Muhammad v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1309
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Muhammad v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1309
File number(s): SYG 613 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 29 November 2024 Catchwords: MIGRATION – judicial review – student visa – cancellation under s 116(1)(b) of the Act on the basis that the applicant had not complied with a condition of the visa in relation to enrolment in registered course – no jurisdictional error disclosed Legislation: Migration Act 1958 (Cth) ss 116, 357A, 360, 360A, 476, 477
Migration Regulations 1994 (Cth) condition 8202 of sch 8
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 16 October 2024 and 22 November 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms M Kelly of Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 613 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATIF MUHAMMAD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The Application is 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 Kaur-Bains
By application filed on 11 March 2020, the applicant who is a citizen of Pakistan, seeks judicial review of the Tribunal’s decision. The Tribunal affirmed the delegate’s decision to cancel the applicant’s Student (Temporary) (class TU) (subclass 573) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicant sought to impugn the Tribunal’s and the delegate’s reasons and findings on several grounds. For the reasons set out at [15] to [28] below, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.
BACKGROUND
On 18 February 2019, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC), on the basis he had breached condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations), in that he was not enrolled in a registered course (CB 3-7). On 1 March 2019, the applicant’s migration agent responded to the NOICC, enclosing a statement from the applicant. In the statement, the applicant admitted he was not enrolled in a registered course and sought to explain that he could not continue his studies due to various personal matters (CB 13-16).
On 25 March 2019, the visa was cancelled by the delegate under s 116(1)(b) of the Act, on the basis that the applicant had not complied with a condition of the visa, because according to the PRISMS, the applicant had not been enrolled in a fulltime registered course of study since 4 June 2018 (CB 5).
TRIBUNAL’S DECISION
On 29 March 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 28-29). On 17 February 2020, the applicant attended a hearing before the Tribunal remotely by video (CB 41). The Tribunal correctly identified the issue was whether the applicant had breached condition 8202 and, if so, whether the visa should be cancelled ([10] of the reasons).
The Tribunal observed that the applicant completed an English course before commencing a Bachelor of Business Management in January 2017, during which he passed three subjects ([19] of the reasons). The Tribunal had regard to the applicant’s evidence that in late 2018 he visited his family in Pakistan and felt pressure from them to marry. He began drinking heavily, became unfocussed and stopped leaving the house ([20] of the reasons). The Tribunal acknowledged the applicant’s circumstances were unfortunate but found the applicant did not have a compelling need to remain in Australia as he could study in Pakistan ([23] and [25] of the reasons).
The Tribunal accepted that the applicant may have faced personal difficulties but found that those difficulties did not satisfactorily explain his failure to comply with the visa conditions ([30] of the reasons). The Tribunal accepted that pressure put on the applicant by his family was out of his control, but found that his choice of girlfriend in Australia, his choice to consume alcohol excessively and his failure to seek medical or other assistance were within his control. The Tribunal gave this weight in favour of cancelling the applicant’s visa ([31] of the reasons).
The Tribunal found there was no evidence of any other breaches of visa conditions other than non-compliance with condition 8202, but considered that the breach, for nine months, was significant ([32] of the reasons). The Tribunal accepted that cancellation would be disappointing for the applicant and his family ([34] to [35] of the reasons). The Tribunal found there was nothing unfavourable regarding the applicant’s behaviour towards the Department ([37] of the reasons). The Tribunal found there were not any consequences for other visa holders if the applicant’s visa was cancelled ([38] of the reasons). The Tribunal recorded that if the applicant became an unlawful non-citizen he would be liable to detention and removal if he did not voluntarily leave Australia, a bar on visas would be imposed and he would be subject to a three-year exclusion period. However, these were all intended consequences of the legislation ([39] of the reasons). The Tribunal recorded Australia’s international obligations did not appear to be engaged ([40] of the reasons).
In considering the applicant’s circumstances, the Tribunal found that the applicant’s visa should be cancelled and affirmed the decision under review ([41]-[42] of the reasons).
GROUNDS IN THE APPLICATION
In the application for judicial review, the following grounds were raised:
1.Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue) as mentioned in affidavit attached here with.
2.Administrative Appeals Tribunal had refused to grant me Student (Temporary) (class TU) subclass 500 visa on 17/02/2020. I attached such decision herewith as Annexure A
3.The decision I appealed into Administrative Appeals Tribunal was the decision of Department of Immigration and Border Protection refusing my Temporary Student (class TU) subclass 500 visa application. I attached its decision as Annexure B.
4.Administrative Appeals Tribunal had not acted in the best interest of the applicant (procedural fairness issue)
5.The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.212 because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay in Australia temporarily as a student. First of all, delegate only take a decision on base on hearing they have not given me time to provide documents. I think I am become a victim of a procedure fairness issue/matter here as Administrative Appeals Tribunal has an error in my decision. This is not fair work by any department while making a decision and department or tribunal should be fair to make it decision and must look into all necessary aspects and give enough time to produce documents.
PROCEEDINGS BEFORE THE COURT
The applicant appeared before the Court at the hearing as a litigant in person. The applicant confirmed he was in possession of the application, the court book and the Minister’s written submissions. The applicant confirmed the visa had been granted to him and he understood his visa had been cancelled owing to him not remaining enrolled in a registered course of study.
I explained to the applicant he needed to explain to me what the Tribunal did wrong, so I could consider whether the matter should be remitted to the Tribunal to reconsider. The applicant was also told that this Court could not engage in merits review or grant him a student visa.
