Naqvi v Minister for Immigration
[2018] FCCA 793
•3 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAQVI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 793 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled (subclass 457) visa – cancellation – whether the Tribunal properly considered Australia’s non-refoulement obligations. |
| Legislation: Migration Act 1958, ss.116(1)(b), 140, 501 Migration Regulations 1994, condition 8107(3)(b) of Schedule 8 |
| Cases cited: Ayoubv Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 |
| First Applicant: | SYED ARIF HUSSAIN NAQVI |
| Second Applicant: | HUSN E ZEHRA NAQVI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 409 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 6 February 2018 |
| Date of last submission: | 20 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 April 2018 |
REPRESENTATION
| Advocate for the first applicant: | In person |
| Solicitors for the first applicant: | None |
| Advocate for the second applicant: | No appearance |
| Solicitors for the second applicant: | None |
| Advocate for the first respondent: | Kylie McInnes |
| Solicitors for the first respondent: | Australia Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australia Government Solicitor |
ORDERS
The decision of the Administrative Appeals Tribunal made on 3 February 2017 in matter number 1605825 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 409 of 2017
| SYED ARIF HUSSAIN NAQVI |
First Applicant
HUSN E ZEHRA NAQVI
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to cancel the first applicant’s Skilled (subclass 457) visa.
The first applicant is the husband of the second applicant. She obtained a visa as a member of the first applicant’s family. The second applicant’s visa was automatically cancelled, by operation of s.140 of the Migration Act 1958 (“the Act”), upon the cancellation for the first applicant’s visa. The Tribunal determined that it did not have jurisdiction with respect to the cancellation of the second applicant’s visa. The second applicant did not participate in the hearing. She came to court, but remained in the foyer, caring for the applicants’ young child.
At the hearing of the matter, an issue arose in relation to the Tribunal’s handling of Australia’s non-refoulement obligations. That issue concerned the Tribunal’s view that the first applicant was not likely to be subjected to treatment that would contravene Australia’s non-refoulement obligations. The court permitted the Minister to file and serve supplementary written submissions relating to the Tribunal’s consideration of Australia’s non-refoulement obligations. The first applicant did not wish to file any written submissions in reply. The parties were content for the court to make its decision without a further oral hearing.
Background
The first applicant, who is a citizen of Pakistan, arrived in Australia on a student visa in 2008. He was granted a 457 visa on 8 August 2012. His sponsor was Sumit Enterprises Pty Ltd (“the company”). The company went into liquidation on 18 September 2015. Consequently, the first applicant was deemed to have ceased employment with the company on that date.
On 5 April 2016, the Department of Immigration and Border Protection (“the Department”) sent the first applicant a notice of intention to consider cancelling his visa (“the notice”). The notice asked the first applicant to comment on the apparent breach of condition 8107(3)(b), to which his visa was subject. That condition required that the first applicant not cease employment for a period exceeding 90 days.
The first applicant appointed a migration agent on 12 April 2016. The agent requested an extension of time in which to reply to the notice. The extension was granted. The first applicant responded to the notice on 19 April 2016. He said that he had worked full-time for two years as a cook with the company and had been on annual leave when it went into liquidation. He said he had been unable to obtain another sponsor within the 90 days allowed because he was busy caring for his wife and their new baby, who was born on 30 September 2015. He said that he had subsequently found a new employer to sponsor him. The applicant asked for more time to provide proof of his new sponsorship.
A delegate of the Minister cancelled the first applicant’s visa on 21 April 2016 under s.116(1)(b) of the Act. The delegate considered that the first applicant had breached condition 8107(3)(b) because he had ceased employment for more than 90 days and there was no evidence of him having obtained a new sponsorship in the following seven months. The delegate considered various matters relating to the discretion whether to cancel the visa and concluded that the factors in favour of cancellation outweighed the factors in favour of not cancelling the visa.
The Tribunal’s reasons
The Tribunal noted in its reasons for decision that the first applicant accepted that he had breached a condition of his visa as alleged, but asked the Tribunal to set aside the delegate’s decision and reinstate his visa.
The Tribunal noted that the first applicant claimed that two people would employ him once he had resolved his immigration issues but that he did not provide any documentary evidence to support that claim.
The Tribunal was satisfied that a ground for cancellation existed, being the first applicant’s non-compliance with condition 8107(3)(b). The Tribunal noted that mandatory cancellation was not required and that the Tribunal had a discretion whether to cancel the first applicant’s visa or not. The Tribunal noted that its discretion was to be guided having regard to all of the relevant circumstances. The Tribunal noted that it could have regard to the Department’s Procedures Advice Manual (“PAM3”), but that it was not bound to follow it.
The Tribunal then proceeded to deal with the various matters raised by the first applicant under the headings suggested in PAM3. The Tribunal concluded that, after balancing the relevant matters, the preferable result was to affirm the delegate’s decision.
Ground 1
The first ground of review in the application filed on 1 March 2017 is:
The tribunal misinterpreted and misapplied provisions concerning information I provided for not to cancel the visa.
