Nawaz v Minister for Immigration
[2019] FCCA 2962
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAWAZ v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2962 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied the applicant was a genuine student – whether the Tribunal decision was legally unreasonable having regard to a serious illness suffered by the applicant – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Bala v Minister for Immigration [2019] FCA 600 Minister for Immigration v Eden [2016] FCAFC 28; (2016) 240 FCR 158 |
| Applicant: | MUHAMMAD SHAH NAWAZ |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2546 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Berg, pro bono publico |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application filed on 11 September 2018 (as augmented by Order 1 made on 15 May 2019 and the applicant’s submissions filed on 11 October 2019) is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2546 of 2018
| MUHAMMAD SHAH NAWAZ |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 September 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant (Mr Nawaz) a temporary student visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 8 May 2019.
Mr Nawaz is a citizen of Pakistan who first arrived in Australia on 12 August 2014 as the holder of a student (Subclass 573) visa.
On 30 August 2016, Mr Nawaz applied for a student (Subclass 500) visa on the basis of his enrolment in a Bachelor of Commerce at the University of Canberra, which was due to commence on 8 August 2016 and conclude on 30 June 2019.[1]
[1] Court Book (CB) 1-28
It was a criterion for the grant of the student visa that Mr Nawaz satisfy the primary criteria including clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required him to be a genuine applicant for entry and stay as a student.
On 3 November 2016, the delegate refused to grant Mr Nawaz a student visa.[2] The delegate was not satisfied that Mr Nawaz intended genuinely to stay in temporarily in Australia and found he did not meet clause 500.212 of the Regulations.
[2] CB 34-40
The Tribunal
On 17 November 2016, Mr Nawaz applied to the Tribunal to review the delegate’s decision and appointed a migration agent in connection with his review application.[3] He also provided the following documents: a submission dated 16 November 2016; an academic transcript from University of Canberra; and bank statements.[4]
[3] CB 41-51
[4] CB 53-96
On 14 December 2017, Mr Nawaz was invited to attend a hearing scheduled for 18 January 2018.[5]
[5] CB 105-109
On 17 January 2018, Mr Nawaz requested an adjournment,[6] which was granted. Mr Nawaz was invited to a postponed hearing scheduled for 30 January 2018.[7] Prior to the hearing, Mr Nawaz provided a submission dated 30 January 2018 together with medical reports and a marriage certificate.[8]
[6] CB 119-120
[7] CB 121-125
[8] CB 130-151
Mr Nawaz attended the hearing on 30 January 2018 with his migration agent.[9]
[9] CB 152-154
On 11 February 2018, Mr Nawaz provided an offer of enrolment from Universal Business School Sydney (UBSS) for a Bachelor of Accounting with course dates from 7 May 2018 to 23 April 2021.[10]
[10] CB 161-175
On 27 June 2018, Mr Nawaz was invited to comment on or respond to information pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act) (the s.359A letter). The particulars of information contained in the s.359A letter were that according to records from the Provider Registration and International Student Management System (PRISMS), Mr Nawaz was not enrolled in a course of study and his enrolment in the Bachelor of Accounting was cancelled for non-payment of fees. The s.359A letter stated that there was no evidence Mr Nawaz had undertaken any other approved course of study since 30 January 2018. It informed Mr Nawaz that this information was relevant to the review because clause 500.211 of the Regulations required him to be enrolled in a full time registered course of study.[11]
[11] CB 177-180
On 11 July 2018, Mr Nawaz responded (through his agent) stating that he had to cease studies on medical advice and was enrolling in a new course. The letter stated that Mr Nawaz “was meeting with his doctor today and having more tests”. Mr Nawaz requested an extension of two weeks to respond to the s.359A letter.[12]
[12] CB 182
On 13 July 2018, Mr Nawaz was invited to attend a further hearing scheduled for 31 July 2018.[13] On the day of the hearing, Mr Nawaz provided the Tribunal with a new confirmation of enrolment (COE) for a Bachelor of Accounting at UBSS.[14] Mr Nawaz attended the hearing with his migration agent.[15] He also provided the Tribunal with confirmation of a PET-CT Scan dated 6 June 2018.[16]
