Motaleb v Minister for Home Affairs
[2019] FCCA 3757
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOTALEB v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3757 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa cancellation – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Home Affairs to cancel the applicant’s Student (Temporary) (Class TU) (Subclass 573) visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) – applicant asserted that Administrative Appeals Tribunal had failed to take into consideration his compelling and exceptional circumstances and that its decision lacked evident justification and was unreasonable – Administrative Appeals Tribunal Decision Record reflects a meaningful consideration of the applicant’s claims – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 |
| Applicant: | MOHAMMAD SAMIR MOTALEB |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 993 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 10 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr D. Clarke |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 23 April 2019 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $7,467.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 6 February 2020 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 993 of 2019
| MOHAMMAD SAMIR MOTALEB |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Pakistan aged 26 years, having been born on 25 February 1993.
By Application filed on 23 April 2019 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 26 March 2019 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 19 January 2017 cancelling the Applicant’s Student (Temporary) (Class TU) (Subclass 573) visa (Student visa).
Background
The Applicant was granted a Student visa on 19 May 2014 which was valid until 27 July 2017, and arrived in Australia on 14 June 2014 with the purpose of studying a degree of Bachelor of Business, majoring in Information Technology. He began such a degree but then moved to TAFE to study a Bachelor of Information Technology, which was to extend for three years, of which the Applicant completed about one year.
The Applicant returned to Pakistan in February 2015 to attend a wedding and was involved in an incident that led to his arrest, resulting in him being charged with sexual abuse of a minor, and the police mistreated and roughly handled him in jail. The father of a friend bribed the police to allow the Applicant to return to Australia.
Then on 30 July 2015 he applied for a Protection (Class XA) (Subclass 866) visa which was refused by a Delegate on 12 August 2016 and from which decision he did not seek merits review with the Tribunal. It was not in dispute before the Delegate, the Tribunal or in this Court that the Applicant was not involved in a registered course of study for a period of some nine months from 21 March 2016 to 21 December 2016, and was therefore in breach of Condition 8202 of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) to which his Student visa was subject, as Condition 8202(2)(a) required him to be enrolled in a full-time registered course of study.
Accordingly, by reason of his breach of Condition 8202, the Minister was empowered under s.116(1)(b) of the Migration Act 1958 (Cth) (the Act) to cancel the Student visa.
By Notice of Intention to Consider Cancellation (NOICC) dated 21 December 2016 the Department of the Minister (Department) advised the Applicant that he appeared to be in breach of Condition 8202 and extended an opportunity for him to comment on the grounds identified in the NOICC and to give reasons why his Student visa should not be cancelled.
By email dated 11 January 2017 the Applicant responded to the NOICC, as follows:
Dear Sir,
Thanks for your letter. Before cancelling my visa, I want you to consider my circumstances behind my absence from the college. I was suffering by mental illness because when I was to Pakistan 2 years ago, I was arrested and then tortured by the Police. I have a proof that I had lodged the Protection Visa Application when I came back to Australia.
I went to the doctor and he prescribed me medicine. I was on medication and I was unable to attend the college due to my poor mental health condition.
I beg you to please consider my circumstances as this is the matter of my future. If you do cancel my visa, it would ruin my carrier. My life is already damaged and I am under great depression. So, please consider my application.
I enclose the evidence of my medical check-up.
Yours faithfully,
Mohammad Samir Motaleb
Decision of Delegate
The core findings of the Delegate were expressed in her Decision Record, as follows:
The visa holder has advised he was unable to attend college due to suffering from mental illness which was the result of been tortured by police.
The visa holder has provided a prescription dated 10 May 2016, an authorisation for medication letter dated 10 May 2016, and a Specialist referral letter from GP DR Mustapha J. Alameddin dated 14 January 2017.
While I acknowledge the visa holder’s mental anguish suffered due to the situation back home, there is no evidence to suggest the visa holder actively sought professional help to manage his mental distress since the incident two years ago.