The first applicant did not provide particulars of any of his grounds, or advance any oral or written submissions in respect of them. The first applicant’s oral submissions were confined to pleas for merits review.
However, during the hearing, the court raised an issue about whether the Tribunal had misdirected itself in relation to one of the matters raised in PAM3 as being relevant to the exercise of the discretion to cancel a visa.
The relevant passages of the Tribunal’s reasons for decision are as follows:
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation
42.In considering whether to exercise its discretion to cancel the first applicant’s visa, the policy guidelines suggest that the tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
43.The first applicant stated that if he returned to Pakistan, he would fear for his safety and that of his family because he is a shia muslim; a persecuted minority in Pakistan. Apart from belonging to the shia sect, the first applicant could not cite a specific threat to his safety or reason why he or his immediate family would be targeted for harassment in Pakistan. He relied generally on his belonging to the shia sect.
44.As set out above, the Tribunal is prepared to accept that shia muslims are a minority in Pakistan and that there have been reported instances of shia persecution in that country.5 However, on its own, that general proposition is not enough to constitute sufficient evidence that the first applicant or his immediate family are likely to be subjected to harassment or other treatment that would contravene any of Australia’s international obligations including the ones set out in paragraph 42 above. (emphasis added)
45.The first applicant could not say with any precision why he or his immediate family would be targeted in Pakistan. He did not say that he had been threatened or targeted in the past. And he said that the primary reason he came to Australia was due to the lack of employment opportunities in Pakistan. He did not cite difficulties living in Pakistan as a shia as a reason for leaving. Even if the events set out in paragraph 10(p)(iv) above did occur, they did not constitute direct threats against the first applicant or his immediate family.
46.On the limited and vague evidence before it, the Tribunal is unable to conclude that the first applicant or his immediate family are likely to be subjected to treatment in Pakistan that would contravene any of Australia’s non-refoulement and other international obligations sufficient to justify setting aside the delegate’s decision. (emphasis added)
47.In a review of a decision to cancel a non-protection visa such as the one at hand, the Tribunal is not required to undertake a full assessment of Australia’s non-refoulement obligations.6 It remains open to the first applicant (and his family) to apply for protection, in which application the claims can be properly articulated and considered.
5 See for example: Shia persecution continues to spiral in Pakistan as the state acquiesces to genocidal violence; 22 February 2016;
6COT15 v MIBP (No. 1) [2015] FCAFC 190; MIBP v Le [2016] FCAFC 120.
Paragraph 10(p)(iv) of the Tribunal’s reasons for decision, to which it referred in paragraph 45 set out above, was a summary of the applicant’s claims in relation to the risks he faced in Pakistan, and is as follows:
In Pakistan, his family might be subject to harassment and persecution because they are shia muslims; a minority in Pakistan. Three shias have been killed there recently. His uncle and his brother’s father in law have also been threatened recently. If he was to return to Pakistan, he would fear for his life and that of his family (primarily his son). On questioning from the Tribunal, he was unable to identify a specific threat (and the reason for it) to which he or his family has been or might become subject. He cited only in general terms that shia muslims are subject to harassment in Pakistan.
In his supplementary written submissions, the Minister noted that the Full Court of the Federal Court said in Ayoubv Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 that, in a matter comparable to the present, being a s.501 assessment, the Tribunal is not required to undertake the same level of analysis in relation to the non-refoulement obligations as would be required in a protection visa application.
The Minister also referred to the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96. The Minister submitted that BCR16 is distinguishable. I accept that the Tribunal in the present case did not make the type of error that was made in BCR16.
However, the Minister went on to rely on statements made at paragraph 49 of BCR16. It is helpful to set out that paragraph as well as the preceding paragraph, which are as follows:
48.We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.
49.In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
The Minister then submitted:
13.Although the above cases do not specifically consider cancellation pursuant to s 116 of the Act, the distinction between discretionary cancellation and the exercise of power under s 65 of the Act are equally applicable to the present matter. All that was required of the Tribunal was the weighing of the potential international obligations against the other factors going to the discretion to cancel the applicant’s visa. There was no particular threshold which applied as part of this balancing exercise.
14.The Tribunal’s consideration of whether the applicant or his family were ‘likely to be subjected to harassment or other treatment that would contravene any of Australia’s international obligations’ (at [44]), or were ‘likely to be subjected to treatment in Pakistan that would contravene any of Australia’s non-refoulement and other international obligations’ (at [46]) was a compendious consideration of the obligations arising under the various international conventions and protocols. (emphasis in original)
15.The Tribunal’s assessment that it was not likely that intentional obligations were engaged was its assessment of the evidence before it, from which it could then place appropriate weight on the factor. The Tribunal use of the term ‘likely’ was not the Tribunal’s imposition of a particular standard or threshold which it erroneously though (sic) to arise under one (or all) of those conventions or protocols it was jointly considering. The Tribunal was not required to determine whether the applicant faced a ‘real risk’ or ‘real chance’ of serious or significant harm, nor did it purport to do so.