RELEVANT LAW
Relevantly, at the material time, the Act provided as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b) its holder has not complied with a condition of the visa; or
…
Visa condition 8202(2), attached to the applicant’s visa, required that he remained enrolled in a registered course.
CONSIDERATION
At the hearing the applicant sought to read his affidavit affirmed on 11 March 2020, which repeated grounds 1, 3, 4 and 5. The Minister did not object to the affidavit being read on the basis that the last paragraph of the affidavit be treated as submissions. The affidavit was read on that basis. I also granted leave that the application be amended to seek an order quashing the decision of the Tribunal.
Grounds 1 and 4
At the hearing before me, the applicant said that his lawyer at the time did not tell the applicant that he needed to obtain a confirmation of enrolment and therefore did not guide the applicant properly. The applicant said the lawyer did not attend the hearing and the applicant was confused at the Tribunal hearing as to what was happening.
Further, the applicant said the Tribunal Member said that if he had an active enrolment then the Member “would grant a visa” and gave the applicant about 30 to 40 minutes to get the enrolment. The applicant said that was not sufficient time for him to obtain a re-enrolment. At the hearing before me, I raised with the Minister whether the said matters, if proved, may give rise to jurisdictional error. The Minister said he did not know whether there may be a ground for jurisdictional error.
Given that the applicant was a litigant in person and that the matters the applicant had raised may give rise to a jurisdictional error, I granted the applicant an adjournment to obtain a transcript of the hearing before the Tribunal to establish whether the Tribunal had indeed said to the applicant that if he obtained a confirmation of enrolment within 30 to 40 minutes that she would “give him a visa.” The Minister agreed to provide the recording of the Tribunal hearing to the applicant and the name of a transcription service.
On 22 November 2024 the hearing was resumed before me. The applicant confirmed he had received the recording of the Tribunal hearing and that he had listened to the recording. The applicant said that the recording did not contain a recording of the Tribunal member saying what the applicant had asserted was said as set out at [17] of this judgment. However, the applicant maintained that the member had in fact said the matters set out at [17] of this judgment but said those words when the recording had stopped.
The Minister pointed to what was said at [29] of the Tribunal’s reasons reproduced below, as going against accepting what the applicant asserted the Tribunal said:
… The Tribunal notes that if the applicant had in fact produced a COE at hearing for study to be undertaken at some time in the future, the Tribunal would still have serious concerns about the fact that the applicant has been onshore now for in excess of four years and has only completed one English course and two semesters of a Bachelor course, 50% of which he failed.
In my view, it is unlikely that the Tribunal said what the applicant is asserting given that those comments would be inconsistent with the Tribunal’s reasons at [29] of its decision, reproduced in the preceding paragraph.
In relation to Grounds 1 and 4 the Minister submitted that those grounds did not disclose jurisdictional error for the following reasons:
(a)First, there was no obligation on the Tribunal to act in the best interest of the applicant.
(b)Second, the Tribunal complied with the procedural fairness obligations imposed by Division 5 of Part 5 of the Act, which is an exhaustive statement of the Tribunal’s procedural fairness obligations:357A of the Act. The Tribunal invited the applicant to attend a hearing in compliance with ss 360 and 360A of the Act, which the applicant attended. The applicant was put on notice from the delegate’s decision (which he said he read and understood ([15] of the reasons) and the Tribunal’s questions at the hearing that the determinative issues on review would be whether he had breached condition 8202(2)(a), in not being enrolled in a registered course as required by a condition imposed on his visa and whether his visa should be cancelled.
In relation to Grounds 1 and 4, I find that no jurisdictional error has been disclosed because:
(a)The Tribunal invited the applicant to attend a hearing in compliance with ss 360 and 360A of the Act, which the applicant attended.
(b)The applicant had an opportunity to bring a representative to the hearing but said he did not intend to bring a representative (CB 38).
(c)The Tribunal ensured that the applicant was aware of the issues.
(d)The Tribunal’s reasons do not disclose there was any confusion on the part of the applicant as to the issues and the applicant did not ask the Tribunal at any point for an adjournment so to enable him to secure the attendance of his lawyers at the Tribunal hearing.
Grounds 2 and 3
At the hearing before me, the applicant repeated that he was confused before the Tribunal but did not otherwise elaborate on Grounds 2 and 3.
The Minister submitted that Grounds 2 and 3 do no more than set out the history of the matter and do not disclose any jurisdictional error. This is a correct assessment of the said grounds. Accordingly, no jurisdictional error is disclosed in Grounds 2 and 3.
Ground 5
The applicant could not expand on Ground 5.
The Minister contended that Ground 5 is misconceived for the following reasons, which reasons I agree with:
(a)First, this Court has no jurisdiction to review the delegate’s decision, which is a primary decision: s 476(2)(a) of the Act.
(b)Second, the ground fails at a factual level. Contrary to the applicant’s contention, this matter concerns a cancellation decision pursuant to s 116(1)(b), not a refusal to grant a visa.
(c)Third, the applicant was given a reasonable opportunity to provide any evidence that he wished in support of his review application. The invitation to attend a hearing specifically put the applicant on notice that a decision could be made at the end of the hearing, and invited him to provide all documents he intended to rely upon in support of his application (CB 37).
(d)Finally, the Tribunal’s decision record clearly demonstrates that the applicant was able to give evidence in response to the Tribunal’s questions at the hearing [15], [20], [27].
For these reasons round 5 does not disclose a jurisdictional error.
CONCLUSION
For the above reasons the application is dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 29 November 2024
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