Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 663

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 663

File number: MLG 1521 of 2018
Judgment of: JUDGE LADHAMS
Date of judgment: 25 July 2024
Catchwords:  MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants student visas – whether the Tribunal failed to consider all the facts and circumstances of the applicants’ case – no jurisdictional error – application dismissed
Legislation:

Constitution s 75

Migration Act 1958 (Cth) ss 476, 477

Migration Regulations 1994 (Cth), Sch 2, cll 572.223, 572.322
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31
Division: Division 2 General Federal Law
Number of paragraphs: 47
Date of hearing: 19 July 2024
Place: Melbourne
Applicants: The first applicant appeared in person
Counsel for the First Respondent: Mr R O’Shannessy
Second Respondent: Submitting appearance by the second respondent, save as to costs
Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

MLG 1521 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MUHAMMAD NAWAZ

First Applicant

HAFZA MEMOONA ILYAS

Second Applicant

AHMAD NAWAZ

Third Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

25 JULY 2024 

THE COURT ORDERS THAT:

1.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 LADHAMS:

INTRODUCTION

  1. The applicants are non-citizens who applied for student visas. A delegate of the Minister refused to grant the applicants visas and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. By this application, the applicants seek judicial review of the Tribunal decision.

  2. The applicants raise a sole ground of application alleging that the Tribunal failed to consider all the facts and surrounding circumstances of their case, did not look properly at the facts and made…

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AGLC
Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 663
Case
[2024] FedCFamC2G 663
Decision Date

CaseChat Overview and Summary

The case of Nawaz v Minister for Immigration, Citizenship and Multicultural Affairs involved the applicants seeking a judicial review of a decision by the Administrative Appeals Tribunal (AAT) that affirmed a decision not to grant them student visas. The applicants, specifically the first applicant, argued that the AAT had failed to consider all the facts and circumstances of their case, leading to an unfair decision. The matter was heard by the Federal Court of Australia on 19 July 2024, where only the first applicant appeared and requested a further opportunity to seek legal advice, which was declined by the Court.

The central legal issue the Court had to determine was whether the AAT's decision was tainted by jurisdictional error. The Court had to examine whether the AAT failed to properly consider the applicants’ submissions and evidence, which could constitute a jurisdictional error under the criteria established by the High Court. The Court needed to establish whether the AAT misunderstood the applicable law, failed to consider relevant material, or made an erroneous finding that would undermine the legality of the decision.

The Court concluded that the AAT had not committed any jurisdictional error in its decision. It found that the AAT had considered the applicants' study history and career plans thoroughly, and had provided detailed reasoning for its decision. The Court noted that the AAT had assessed the relevance of the applicants' various qualifications to their future career goals and determined that the applicants had already acquired sufficient knowledge and skills to achieve their ambitions. The Court held that the AAT's decision was lawful and did not contain any error that would warrant judicial intervention. The application for judicial review was therefore dismissed.

In light of the above findings, the Court did not find it necessary to make any orders beyond dismissing the application for judicial review. The decision of the AAT affirming the delegate’s decision not to grant the applicants student visas was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 13 April 2018 the Tribunal sent to the applicants an invitation to attend a hearing on 15 May 2018. The applicants attended the hearing on 15 May 2018 and the first applicant gave evidence and presented arguments in relation to the review. The Tribunal made an oral decision on 15 May 2018 affirming the delegate’s decision.SUMMARY OF TRIBUNAL DECISION The Tribunal identified that the main issue for its consideration was whether the first applicant met the time of decision criterion in cl 572.223(1), which required the Minister (or Tribunal on review) to be satisfied that the applicant intends to genuinely stay in Australia temporarily, having regard to the applicant’s circumstances, the applicant’s immigration history, the applicant’s intentions and any other relevant matter. In considering whether the first applicant met this criterion, the Tribunal had regard to Ministerial Direction No 53. The Tribunal considered the first applicant’s study history, noting that the first applicant arrived in Australia in 2007 with the purpose of obtaining a Master of Information Technology. The Tribunal accepted that the first applicant did not have satisfactory progress in relation to an English course he was required to undertake before his Master course, and was not troubled by this or the applicant’s decision not to undertake a Master course. The Tribunal noted that the first applicant then completed a Diploma in Hospitality Management, a Diploma of Business Management, a Diploma of Information Technology Networking, a Diploma of Marketing and an Advanced Diploma of Marketing and that he had since enrolled in an Advanced Diploma of Hospitality Management, which was due to commence on the day of the Tribunal hearing. The Tribunal accepted the first applicant’s explanation for the change in his proposed study and the Tribunal accepted that career changes were possible, occurred frequently in life and this, of itself, did not pose concerns for the Tribunal. The Tribunal considered the first applicant’s stated career plan to open a 100 seat restaurant upon his return to Pakistan. The Tribunal accepted that the first applicant’s plan was genuine, although it was not particularly well-developed. The Tribunal considered that some of the courses the first applicant had undertaken were relevant to this plan and found that the skills learned in his Diploma of Hospitality Management, Diploma of Business Management and Diploma of Marketing would benefit him in this future career plan. The Tribunal, however, considered that the first applicant had already undertaken sufficient study to achieve his career goals and considered that the first applicant would have been able to return to Pakistan at the end of 2017 armed with the Advanced Diploma in Marketing and his earlier qualifications, which would have enabled him to fulfil his ambition and his dream. The Tribunal considered that the Advanced Diploma that the first applicant was enrolled in at the time of decision added only limited additional value to the applicant’s future plan. The Tribunal took into account the timing of the latest enrolment as well as the nature of the course and considered that the first applicant was using the Advanced Diploma course as a means of supporting the grant of a further student visa for the purpose of prolonging his already long stay in Australia.

Ratio Decidendi

Legal Principle Established

When the matter came before me for hearing on 19 July 2024, only the first applicant appeared at the hearing. The first applicant requested that the Court provide him an opportunity to seek legal advice. I declined to adjourn the hearing to give the applicant an opportunity to seek legal advice, noting that the application had been on foot since 2018 and he therefore had six years to seek legal advice if he wished to do so. After explaining to the first applicant the role of the Court and what the Court can and cannot do, I stood the matter down briefly to give the first applicant an opportunity to consider what he wished to say to the Court in his oral submissions.CONSIDERATIONThe role of the Court in judicial review proceedings The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted): 2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].The applicants’ ground In his oral submissions, the first applicant submitted that he continues to rely on the points raised in the ground of his application. He further submitted that when his matter was before the Tribunal, he provided all his relevant diplomas and degrees and explained about his study and career to the Tribunal. He showed the Tribunal member what he had achieved and what he wanted to do and thought he would get a decision in his favour. He was very excited at the time because he thought the Tribunal understood him and agreed. However, the Tribunal did not make a decision in his favour.