16.Having regard to the weighing task being performed by the Tribunal, and to the limited information before it, it was entirely appropriate for the Tribunal to consider that the applicant (or his family) were not likely to be subjected to treatment that would contravene international obligations.
I accept that the task of the Tribunal in the present case was to weigh various factors and that there was no particular threshold to be applied as part of the balancing exercise.
However, the Tribunal accepted in paragraph 42 of its reasons that it should assess whether Australia would or may be in breach of its international obligations if the applicants’ visas were cancelled and they were returned to Pakistan. In making that assessment, the Tribunal was required to apply the correct test. Relevantly, the correct test was whether the applicants would face a real chance of persecution, not whether they were likely to face persecution. That is, Australia would or may breach its international obligations if it returned a person to a country where that person faced a real chance of persecution. The Tribunal applied the wrong test when it decided that the applicants were unlikely to face persecution in Pakistan.
In theory, the Tribunal could have weighed up all the various factors and decided that the applicants’ visas should be cancelled even though they faced a real chance of persecution in Pakistan. However, that is not what the Tribunal did.
The Tribunal did not in fact consider whether Australia’s non-refoulement obligations would or may be breached. It could only answer that question by deciding, albeit in an abbreviated way, whether the applicants faced a real chance of persecution in Pakistan. The Tribunal did not do so. Nor did its reasons for decision indicate that it actually understood what Australia’s non-refoulement obligations are.
BCR16 does not assist the Minister. It actually stands for the opposite principle to that for which the Minister cited it. In BCR16, the Full Court said at [49]:
… In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified.
In other words, the decision maker in a s.501 matter, or presumably, a s.116 matter, can act on a smaller risk than a real chance.
For these reasons, ground 1 is made out. The Tribunal fell into jurisdictional error.
Ground 2
The second ground of review in the application filed on 1 March 2017 is:
That the member erred in affirming the review application by relying on the evidence DIBP provided to cancel the visa.
It was not an error for the Tribunal to rely on information provided by the Department. The applicants provided to the Tribunal a copy of the delegate’s decision record. Consequently, the Tribunal was permitted to take it into account. There is no indication in the courtbook of any other information provided by the Department.
Ground 3
The third ground of review in the application filed on 1 March 2017 is:
The DIBP Case officer erred in considering the grounds for not to cancel the 457 visa.
This ground challenges the delegate’s decision. This court has no power to review such decisions.
Ground 4
The fourth ground of review in the application filed on 1 March 2017 is:
Despite of more reasons for not to cancel the visa, he made up his own mind to cancel the visa.
This ground also appears to challenge the delegate’s decision. As mentioned in relation to ground 3, this court has no power to review such decisions. If, in fact, this ground concerns the Tribunal’s decision, there was no error in the Tribunal making up its own mind. That was its task.
Ground 5
The fifth ground of review in the application filed on 1 March 2017 is:
DIBP erred in not considering the findings that I was in the race to find the employment as it can breach my visa condition and they did not provided any extra time even they were fully aware of my conditions.
This ground also appears to challenge the delegate’s decision. As mentioned in relation to ground 3, this court has no power to review such decisions.
Ground 6
The sixth ground of review in the application filed on 1 March 2017 is:
Rather than considering the 457 visa case they emphasise on my circumstances in my home-country and also concluded that the circumstances are unfavourable but did not gave any weight to my circumstances.
Questions of weight are matters for the Tribunal, unless weight is attributed irrationally. There is no indication of that in the present case.
Ground 7
The seventh ground of review in the application filed on 1 March 2017 is:
The DIBP case officer and AAT member failed to consider that each case has its own facts, merits and compelling reasons.
To the extent that this ground challenges the delegate’s decision, as mentioned in relation to ground 3, this court has no power to review such decisions. To the extent that this ground challenges the Tribunal’s decision, it is apparent that the Tribunal took into account the applicants’ particular circumstances.
Ground 8
The eighth ground of review in the application filed on 1 March 2017 is:
The member did not considered the compelling reasons that weigh my case for not to cancel my 457 visa and made a jurisdiction error in my case.
The applicants did not identify any particular compelling reasons that the Tribunal failed to consider. I have been unable to discern any.
Ground 9
The ninth ground of review in the application filed on 1 March 2017 is:
My visa application raises an arguable case in relation to not cancel the visa.
As discussed in relation to ground 1, I accept that the applicant in this case has more than an arguable case.
Ground 10
The tenth ground of review in the application filed on 1 March 2017 is:
That the DIBP Case Officer and AAT member erred in affirming the review and not according substantial justice to the applicants.
To the extent that this ground challenges the delegate’s decision, as mentioned in relation to ground 3, this court has no power to review such decisions. To the extent that this ground challenges the Tribunal’s decision, I have accepted that the Tribunal made a jurisdictional error.
Conclusion
For the reasons discussed above, the matter will be remitted to the Tribunal with costs. As the applicants are not represented, and their costs probably consist only of court fees, I will hear the parties on the quantum.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 3 April 2018
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