[13] CB 184-191
[14] CB 197-198
[15] CB 207-209
[16] CB 200-202
On 1 August 2018, the Tribunal wrote to Mr Nawaz noting that since his letter of 11 July 2018, no further medical reports had been provided other than billing details for a PET-CT Scan and Procedure Guide. The Tribunal allowed Mr Nawaz until 3 August 2018 to provide any additional medical evidence.[17]
[17] CB 210
On 2 August 2018, Mr Nawaz submitted a report of Dr Young dated 1 August 2018 stating that he had completed treatment for Hodgkin lymphoma and was in remission. Dr Young stated that he was fit to resume full time studies.[18] A further medical certificate of Dr Shahnaz dated 29 May 2018 was provided on 4 August 2018.[19]
[18] CB 213
[19] CB 216-217
The Tribunal’s decision
On 3 September 2018, the Tribunal affirmed the decision under review.[20]
[20] CB 219-233
The Tribunal summarised:
a)the background to the matter including the documents provided by Mr Nawaz;[21]
b)Mr Nawaz’s evidence at the first Tribunal hearing;[22]
c)the s.359A letter and Mr Nawaz’s response;[23] and
d)Mr Nawaz’s evidence at the second Tribunal hearing.[24]
[21] CB 222-223, [3]-[8]
[22] CB 223-224, [9]-[13]
[23] CB 224, [14]-[18]
[24] CB 224-226, [19]-[27]
The Tribunal identified that the issue arising in relation to the decision under review was whether Mr Nawaz satisfied clause 500.212 and was a genuine temporary entrant for study.[25] The Tribunal set out the relevant law and correctly observed that it was required to have regard to Direction 69 (the Direction), made under s.499 of the Migration Act, and assess Mr Nawaz against the list of factors in the Direction. The Tribunal also observed that the factors in the Direction should not be used as a checklist but are intended to guide decision makers to weigh up an applicant’s circumstances as a whole.[26]
[25] CB 226-227, [29]-[30]
[26] CB 227, [31]-[32]. See Item 1, Part 2 of Direction No. 69; Ghimire v Minister for Immigration [2014] FCA 899 at [3]
The Tribunal gave some weight to Mr Nawaz’s parents and his wife providing him with ongoing personal ties to Pakistan but was not satisfied this was a significant incentive for him to return to his home country.[27] The Tribunal considered that:
a)Mr Nawaz had two brothers in Australia;
b)his mother spent time in Australia to look after Mr Nawaz;
c)at the time of the second hearing both his parents were in Australia; and
d)Mr Nawaz established a business in Australia that he said provided him with an income greater than he could obtain from a job.
[27] CB 227, [33]
The Tribunal found these factors were strong incentives for Mr Nawaz to prolong his stay in Australia and was not satisfied he was a genuine temporary entrant.[28]
[28] CB 227-228, [34]
The Tribunal was satisfied Mr Nawaz had provided independent evidence of his medical condition,[29] but found he did not provide evidence that he was fit to study in January 2018 or that his health was the reason he had to stop studying in May 2018. The Tribunal found no evidence was provided to either demonstrate that Mr Nawaz was undertaking tests in July 2018 or of his admittance to Royal Prince Alfred Hospital as an inpatient. The Tribunal found the medical certificate of Dr Shahnaz did not indicate that Mr Nawaz was admitted to hospital for observation nor did he explain why his medical appointments meant he could not continue the course he enrolled in or why he did not seek compassionate leave from his education provider.[30]
[29] at CB 228, [35]
[30] CB 228, [36]
The Tribunal found Mr Nawaz’s enrolment to re-commence study in May 2018 was cancelled for non-payment of fees, which was not related to his ill-health, and no evidence was provided to support Mr Nawaz’s claim that he had paid for three subjects but his enrolment was unexpectedly cancelled. The Tribunal found that it could not be satisfied on the evidence that Mr Nawaz was admitted to hospital for a week in May or June 2018. As Mr Nawaz’s course began on 7 May 2018 and his medical treatment covered the period 29 May 2018 to 4 June 2018, the Tribunal found Mr Nawaz had ample time to finalise his enrolment matters and make arrangements with his college to take leave for medical treatment. The Tribunal was not satisfied Mr Nawaz’s enrolment was cancelled for the reasons he claimed.[31]
[31] CB 228, [37]