Based on the evidence provided by the visa holder it appears he only took action to seek professional help by obtaining a referral on 14 January 2017, after the Notice of intention to consider cancellation (NOICC) was issued. This indicates to me the visa holder only took action to manage his mental illness after the NOICC was issued.
The visa holder made claims that he was arrested and tortured by Police; therefore he lodged a Protection visa. The visa holder’s claims were assessed in the protection visa application and outcome was made to refuse the protection visa.
I give these considerations little weight in the visa holder’s favour.
The visa holder has advised cancellation of his Student visa would result in a ruined career.
Based on the Provider Registration and International Management System (PRISMS), the visa holder has not successfully completed a course of study since first entry into Australia on 14 June 2014 and the visa holder has not been enrolled in a registered course of study since 21 March 2016.
The above information indicates the visa holder has not made the effort to continue his studies which may have enabled him to possibly have a successful career.
While failure to complete the current qualification may be a setback for the visa holder, I note that there is no evidence to suggest the visa holder could not complete his studies outside of Australia.
I give this consideration no weight in the visa holder’s favour.
Having considered the evidence before me, I am satisfied that I have considered all of the relevant additional factors. Having considered these factors, I am satisfied that there is little weight to make a decision to not cancel the visa.
Accordingly, the Delegate cancelled the Student visa.
Decision of Tribunal
The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 27 January 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
The Applicant then appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. Prior to that hearing he had submitted a body of materials to the Tribunal, including medical accounts, prescriptions, a report from a psychiatrist and course offers from educational establishments.
At [3] – [6] of its Decision Record the Tribunal recorded the background to its review. At [4] it recorded the documentary evidence submitted by the Applicant to the Tribunal and at [5] the evidence earlier submitted to the Delegate.
Then from [7] – [14] of its Decision Record the Tribunal recorded the discussion that had taken place at the hearing before it. At [16] – [35] the Tribunal set out its consideration and evaluation of the Applicant’s claims, stating at [18] as follows:
[18] The applicant did not dispute that he was not enrolled to study for a period of 9 months, from 21 March to 21 December 2016. The applicant advised he was suffering from mental distress and was unable to study at the relevant time. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
The Tribunal then turned, commencing at [19] of its Decision Record, to consider the exercise of its discretion as to whether or not to cancel the Student visa, noting that there were no matters specified in the Act or Regulations that were required to be considered in relation to the exercise of this discretion. The Tribunal recorded that it had regard to the matters raised by the Applicant as to why the Student visa should not be cancelled and Government policy guidelines contained in the Department of the Minister’s Procedures Advice Manual 3 (PAM3), which included circumstances beyond the Applicant’s control that had caused the breach of Condition 8202(2)(a): see [19] of the Decision Record.
Then at [21] of its Decision Record the Tribunal recorded as follows:
[21] During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. In response the applicant said he wants to be able to demonstrate that he is capable of studying. He said he also needs to provide support to his friend's uncle in Australia who is disabled because his friend is not in Australia at present. A statement and medical report was submitted from Mr lmran Yousaf advising the applicant assists in his care. While the Tribunal accepts the applicant may wish to continue studying, from his evidence it appear he wants to do so primarily because he has no other option to remain in Australia. The applicant was previously hoping to be granted a Protection Visa but his application was refused. The applicant now claims he will be able to return to Pakistan in future to pursue a career because his legal issue is no longer a threat. The Tribunal is not satisfied the applicant wants to continue studying for genuine purposes. Regarding his role in assisting his friend's uncle, student visas allow overseas students to study and progress academically; they are not granted for the purpose of providing care to another person.
