal considered the aspects of the protection claims as put before it by the Applicant, and by reference to then current country information, but determined that there was nothing that would alter the earlier determination of the delegate.

9. No jurisdictional error attends the decision of the Tribunal.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 October 2018