The Tribunal acknowledged the letter from Mr Nawaz’s doctor stating he was now fit to study but was concerned Mr Nawaz would not continue to study or maintain enrolment as had occurred in the past. The Tribunal accepted he suffered from a serious illness which had an impact on his health and wellbeing but was not satisfied Mr Nawaz’s behaviour was consistent with a genuine student whose only purpose in Australia was to study.[32]
[32] CB 228-229, [38]
The Tribunal found Mr Nawaz was misleading in describing himself as “unemployed” in his visa application when he was actually running his own business. The Tribunal found the statement in his visa application that he was not working because he was completely focussed on his education was untrue given he was working in his own business and not completely focussed on study. The Tribunal was concerned Mr Nawaz gave his time to his business whilst his academic endeavours suffered. It accepted he was unwell in the past and considered that running a business would deplete his energy and personal resources such that his studies would inevitably suffer.[33]
[33] CB 229, [41]
The Tribunal considered the value of the course to Mr Nawaz’s future and noted he had not provided evidence or made submissions as to the reason for his change from a Bachelor of Commerce to Bachelor of Accounting or how it would improve his employment or career prospects. The Tribunal noted that it appeared from the evidence Mr Nawaz already had the ability to establish and run a business, and therefore it was unclear why he wished to undertake a degree majoring in accounting. The Tribunal was not satisfied Mr Nawaz had demonstrated how qualifications gained from this course of study would benefit him in his own country in the future.[34]
[34] CB 230, [42]
The Tribunal accepted that Mr Nawaz:
a)was unwell with Hodgkin lymphoma;
b)received treatment; and
c)was required to undergo monitoring and assessment.[35]
[35] CB 230, [43]
The Tribunal took into account that Mr Nawaz had re-enrolled once more in a Bachelor degree, but having regard to all the evidence, it was not satisfied Mr Nawaz was likely to maintain enrolment, pass the requisite course units, complete his studies and return to Pakistan. The Tribunal was not satisfied Mr Nawaz was undertaking the course for genuine purposes and found he was seeking to maintain residency in Australia.[36]
[36] CB 230, [43]
The Tribunal was not satisfied Mr Nawaz intended genuinely to stay in Australia temporarily and found that he did not satisfy clause 500.212(a).[37] The Tribunal was therefore not satisfied Mr Nawaz was a genuine applicant for entry and stay as a student as required by clause 500.212.[38]
[37] CB 230, [44]
[38] CB 230, [45]
The present proceedings
These proceedings began with a show cause application filed on 11 September 2018. The matter came before me for a show cause hearing on 15 May 2019. Mr Nawaz appeared in person at that hearing and, among other things, told me of a serious health issue confronting him. I marked for identification correspondence from Royal Prince Alfred Hospital dated 3 March 2019 concerning Mr Nawaz’s illness and the treatment he is receiving for it.[39] The letter requests consideration of the difficulties that Mr Nawaz has faced over the course of his treatment.
[39] MFI A1
At the show cause hearing I made the following order:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the question of whether the Administrative Appeals Tribunal decision was legally unreasonable, having regard to the applicant’s illness and the inevitable impact on his studies.
In view of Mr Nawaz’s health concerns, and the issue identified for a final hearing, I also issued a referral certificate under Part 12 of the Federal Circuit Court Rules 2001 (Cth). That referral was accepted by Mr Berg who represented Mr Nawaz at the trial. The Court is grateful for the willingness of counsel to appear on that basis.
The only evidence I have before me is the court book filed on 14 November 2018. Both Mr Nawaz and the Minister filed additional pre-hearing submissions in advance of the trial on 16 October 2019 and made oral submissions at the trial through their counsel. Mr Nawaz’s submissions went beyond the show cause order I had made but no objection was raised by the Minister and I permitted the issues addressed in Mr Nawaz’s written submissions to be pursued.
Consideration
Mr Nawaz is concerned that the evaluation of the factors concerning whether he has an incentive to return to Pakistan or, conversely, an incentive to prolong his stay in Australia, is arbitrary and capricious.