At [27] – [29] of its Decision Record the Tribunal stated as follows:
[27] The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of 9 months between March and December 2016. The applicant made submissions regarding the circumstances in which the grounds for cancellation arose. According to his evidence, the applicant had returned to Pakistan with a friend for a wedding but during his visit, he was accused of a crime, arrested and detained by police. These events were the subject of a Protection Visa application after the applicant returned to Australia which was ultimately unsuccessful. The applicant submitted medical evidence, a psychologist's report and copies of prescriptions for medication in support of his reasons for failing to study during the relevant period. He also provided a copy of a Magistrate's Court Report from Pakistan with translation from 18 February 2015. The Tribunal notes the medical evidence if primarily from two years after the events that the applicant claims were the reason for his failure to study. The psychiatrist’s report dated 5 April 2017 states the applicant developed an adjustment disorder with anxiety and depression as a result of the charges against him in Pakistan. It is understandable these issues caused a disturbance to the applicant, however, as stated; the assessment of him was conducted two years after the events. The applicant said that during the period when he was not studying, he tried get himself on track by meeting with friends and studying by himself, although he did not explain what he was studying at the time. The Tribunal does not accept this was an adequate response to the situation given he was in breach of visa conditions.
[28]The Tribunal accepts the applicant was faced with a personal problem in 2015 as a result of charges against him in Pakistan. Nevertheless, the applicant's response to these matters was within his control. The issues faced by the applicant, while stressful and likely to be disruptive for a period of time, are not adequate reasons for the applicant to stay in Australia while failing to comply with the conditions of his student visa and failing to study over a long period of time. It was open to him to defer his studies or seek compassionate leave in order to deal with these issues, or because of ill health but it appears this did not occur.
[29] The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study or seek a deferment of his studies during the period when he was not enrolled, in breach of visa conditions. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
Then at [36] of its Decision Record the Tribunal recorded its conclusion:
[36] The Tribunal has considered the applicant's circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant's case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.
Accordingly, the Tribunal affirmed the decision of the Delegate to cancel the Student visa.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied upon the following Grounds:
1. The Tribunal acted contrary to my evidence and contrary to the submitted information listed in point 4 page 2 of the decision.
2. The Tribunal decision is affected by error of law because the Member failed to see that circumstances were beyond my control as to when my visa was cancelled even though I completed Certificate IV in Telecommunications Engineering Technology dated 22 June 2018 as well as TAFE NSW Academic Transcript dated 29 January 2019.
3. The Tribunal was made aware of what happened to me in Pakistan even though I did not dispute that I was not enrolled to study for a period of 9 months from 21 March to 21 December 2016 that was due to my suffering from mental distress as a result of what happened to me in Pakistan yet the Member did not dispute the circumstances which affected my studies at the time but failed to act on the compelling and exceptional circumstances which were beyond my control and which affected my studies.
4. I do accept that my non- attendance for 9 months was fundamental breach of student visa but what I went through was also fundamental and beyond my control yet the Tribunal failed to consider in my favour and has no basis for not to do so.
5. I, at one stage, applied for protection visa which was later refused and I did not review the refusal because I had the intention to study and as a matter of fact I completed Certificate IV and had the genuine intention to continue my studies as I believe I am a genuine student and the Tribunal misapprehended my genuine intention and the Tribunal finding is not reasonable based on the evidence provided.
6. The Tribunal decision lacks evident justification and is unreasonable.
Consideration
Ground 1
This Ground appears to comprise an attempt to seek merits review of the Tribunal’s decision which is not available in this Court. Further, it is well established that the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration and Citizenship [2011] FCA 1243 at [13] where Flick J said:
[13] …The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone…
In my view, the Tribunal meaningfully considered the claims of the Applicant to remain in Australia to study. The Tribunal is not bound to refer to every item of evidence submitted by an Applicant in support of his or her claims. At the hearing in this Court, the Applicant appeared to complain that the Tribunal had not considered the Specialist Referral from Dr Mustapha Alameddin dated 14 August 2015. However, this document had been given to the Tribunal by the Applicant on 29 January 2019 and was specifically referred to by the Tribunal at [4] and stated to have been taken into account at [5] of its Decision Record.