In oral submissions, it was made clear that this is an attack on the Tribunal’s reasoning at [33]-[34][40] where the Tribunal stated:
The applicant gave evidence about his circumstances in his home country. Prior to arriving in Australia in 2014 the applicant said he had been studying a Bachelor of Business Administration in Islamabad, Pakistan but his brother in Australia convinced him to study here both in order to obtain a better education and because he is innovative in business. The applicant’s parents, one brother and the applicant’s wife, who he married in December 2017, continue to live in his home country. The applicant declared he had started a business with a cousin in Pakistan although no details or independent evidence was provided to support this claim. He also claimed in his written statement in 2016 that he has a house in Pakistan that is still in his father’s name and promised to him but did not provide evidence of this. He stated there was no military service, or civil or political issues preventing him from returning. The Tribunal gives some weight to the applicant’s parents and his wife providing ongoing personal ties to Pakistan but is not satisfied this is a significant incentive for him to return to his home country.
The applicant has two brothers in Australia and from his evidence; his mother has spent time here and intends to apply for another visa to continue looking after the applicant. According to the applicant’s evidence, he requires his mother to prepare food for him which she has been doing, and apparently will continue to do until March 2019, after which a further visa will be sought for her to come back to Australia. At the time of the second hearing, the applicant said both his parents are in Australia and he had returned to Pakistan for just over three months between October 2017 and January 2018 to be with his wife. The applicant said he is supported by a brother in Australia and the applicant himself established his own business here that he said provided him with an income greater than he could obtain from a job. The Tribunal considers these factors are strong incentives for him to prolong his stay in Australia and is not satisfied he is a genuine temporary entrant.
[40] CB 227-228
In my view, this is an example of an unexceptionable weighing exercise by the Tribunal where some factors suggest Mr Nawaz has an incentive to return to Pakistan at the end of his studies while other circumstances suggest an incentive to remain in Australia.
Secondly, Mr Nawaz takes issue with the Tribunal’s assessment of his business activities. In oral argument, it was clear that this was an attack on the Tribunal’s reasoning at [41] where the Tribunal stated:[41]
The Tribunal finds the applicant was being misleading in describing himself as 'unemployed' when in fact, he was running his own business. In addition, his statement in the application form that he was not working because he was completely focussed on his education was not true since he was working in his own business, and consequently not completely focussed on study. The applicant claimed his business provided him with an income without having to work, it can be sold at a later date and it has given him entrepreneurial experience. While this may be the case, the Tribunal is concerned the applicant has given his time to this business while his academic endeavours suffered. As has been stated, the Tribunal accepts the applicant has been unwell in the past, and in that context, running a business would deplete his energy and personal resources such that his studies would inevitably suffer. The Department noted that at the time of application, the applicant was studying at University of Canberra while living in Minto in New South Wales which did not appear to be practical. Although the applicant claimed he still attended his University of Canberra tutorials two and three quarter hours' drive away, the Tribunal does not accept that this arrangement, together with running his own business, allowed the applicant to focus on his studies as he claimed. In this regard, the purpose of a student visa is to enable people who are not Australian citizens or permanent residents to undertake study in Australia. It is not intended for the purpose of operating a business to provide a person with experience and capital for when they return to their home country, which is the rationale the applicant gave in his statement in 2016 for having established a trading company in Australia.
[41] CB 229
I see no error in the Tribunal’s reasoning. Mr Nawaz had displayed a lack of candour in failing to disclose his business activities in his visa application. He later argued in a submission that those business activities were not inconsistent with his study obligations and, indeed, supported them. The Tribunal was, however, entitled to draw adverse inferences from the initial failure to disclose the activities, and from Mr Nawaz’s choice of residence in Sydney close to his business rather than Canberra, close to his studies. In essence, the Tribunal reasoned that Mr Nawaz was more focused on his business than his studies. That conclusion was open to the Tribunal on the material before it.
Counsel for Mr Nawaz addressed the issue of Mr Nawaz’s health in oral submissions. His circumstances evoke sympathy and they were considered by the Tribunal. The Tribunal accepted at [43][42] that Mr Nawaz was ill and receiving treatment. However, at [36]-[38][43] the Tribunal did not accept that Mr Nawaz’s health condition was the reason he stopped studying. The Tribunal took into account that Mr Nawaz’s enrolment in May 2018 was cancelled for non payment of fees rather than ill health and he did not seek or obtain a deferral of his studies. Indeed, Mr Nawaz submitted a copy of a letter from his doctor stating he was fit to study. While another Tribunal member may have made a more sympathetic decision on this issue, the conclusions reached by the Tribunal were open to it on the material before it and no error in relation to its reasoning and conclusions has been established.
[42] CB 230
[43] CB 228-229
I otherwise agree with the Minister’s submissions concerning the show cause order and the additional issues raised by Mr Nawaz.
After summarising the background to the matter and evidence at [3]-[27], the Tribunal identified the issue before it as whether Mr Nawaz satisfied clause 500.212 of Schedule 2 to the Regulations. That provision required the Tribunal to be satisfied that Mr Nawaz “is a genuine applicant for entry and stay as a student” because, among other things, “the applicant intends genuinely to stay in Australia temporarily”. The Tribunal had regard to the applicable law and to the Direction made under s.499 of the Migration Act. The Tribunal observed that the Direction was not to be used as a checklist but as a guide to considering Mr Nawaz’s circumstances as a whole.[44]
[44] [30]-[32]; as to which, see for example Santos & Anor v Minister for Home Affairs & Anor [2019] FCCA 2318 at [63]-[74]; Patel & Ors v Minister for Immigration & Anor [2019] FCCA 2436 at [69]-[71] and Bala v Minister for Immigration [2019] FCA 600 at [14]-[20]
The Tribunal gave some weight to Mr Nawaz’s parents and wife providing ongoing personal ties to Pakistan. However, it was not satisfied that this provided a significant incentive for him to return to his home country. The Tribunal observed that Mr Nawaz has two brothers in Australia. His mother is spending time in Australia looking after Mr Nawaz. At the time of the second hearing, Mr Nawaz stated that both of his parents were in Australia and he had returned to Pakistan for just over three months between October 2017 and January 2018 to be with his wife. Mr Nawaz said that he was supported by a brother in Australia and had established his own business that provided him with a greater income than he could earn “from a job”. These factors were considered “strong incentives for him to prolong his stay in Australia”.[45]
[45] [33]-[34]
The Tribunal accepted that Mr Nawaz provided evidence of his medical condition, which was Hodgkin lymphoma. Mr Nawaz claimed that his doctor had told him that he had likely suffered from symptoms for two years before his diagnosis in March 2017, which would account for his poor academic performance since arriving in Australia.[46]
[46] [35]
However, Mr Nawaz did not provide evidence that he was unfit to study in January 2018 or that his health was the reason he ceased studying in May 2018 as claimed. In this regard, Mr Nawaz’s representative:
a)had stated in a letter dated 11 July 2018 to the Tribunal[47] that Mr Nawaz was meeting his doctor that day, was having more tests and anticipated receiving an updated medical report. However, the Tribunal received no evidence of tests undertaken in July 2018; and
b)stated in an email dated 31 July 2018 to the Tribunal[48] that evidence would be provided demonstrating that Mr Nawaz needed to be under observation for a week in Royal Prince Alfred Hospital. However, no such evidence was provided. Instead, Mr Nawaz provided a letter from a general practitioner at a medical centre in Campbelltown stating that Mr Nawaz was “receiving medical treatment” from 29 May 2018 to 4 June 2018. The letter did not state that Mr Nawaz had been admitted to hospital for observation and no such documentation was provided from Royal Prince Alfred Hospital. Mr Nawaz did not explain why his medical appointments meant that he could not continue in his course or seek compassionate leave from his education provider.[49]
[47] CB 182
[48] CB 203
[49] [35]-[36]