That Specialist Referral does not indicate the identity of the specialist meant to be referred to, but the only specialist medical evidence before the Tribunal was the psychiatric report of Dr Albert Roberts dated 5 April 2017 which was addressed to Dr Alameddin and, in its terms, thanked Dr Alameddin for referring the Applicant to Dr Roberts. It was noted in the psychiatric report that the Applicant had attended an initial consultation with Dr Roberts on 29 March 2017. The psychiatric report and the other medical evidence noted at the fourth and sixth bullet points of [4] of the Decision Record appear to justify the statement of the Tribunal at [27] (see [17] above) that the medical evidence relied upon by the Applicant above was “primarily from two years after the events that the applicant claims were the reason for his failure to study”.
At [19] – [35] of its Decision Record the Tribunal assessed whether there was evidence to support a finding in relation to each of the matters outlined in PAM3.
At [21] – [22] of its Decision Record the Tribunal referred to a statement and a medical report of the Applicant’s friend’s uncle which was relevant to the claim seemingly made by the Applicant that he needed to remain in Australia to support his friend’s uncle. The Tribunal noted that Student visas are not granted for the purpose of providing care to other persons and, taking into account the Applicant’s oral submissions regarding any compelling need to remain in Australia, the Tribunal recorded at [22] its finding that the Applicant had not demonstrated a powerful or convincing reason for needing to remain in Australia.
At [27] of its Decision Record the Tribunal referred to the Applicant’s medical evidence and also referred to a copy of a Magistrates Court report from Pakistan with accompanying translation. The Tribunal noted that the medical evidence was primarily from two years after the events which were claimed to have affected the Applicant’s study and noted that it took into account the Applicant’s oral evidence, but found at [29] that it placed “limited weight on the circumstances in which the grounds of cancellation occurred”.
It is clear that the Tribunal meaningfully engaged with the evidence before it and that it meaningfully considered the matters raised by the Applicant orally at the hearing before it, but nevertheless decided to affirm the cancellation decision.
In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Grounds 2 and 3
These Grounds appear to claim that the Tribunal failed to properly consider the circumstances which the Applicant alleged were beyond his control or his asserted compelling or exceptional reasons. Further, they appear to seek a merits review of the Tribunal’s alleged failure to properly understand or consider his claims of compelling and exceptional circumstances beyond his control. However, the Tribunal did refer to and consider his claims in those respects at [9], [19], [21], [22], [27], [28] and [29] of its Decision Record, with its findings being recorded at [28] – [29] (see [17] above).
In my view, Grounds 2 and 3 do not establish jurisdictional error.
Ground 4
This Ground merely argues with the merits of the Tribunal’s decision and does not establish jurisdictional error.
Grounds 5 and 6
Ground 5 in its terms merely seems to argue with the Tribunal’s decision. Ground 6 contends that the Tribunal’s decision lacked an evident and intelligible justification and was legally unreasonable.
In my view, these Grounds also fail to establish that the decision of the Tribunal was affected by jurisdictional error.
Unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, a finding is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” or “obviously disproportionate”: see generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li).
Similarly, “illogicality” or “irrationality” sufficient to constitute jurisdictional error requires that a finding be one which no rational or logical decision-maker could arrive at on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647 – 648 [130]. These tests for unreasonableness are necessarily stringent, and the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion: see Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at 411 [11] per Kiefel CJ. Further, findings of legal unreasonableness are “fairly rare and would only occur in relatively clear cases”: see Li at 376 – 377 [113]; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at 180 [103].
Given that the Applicant had not met the requirement of Condition 8202(2)(a), the Tribunal was correct in identifying that its role was to consider whether extenuating circumstances existed to not cancel the Student visa. The Tribunal clearly identified the relevant considerations from [19] – [35] of its Decision Record and proceeded to assess those considerations against the material before it.
Contrary to the Applicant's claims, the Tribunal based its findings that the Applicant did not demonstrate a genuine intention to study on an assessment of the Applicant's evidence, both documentary and oral. These findings were legally reasonably open to the Tribunal on the basis of the evidence and for the reasons it gave.
In my view, these Grounds also are not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 19 December 2019
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