The Tribunal found that Mr Nawaz’s enrolment in May 2018 was cancelled for non-payment of fees, which was not related to his ill-health. Mr Nawaz claimed he had paid for three subjects and was awaiting approval for exemption from a fourth when his enrolment was unexpectantly cancelled. However, no independent evidence was provided to support this. His claim to have hospitalised for a week was not adequately supported by documentary evidence and the Tribunal was not satisfied that it had occurred. The Tribunal also considered that, since the course began on 7 May 2018 and his medical treatment was between 29 May and 4 June, Mr Nawaz had ample time to finalise enrolment matters and make arrangements if necessary for medical leave. Having considered the above, the Tribunal was not satisfied that Mr Nawaz’s enrolment was cancelled for the reasons that he claimed.[50]
[50] [37]
Although Mr Nawaz had submitted a letter from his doctor stating that he is now fit to study, the Tribunal was concerned that he would not continue to do so or maintain enrolment, as had occurred in the past. The Tribunal accepted that Mr Nawaz suffered from a serious illness which had an impact on his health and well-being. However, after the Tribunal hearing in January 2018 when he claimed to be cleared to study, he again enrolled in a Bachelor degree that did not commence until May 2018. He then returned to Pakistan for two months from February to April 2018. When the course started, Mr Nawaz had not paid his fees and his enrolment was cancelled. It was only after the Tribunal wrote to him about this on 27 June 2018 that Mr Nawaz provided a new COE. The Tribunal did not consider this to be the behaviour of a genuine student.[51]
[51] [38]
The Tribunal observed that in his student visa application, Mr Nawaz stated that he was “Unemployed” because, “I have my complete focus on education that’s why I am not working”.[52]Mr Nawaz only sought to explain his directorship of a company after it was discovered by the Minister’s Department. In this regard, Mr Nawaz claimed that his directorship allowed him to earn more than a job would pay, whilst working less than 20 hours a week. He also stated that, “by running this business” he was “putting into practice the concept of being a young entrepreneur” which was giving him “practical experience that will be of great use back home.[53] The Tribunal considered that Mr Nawaz’s description of himself as unemployed was misleading. It was also concerned that he had given his time to the business whilst his academic endeavours had suffered. Of further concern was Mr Nawaz’s decision at the time of his application to study in Canberra whilst living in Minto, New South Wales. The Tribunal did not accept that this arrangement, together with running his own business, allowed Mr Nawaz to focus on his studies as claimed.[54]
[52] CB 9; see CB 229, [40]
[53] CB 60
[54] [39]-[41]
The Tribunal was not satisfied that Mr Nawaz had demonstrated how the qualifications from his course would benefit him in his own country. He had changed from a Bachelor of Business Administration to a Bachelor of Commerce, to a Bachelor of Accounting. He had not provided evidence or made submissions demonstrating the reason for this change, nor how it would improve his career prospects. Mr Nawaz claimed to be an entrepreneur who had established a successful business in Australia. It appeared from this that Mr Nawaz already had the ability to establish and run a business. Within this context, it was unclear why he wished to undertake a degree majoring in accounting.[55]
[55] [42]
The Tribunal accepted that Mr Nawaz was ill with Hodgkin lymphoma and that he had received treatment. The Tribunal accepted that he was required to undergo periodic monitoring and assessment through regular outpatient appointments. The Tribunal also took into account that Mr Nawaz had re-enrolled more than once in a Bachelor degree. However, having considered all of the available evidence, the Tribunal was not satisfied that Mr Nawaz was likely to maintain enrolment, pass the requisite course units, complete his studies and return to Pakistan. The Tribunal was not satisfied that Mr Nawaz was undertaking the course for genuine purposes and considered that he was seeking to maintain residency in Australia. For these reasons, the Tribunal found that he did not meet clause 500.212 and affirmed the delegate’s decision.[56]
[56] [43]-[47]
The Tribunal’s decision was not legally unreasonable
The Tribunal’s reasoning, as summarised above at [17]-[29] and [41]-[49], demonstrates an intelligible justification for its decision.
To the extent that Mr Nawaz contends that his illness was not considered, it is not clear what is meant by this. As he states in his submissions, the Tribunal considered (and accepted) that he had a serious illness.
The Tribunal accepted that Mr Nawaz’s illness had impacted upon his health and wellbeing. However, the Tribunal was concerned that his behaviour indicated that he was not a genuine student. After he said he was cleared to study in January 2018, he enrolled in a course that did not commence until May. Rather than studying, he returned to Pakistan for two months. When the course commenced, his enrolment was cancelled for non-payment of fees. Although he claimed this was affected by his hospitalisation for a week, he did not provide sufficient evidence of this despite his representative acknowledging the need to do so.[57] Furthermore, it was only after the Tribunal wrote to him in late June that Mr Nawaz re-enrolled and provided the Tribunal with a new COE.
[57] CB 203; 225 [20]; 228 [36]-[37]
Additionally, the Tribunal was concerned by Mr Nawaz’s dedication of time and energy towards running a business despite the issues he had with his studies. Although he had claimed in his application to be “unemployed” to allow “complete focus on education”, this was discovered to be inaccurate. Mr Nawaz’s business endeavours and decision to enrol in a course interstate led the Tribunal to doubt that his focus was on study as claimed. The Tribunal was also not satisfied that Mr Nawaz had demonstrated how the qualifications from his course would benefit him in his own country, given that he already appeared capable of establishing and running a business.
These matters were logically probative of the assessment that the Tribunal was obliged to undertake.
Contrary to what is suggested in Mr Nawaz’s submissions, it was open to the Tribunal at [33] not to be satisfied that the ongoing connection to Pakistan provided by Mr Nawaz’s parents and wife provided a sufficiently “significant incentive” for him to return to his home country. As the Tribunal observed, Mr Nawaz’s mother had spent time in Australia and intended to apply for a further visa. At the time of the second hearing, both of his parents were in Australia. He had returned to Pakistan for just over three months between October 2017 and January 2018 to be with his wife. It was apparent that he was not deprived of contact with his family whilst he was in Australia. Furthermore, Mr Nawaz had two brothers in Australia, was supported by one of them and had established a business in Australia. It was accordingly open to the Tribunal to attribute only “some weight” to the ties he had to Pakistan. The weight to be given to evidence is a matter for the Tribunal and “lies at the heart of merits review”.[58]
[58] Phelps & Child Support Registrar & Anor (SSAT Appeal) [2015] FCCA 1599 at [46]; Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164, 176 [33]
Contrary to what is suggested in Mr Nawaz’s submissions, the Tribunal’s statement at [41] was not unfairly prejudicial to Mr Nawaz. The Tribunal there considered that Mr Nawaz had stated that his business would provide him with experience and capital for when he returned to his home country. Mr Nawaz did so at CB 60, where he referred to the business giving him “practical experience” and “a bit more capital for setting up a business back home”. It is not correct to suggest, as Mr Nawaz does, that he “did not give any such rationale for the company”. The Tribunal had regard to Mr Nawaz’s submission that the business allowed him to comply with the requirement of working less than 20 hours per week and did not cavil with his compliance with this condition.[59]
[59] [39], [40]
Although another decision maker may have decided the matter differently, this is insufficient to demonstrate jurisdictional error. As was found in Minister for Immigration v Stretton at [56] and [74]:[60]
… It is critical that, in exercising a judicial review function, the courts not exceed “their supervisory role by undertaking a review of the merits of an exercise of discretionary power” (at [66]). Application of a standard of legal unreasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker” (at [66]). (To similar effect, see at [30] per French CJ and at [105]-[113] per Gageler J who, arguably, placed even greater emphasis on the “stringency” of the test)…
It is important to bear constantly in mind in applying the head of review of legal unreasonableness the admonition that to describe reasoning as unreasonable (or irrational) may merely be an emphatic way of disagreeing with it (see Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [5] per Gleeson CJ and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The fact that a Court exercising judicial review may disagree with a primary decision-maker’s evaluation of the relevant facts and considerations in the exercise of a statutory discretionary power is insufficient of itself to justify judicial intervention.
[60] [2016] FCAFC 11; (2016) 237 FCR 1
No legal unreasonableness is evident in the manner in which the Tribunal exercised power in the present case. Its conclusions instead fell within the area of “decisional freedom” open to it to evaluate the evidence before it and to draw appropriate inferences in conducting its review.[61]
[61] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [66]; Minister for Immigration v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [62]; Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [51] and [97]
Conclusion
Mr Nawaz has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 November 2019
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